Bombay High Court
The Maharashtra Public Service vs Tejrao Bhagaji Gadekar on 3 December, 2012
Author: R.M.Borde
Bench: R.M.Borde, U.D.Salvi
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7883 OF 2012
The Maharashtra Public Service
Commission, through its Secretary,
3rd Floor, Bank of India Building,
Mahatma Gandhi Road, Fort,
Mumbai. Petitioner
Versus
1 Tejrao Bhagaji Gadekar,
age: 49 years, Occ: service,
Resident of: B-11, Z.P.Quarters,
Panchakki Road, Aurangabad.
2 The State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya, Mumbai. Respondents
Mr.S.P.Shah, advocate for the petitioner.
Mr.R.S.Deshmukh, advocate for Respondent No.1.
Mr.S.K.Tambe, A.G.P. For Respondent No.2.
CORAM : R.M.BORDE &
U.D.SALVI, JJ.
DATE :03rd December, 2012.
JUDGMENT (Per R.M.Borde, J.):
1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
::: Downloaded on - 09/06/2013 19:27:28 :::{2} wp788312.odt 2 The petitioner - Maharashtra Public Service Commission is taking exception to the decision rendered by the Maharashtra Administrative Tribunal, Bench at Aurangabad, in Original Application No.769/2011, decided on 13.12.2011. The Tribunal, while allowing the Original Application tendered by Respondent No.1 herein, granted a declaration that Respondent No. 1 has achieved the benchmark for general category prescribed by the Commission for holding him eligible to appear for the interview.
3 The Maharashtra Public Service Commission undertook selection process for filling up 74 vacancies of the post of Education Officer in State services. The Commission conducted screening test of the candidates and results were declared on 17.07.2011. The Commission published first answer key soliciting objections from the candidates and after receiving objections and on consideration of same with the assistance of experts in the field, published a revised answer key. The performance of candidates, appearing at the examination, was evaluated as per the revised answer key.
4 Respondent No.1 herein approached Maharashtra Administrative Tribunal at Aurangabad by filing Original Application No.769/2011. It is the contention of Respondent No.1 ::: Downloaded on - 09/06/2013 19:27:28 ::: {3} wp788312.odt that the revised answer key provided by the Commission is erroneous so far as it relates to three questions, namely questions at Sr.Nos.17, 53 and 118. According to Respondent No.1, he has answered all the questions correctly and that he is entitled to get more marks.
5 The Maharashtra Administrative Tribunal considered the objection raised by Respondent No.1 in respect of answer to question no.53 provided under the revised answer key and found that the answer provided by the Commission is erroneous and that the answer recorded in the first answer key is the correct answer.
The Tribunal, as such, granted interim relief and directed the Commission to conduct interview of the candidate. The Tribunal took up the matter for final disposal and recorded a finding that the answers provided by the Commission in the revised answer key relating to question nos.17 and 53 are incorrect and answers provided in the first answer key were the correct answers. The Tribunal granted a declaration that Respondent No.1, on the basis of revaluation of his performance at the instance of Tribunal, has secured 97.5 marks which are above the benchmark prescribed by the Commission and as such, he is eligible to contest further by appearing in the interview.
6 Question no.53 was, "as to which is the longest river in the World?" and options provided were, (1) Ganga, (2) Nile, (3) ::: Downloaded on - 09/06/2013 19:27:28 ::: {4} wp788312.odt Amazon; and (4) Brahmaputra. The first answer key recorded the correct answer as (2) Nile, whereas, revised answer key recorded the correct answer as option no.(3) Amazon. The Tribunal took upon itself the task of examining the correctness of answer on the basis of literature relied upon by the Expert Committee and ruled that the answer provided by the Commission in the revised answer key is incorrect and that "Nile" is the longest river in the world. In paragraph no.6 of the judgment, the Tribunal has observed as below:
"6 Firstly, about the answer to question no.
