Allahabad High Court
Shashank Mishra vs State Of U.P. Thru Secy. Higher Edu. ... on 15 October, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- SERVICE SINGLE No. - 19841 of 2019 Petitioner :- Shashank Mishra Respondent :- State Of U.P. Thru Secy. Higher Edu. Lucknow And Ors. Counsel for Petitioner :- Manushresth Misra Counsel for Respondent :- C.S.C.,Ashwani Kumar Agnihotri Hon'ble Abdul Moin,J.
Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 and 3 and Sri Ashwani Kumar Agnihotri, learned counsel appearing for respondent no.2.
By means of the present petition, the petitioner has prayed for revising the answer key of Assistant Professor examination in pursuance of the Advertisement No.47 for the subject Hindi. A further prayer is for commanding the respondents to grant the marks to the petitioner to the question which is incorrect i.e. question no.7, Booklet Series 'B' in Part-1 of Assistant Professor examination.
Learned counsel for the petitioner contends that question no.7 contained in the booklet, a copy of which is Annexure-6 to the petition, is "A Compact Disc (CD) can store computer's data over: (A) 420 megabytes (B) 380 megabytes (C) 680 megabytes, and (D) 560 megabytes. It is contended that the petitioner had given the answer as 380 megabytes i.e. option 'B'. It is contended that the examination was held in January 2019 and the answer key was uploaded on 21.01.2019 wherein the answer was indicated as option 'C'. The petitioner submitted his objection on 26.01.2019 while the revised answer key was issued on 30.04.2019 but there was no change in the answer to question no.7 and hence the present petition. Learned counsel for the petitioner has placed reliance on various reference materials to contend that the correct answer to question no.7 would be option 'B' and not option 'C' and hence has prayed that the marks for the said question be given to the petitioner by treating the answer as option 'B'.
Learned counsel for the petitioner has placed reliance on an order of this Court passed in Writ 'A' No.9668 of 2019 dated 28.06.2019 in re: Ajay Kumar Singh vs. State of U.P. and another, a copy of which has been filed as part of Annexure-6 to the petition, to contend that this Court had itself directed for getting of an independent expert opinion when being confronted with contradictory answers of the candidate and the Commission.
Sri Ashwani Agnihotri, learned counsel for respondent no.2, has filed counter affidavit and has contended that the correct answer is option 'C' i.e. 680 megabytes. In this regard, reliance has been placed on the report of the experts dated 28.03.2019, a copy of which has been filed as Annexure B-1 to the counter affidavit. Sri Agnihotri also submits that once the experts themselves have gone through various questions including the correct answer to question no.7, the dispute of which is involved in the present petition and have concluded that the answer is option 'C' consequently there cannot be any occasion for the respondents for accepting the answer given by the petitioner i.e. option 'B'. In this regard, Sri Agnihotri has also placed reliance on the judgment of Hon'ble Supreme Court in the case of Ran Vijay Singh and others vs. State of U.P. and others - (2018) 2 SCC 357 to contend that the Hon'ble Supreme Court has categorically held that the Courts should not at all re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matter and academic matters are best left to academics. It has further been held that the Court should presume the correctness of the key answers and proceed on that assumption and in the event of a doubt, the benefit should go to the examination authority rather than to the candidate. Placing reliance on the aforesaid judgment, it is contended that once the experts have arrived at a conclusive finding that the correct answer is option 'C' consequently the correctness of the same has to be presumed taking into consideration the aforesaid settled proposition of law. Reliance has also been placed on the judgment of this Court in the case of Sudesh Kumar Kashyap vs. State of U.P. and others passed in Writ Petition No.11800 (SS) of 2017 decided on 29.08.2018. Sri Agnihotri also places reliance on a Division Bench judgment of this Court passed in Special Appeal No.340 of 2017 in re: Prem Chandra vs. State of U.P. and another decided on 26.07.2017 to contend that even if the answers could be more than one, the candidates will have to select the one which is more correct out of the alternative answers and thus contends that even if the argument raised by the petitioner is accepted of question no.7 having more than one answer, it would be the opinion of the experts that would prevail. In this regard, reliance has also been placed on a Division Bench judgment of this Court passed in Special Appeal No.821 of 2018 decided on 04.09.2018 in re: Rajendra Singh vs. State of U.P. and others.