53, the Commission has now placed on record (marked Exh.X) xerox copy of a document which runs into two pages. First is the noting of the Expert Committee accepting that option 3 (river Amazon) is the correct answer and not option 2 (river Nile). The second sheet is pertaining to literature relied upon by the Expert Committee and we reproduce the relevant portion as under:
"The length of a river can be very hard to calculate. There are many factors, such as the source, the identification or the definition of the mouth, and the scale of measurement of the river length between source and mouth, that determine the precise meaning of "river length". As a result, the length measurements of many rivers are only approximations. In particular, there has long been disagreement as to whether the Nile or ::: Downloaded on - 09/06/2013 19:27:28 ::: {5} wp788312.odt the Amazon is the world's longest river.
The Nile has traditionally been considered longer, but in recent years some Brazilian and Peruvian studies have suggested that the Amazon is longer by measuring the river plus the adjacent Para estuary and the longest connecting tidal canal."
From the paragraph relied upon by the Expert Committee, it is evident that, traditionally Nile river is considered as longer and it is only in recent years some Brazilian and Peruvian studies suggested that Amazon river is longer.
But for the purpose of this opinion also the Brazilian and Peruvian studies have added to the length of Amazon, the adjacent Para estuary and the longest connecting tidal canal. If these details are taken into consideration, it can at least be said that while preparing question papers and first answer key; Expert Committee did not take sufficient precaution to incorporate only those questions for which answers will not be debatable. In spite of this literature, we are unable to agree with the view recorded by the Expert Committee. This is because, even Brazilian and Peruvian studies have added to the length of river Amazon the adjacent Para estuary and the longest connecting tidal canal. We must say that the river Nile is the correct answer and therefore applicant must get improvement of 1.25 marks for his correct answer to question no.53, since Key on that aspect is wrong, even after relying upon the literature that is referred by the Experts Committee.
7 On perusal of the reasons recorded by the Tribunal, it ::: Downloaded on - 09/06/2013 19:27:28 ::: {6} wp788312.odt is evident that the Tribunal has expressed inability to agree with the view recorded by the Expert Committee and recorded its own finding that Nile is the correct answer and proceeded to award additional marks in favour of Respondent No.1. Similar is the case in respect of question no.17. While recording reasons in paragraph no.8 of the judgment, the Tribunal has recorded its disagreement with the view expressed by Expert Committee and recorded a finding that answer provided by the Commission is incorrect, whereas, answer provided in first answer key is the correct answer.
8 On perusal of the judgment delivered by the Tribunal, it is evident that the Tribunal has entered into the area of examining correctness of the opinion expressed by the Expert Committee and recorded a finding that the opinion given by the Expert Committee is incorrect. The Tribunal has taken upon itself the task of examining the literature relied upon by the Expert Committee and provided by the petitioner and has arrived at a conclusion that the answers recorded in the revised answer key, which was the basis for assessing performance of the candidate at examination, was incorrect so far as it relates to two questions, namely question no.17 and question no.53.
9 It is, thus, evident that the Tribunal has adopted role of expert and encroached upon their field while examining correctness of the answers provided by the Commission in the ::: Downloaded on - 09/06/2013 19:27:28 ::: {7} wp788312.odt revised answer key. We are of the considered opinion that it was not open for the Tribunal to encroach upon the field of experts and record its own findings. The Tribunal cannot be said to possess expertise to examine correctness of the answers provided by the Commission. The Tribunal has exceeded its jurisdiction while recording a finding that the answers provided by the Commission in the revised answer key, relating to two questions, is erroneous.
In this context, it would be advantageous to refer to the judgment of the Supreme Court in the matter of Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & another, reported in (2010) 6 SCC 759. The Himachal Pradesh Public Service Commission advertised 13 vacancies of Civil Judge (Junior Division) providing the eligibility criteria and mode of selection.
Respondent, before the Supreme Court, tendered an application in pursuance to advertisement and was called upon to appear for written test. He failed to secure 45% marks in the paper of Civil Law II though he had secured 50% marks in aggregate.
Respondent, before the Supreme Court, filed Writ Petition seeking direction for revaluation of the paper of Civil Law II and appointment to the said post as a consequential relief. The High Court directed the appellant-Commission to produce answer sheet of the Respondent and thereafter proceeded to pass an order directing the appellant-Commission to arrange for a special interview of the Respondent. The High Court recorded a finding that there is inconsistency in framing question nos.5 and 8 and in ::: Downloaded on - 09/06/2013 19:27:28 ::: {8} wp788312.odt evaluation of the answers to the said questions. The High Court also directed to send answer papers of the Respondent to another examiner and on revaluation, it was found that Respondent ought to have secured 119 marks. On the basis of report of revaluation, the High Court disposed of the writ petition directing the Commission to issue letter of appointment to the Respondent.
10 The question, that arose before the Supreme Court, as to whether in the absence of there being any provision for revaluation or rechecking of answer sheets, was it permissible for the High Court to direct revaluation of the answer sheets and as to whether the Court can take the task of examiner/Selection Board upon itself and examine discrepancies and inconsistencies in the question papers and evaluation thereof. After considering rival contentions, the Honourable Supreme Court, in paragraph 20 of the judgment, has observed thus:
"20 In view of the above, it was not permissible for the High Court to examine the question papers 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 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 ::: Downloaded on - 09/06/2013 19:27:28 ::: {9} wp788312.odt 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."
11 In the reported matter, although selection process for appointment of Civil Judges was a matter of challenge before the High Court and objection was raised in respect of framing of questions in the paper of Civil Law II, still the Supreme Court ruled that it was not permissible for the High Court to examine question papers and answer sheets itself when the Commission had assessed inter se merit of the candidates. The Supreme Court has observed that had it been other subjects like Physics, Chemistry and Mathematics, it was not understood as to whether such course could have been adopted by the High Court.
12 In the instant matter, the objections raised by Respondent No.1 are referrable to the questions not concerning Law, but in respect of Subjects Geography and General Knowledge.
The Tribunal took up itself the task of experts and in doing so, overruled the opinion of experts. In our opinion, the Tribunal has transgressed the limits while entertaining the challenge raised in the Original Application. Apart from this, it is also to be taken note of that whatever deficiencies, if any, are uniform to all those candidates who appeared in the examination. The Tribunal ought not to have entertained the petition of one candidate and issued ::: Downloaded on - 09/06/2013 19:27:28 ::: {10} wp788312.odt directions to consider his claim. Consideration of claim of one of the candidates, amongst numerous other similarly situated candidates, is surely likely to cause injustice to those candidates who have appeared for the examination and attempted those questions. In our opinion, the Tribunal has exceeded its jurisdiction in causing interference in the matter and issuing directions to the Commission to consider claim of Respondent No.
1. 13 Respondent No.1 has placed reliance on the judgment in the matter of State of U.P. and another Vs. Johri Mal, reported in 2004 AIR SCW 3888 and more particularly paragraph no.30 thereof, which reads thus:
"30 It is well settled that while exercising the power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the Court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision maker's opinion on facts is final. But while examining and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the ::: Downloaded on - 09/06/2013 19:27:28 ::: {11} wp788312.odt grounds of illegality, irrationality or procedural impropriety. How far the Court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touch-stone of the tests laid down by the Court with special reference to a given case. This position is well settled in Indian Administrative Law. Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker."
14 According to Respondent No.1, for limited extent to scrutinize the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker. It is contended that the Tribunal has not committed any error in entertaining the questions of facts while scrutinizing the decision making process. We are afraid, that the submission canvassed by the Respondent No.1, cannot be accepted for the reason that the Tribunal, in the instant matter, has assumed the role of an expert while entertaining the questions of facts and has even overruled opinion of the experts. The Tribunal cannot be said to be possessed of the expertise in the specialized field. Even in respect of matters concerning the field of Law, as opined by the Supreme Court, it is not permissible for the Courts or Tribunals to entertain ::: Downloaded on - 09/06/2013 19:27:28 ::: {12} wp788312.odt the objection and substitute its own opinion in place of opinion of the experts.
15 For the reasons recorded above, the judgment and order passed by the Tribunal in Original Application No.769/2011, decided on 13.12.2011, is unsustainable and deserves to be quashed and set aside and same is accordingly quashed and set aside.
16Rule is accordingly made absolute. There shall be no order as to costs. In view of disposal of Writ Petition, pending Civil Application Nos.10728/2012 and 10729/2012 and 13559 of 2012 do not survive and stand disposed of.
U.D.SALVI R.M.BORDE
JUDGE JUDGE
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