To the aforesaid, learned counsel for the petitioner reiterates that a perusal of question no.7 would indicate that it was couched in ambiguous terms and as such even the answer given by the petitioner has to be treated as correct.
Heard learned counsel for the contesting parties and perused the records. From the arguments as raised by learned counsel for the contesting parties and perusal of records, it comes out that the dispute revolves around question no.7 which has already been reproduced above. The petitioner has given answer as option 'B' while according to the Commission the correct answer was option 'C'. Upon the answer key being uploaded on 21.01.2019, the objections were raised by the petitioner to various questions including question no.7 on 26.01.2019. When the revised answer key was uploaded on 30.04.2019 there was no change in the answer that had been given by the Commission to question no.7 i.e. the answer remained as option 'C' while the answer given by the petitioner as option 'B' was not treated to be the correct answer. Learned counsel for the petitioner has placed reliance on various reference material to indicate that the answer given by the petitioner is to be treated as correct. However, the opinion of the experts, a copy of which has been filed as Annexure B-1 to the counter affidavit, would indicate that three experts have examined various answers to various questions and so far as it pertains to question no.7, have arrived at a finding that option 'C' is the correct answer.
Once the experts of the Commission have already given their report dated 28.03.2019 whereby the answer to question no.7 has been indicated as option 'C' consequently this Court has to presume the correctness of the said answer and proceed on that assumption and in the event of a doubt the benefit has to go the examination authority rather than to a candidate. In this regard, the law has been settled by the Apex Court in the case of Ran Vijay Singh (supra). For the sake of convenience, paragraphs 30 and 31 of the said judgment are reproduced below:-
"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 scrutinize 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; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
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 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."
Likewise, the Division Bench of this Court in the case of Prem Chandra (supra) has held as under:-
"The issue with regards to the opinion of subject experts to be acted upon even when the question admits of two options to be correct answers has been settled by the Apex Court in the Case of Kanpur University, through Vice Chancellor & others Vs. Samir Gupta & others; reported in (1963) 4 SCC 309 and Subhash Chandra & others etc. Vs. State of Bihar & others, etc.; reported in 1995 Suppl. (1) SCC 325.
Reference may also be had to the judgment of Division Bench of this Court in the case of U.P. Secondary Education Service Selection Board Vs. State of U.P. & others decided on 2.11.2015, to which one of us (Arun Tandon, J.) was a member. Relevant portion of judgment reads as under:-
"Before examining the correctness or otherwise of the challenge made to the judgment of the Hon'ble Single Judge, this Court may take note of the law as has been explained by the Apex Court in the matter of key-answers supplied by the paper setters being assumed to be right unless demonstrated to be wrong with reference to the standard and prescribed text-books. It is worthwhile to refer to the judgment of the Apex Court in the case of Kanpur University, Through Vice-Chacnellor & Others vs. Samir Gupta & Others, reported in (1983) 4 SCC 309, specifically Paragraph-16, which reads as follows:
"16.Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key-answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U.P. Those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect."
The Apex Court in the case of Subash Chandra & Ors. Etc. vs. State of Bihar & Ors., Etc. reported in 1995 Suppl. (1) SCC 325, has explained that normally the High Court should appoint an expert body and obtain its opinion in the matter of confusing or controversial nature of questions. Relevant paragraph reads as follows:
"Normally speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise."
It is also worthwhile to refer to paragraph-25 of the Judgment of the Apex Court in the case of Subhash Chandra (Supra), which provides that if controversial questions have been set and in relation to some questions, there could be more than one answer. In an objective type of test, more than one answers are given. The candidate is required to tick mark the answer, which is the most appropriate out of the plurality of answers. For ready reference relevant portion of paragraph-25 of the judgment of the Apex Court in the case of Subhash Chandra (supra) is being quoted herein below:
"25. .............
3. Several controversial questions were set and in relation to some questions, there could be more than one answer: In an objective type of test, more than one answer are given. The candidates are required to tick mark the answer which is the most appropriate out of the plurality of answers. The questions and answers were prescribed by the experts in the field with reference to standard books. Therefore, it is incorrect to say that a question will have more than one correct answer. Even if the answers could be more than one, the candidates will have to select the one which is more correct out of the alternative answers. In any event, this is a difficulty felt by ail the candidates.
......................"
In view of the law so declared, we hardly find any good reason to interfere with the judgment and order of learned Single Judge. The special appeal lacks merit.
Special appeal is dismissed."
Similarly, a Division Bench of this Court in the case of Rajendra Singh (supra) has held as under:-
"6. The question, whether a particular answer is correct or not is not to be adjudicated by Court and it is duty of Academics. Court should presume correctness of answer key and proceed on that assumption. Observations made in this context in Ran Vijay Singh and others Vs. State of U. P. and others, 2018 (2) SCC 357, in para 30 and 31 are reproduced hereunder :
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) 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; (ii) 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; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
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 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."
(Emphasis added)
7. In view of above declaration of law and also the fact that revised answer key has been published after matter has been examined by Subject Experts, we do not find any reason to interfere with the view taken by learned Single Judge.
8. We also find that in the present case there is no provision for re-evaluation and, therefore, request of appellant for re-evaluation even otherwise cannot be accepted. Referring to various authorities on the subject, Court in a very recent judgment in Taniya Malik Vs. The Registrar General of High Court of Delhi, AIR 2018 SC 1245 has held :
"Now we take up the second submission with respect to revaluation of answer-scripts. It is settled proposition of law that in the absence of provision it cannot be ordered. In Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr. (2010) 6 SCC 759, this Court has considered various decisions and observed:
"24. The issue of revaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kumar Sheth wherein this Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/ Regulations not providing for rechecking/ verification/ reevaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under:
"14. ...It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. ...
16. ... The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act."
25. This view has been approved and relied upon and re-iterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission, (2004) 6 SCC 714 observing as under:
"7. ....Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answerbook. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for reevaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks."
(emphasis supplied) A similar view has been reiterated in Dr. Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State (1984) 4 SCC 24; Board of Secondary Education v. PravasRanjan Panda (2004) 13 SCC 383; Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603; W.B. Council of Higher Secondary Education v. Ayan Das (2007)8 SCC242; and Sahiti v. Dr. N.T.R. University of Health Sciences (2009) 1 SCC 599.
26. Thus, the law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation."
In Mukesh Thakur (supra) it was laid down that in the absence of provision for revaluation it cannot be resorted to .... In our opinion, for examination in question in the absence of provision for revaluation when the examination was held, it could not be resorted to."
From perusal of the aforesaid judgments, it clearly comes out that once the opinion of the experts is available pertaining to the correct answer, the Court should presume the correctness of the said answer and even in the event of a doubt the benefit has to be given to the examination authority rather to a candidate. In the instant case too the opinion of the experts has been filed as Annexure B-1 to the counter affidavit filed by the respondents whereby the correct answer has been indicated to be the option 'C'. Accordingly, following the aforesaid settled proposition of law, the Court is not inclined to take a different view from that taken by the experts.
So far as the reliance being placed by learned counsel for the petitioner on the order of this Court in the case of Ajay Kumar Singh (supra), suffice to state that a perusal of the said order would indicate that the Court had not been confronted with the expert opinion on the part of the Commission. This would be apparent from perusal of paragraph 3 of the said order wherein the Court has indicated that reference material has been relief upon by both the sides meaning thereby that no expert opinion was produced or referred before the Court. In was in such circumstances that this Court had referred the matter for an independent expert opinion. Thus, the said order would not come to the rescue of the petitioner.
Taking into consideration the aforesaid discussion, no case for interference is made out. The writ petition is accordingly dismissed.
Order Date :- 15.10.2019 A. Katiyar