Punjab-Haryana High Court
Kunal Bansal vs Punjab Public Service Commission And ... on 1 August, 2018
Author: Jaswant Singh
Bench: Jaswant Singh
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
(1) Civil Writ Petition No. 14303 of 2018 (O&M)
Date of Decision: 01.08.2018
Kunal Bansal
.......... Petitioner
Versus
Punjab Public Service Commission, Patiala and another
.......... Respondents
(2) Civil Writ Petition No. 13627 of 2018 (O&M)
Honey Kumar and another
.......... Petitioners
Versus
Punjab Public Service Commission, Patiala and another
.......... Respondents
(3) Civil Writ Petition No. 15764 of 2018 (O&M)
Hardeep Kaur and another
.......... Petitioners
Versus
Punjab Public Service Commission, Patiala and others
.......... Respondents
(4) Civil Writ Petition No. 18541 of 2018 (O&M)
Ravinder Dhiman
.......... Petitioner
Versus
Punjab Public Service Commission, Patiala and others
.......... Respondents
(5) Civil Writ Petition No. 16083 of 2018 (O&M)
Rahul Thapar and others
.......... Petitioners
Versus
State of Punjab and others
.......... Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
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Present: Mr. H.S. Bedi, Advocate for the petitioner(s)
(CWP No. 14303 of 2018)
Mr. Pankaj Garg, Advocate for the petitioner(s)
(CWP No. 13627 of 2018)
Mr. Mohit Sadana, Advocate for the petitioner(s)
(CWP Nos. 15764 & 18541 of 2018)
Mr. Rajeev Anand, Advocate
for the petitioner(s) in CWP No. 16083 of 2018;
for the applicant(s) in CM No. 9136 of 2018 in CWP No. 14303 of 2018
and CM No. 9143 of 2018 in CWP No. 13627 of 2018.
Mrs. Anu Chatrath Kapur, Additional Advocate General, Punjab
fort the respondent(s)/State and assisted by
Mr. Satinder Kumar, Clerk, Office of PPSC, Patiala.
Mr. Gurminder Singh, Senior Advocate, assisted by
Ms. Harpriya Khaneka, Advocate for the applicants
in CM Nos. 9659-60 of 2018 in CWP No. 14303 of 2018
Mr. Dixit Garg, Advocate for the applicant
in CM No. 10651 of 2018 in CWP No. 14303 of 2018
Mr. A.P. Kaushal, Advocate
for respondent Nos. 5 to 11 in CWP No. 15764 of 2018.
Mr. K.S. Lakhanpal, Advocate
for respondent Nos. 18 to 21 in CWP No. 15764 of 2018.
****
JASWANT SINGH, J.
CM No. 9143 of 2018 in CWP No. 13627 of 2018;
CM Nos. 9136, 9659 & 10651 of 2018 in CWP No. 14303 of 2018 Prayer in the present applications is for impleadment of the applicant(s) as party respondents in respective writ petition(s).
For the reasons stated in the application(s), duly supported by the affidavit(s), the same are allowed and the applicants are impleaded as party respondents in respective writ petition(s), as prayed for.
Amended memo of parties are taken on record.
Registry to tag the application(s) at proper place and paginate 2 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -3- the paper book accordingly.
MAIN CASE(S)
1. This order shall dispose of the present/aforementioned five writ petitions as counsel for the parties are ad-idem that the facts and points in issue raised in these cases are common in nature. For the sake of convenience, the facts have been taken from the case of CWP No. 14303 of 2018 "Kunal Bansal versus Punjab Public Service Commission and another".
2. The petitioner impugns the Public Notice dated 04.05.2018 (Annexure P-10) and revised combined merit list (Annexure P-12) issued by the respondent-Punjab Public Service Commission vide which the Question No. 95 of Booklet-A in the competitive examination for the post of 'Inspector-Audit' in the Department of Cooperation, has been withdrawn illegally and the Merit List has been revised to the detriment of the petitioner as he was in merit in the result declared on 18.10.2017 (Annexure P-6) and has been out of merit in the revised result declared on 04.05.2018, whereas the Question No.95 could not have been withdrawn by respondent No.1 as there was no ambiguity in the same.
3. Amongst various pleas taken by the petitioner, it is submitted that respondent No. 1-Punjab Public Service Commission issued an advertisement dated 29.11.2016 (P-1) for filling up 545 posts of Inspector Audit, Cooperative Societies in the Department of Cooperation. Government of Punjab. As per the Public Notice dated 28.04.2017 (P-2) issued by respondent No. 1, the competitive examination for the said post was scheduled and conducted on 09.07.2017.
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4. It is contended that that question paper was set in 4 different series i.e. Set 'A', 'B', 'C' and 'D'. All the questions in each series were same and the only difference was in regards to numbering of questions in each series. Respondent No. 1/Punjab Public Service Commission uploaded the Question Booklet of Series 'A' (P-3) along with its answer key (P-4) on its official website.
By a Public Notice dated 09.07.2017 (P-5), objections from candidates were invited from the candidates in regard to any of the question which have been asked in the competitive examination and the said objections were to be sent through email to the Commission along with supporting evidence within 4 days i.e. from 09.07.2017 to 13.07.2017. Along with the Public Notice, a Performa for sending the objections was also provided.
5. Objections were filed by the candidates in which objection was also raised to Question No. 95 in Question Booklet Series 'A' and it was submitted that the answer to the question is Option 'B' and 'C' and option 'D' is not the correct answer of Question No. 95. It is contended that the Commission took more than three months to evaluate the various objections filed by the candidates and after taking the expert opinion reached the conclusion that answer to Question No. 95 is option "B and C". Thereupon, a Public Notice dated 18.10.2017 (P-6) was issued wherein answer to Question No. 95 was corrected and it was declared that Option 'B and C' is the correct answer to Question No. 95 and revised answer key for Series Set 'A' (P-7) was issued. Question No. 95 in regards to which two options 'B' and 'C' were shown to be correct is as under:-
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95. Which of the following income is taxable under the head of "Income from House Property"?
(a) If a person is engaged in a business of letting house properties
(b) House used for a business whose income is exempted
(c) Income from house situated outside India
(d) All of the above
6. Based of the aforesaid exercise, respondent No. 1 uploaded a Combined Merit List on 18.10.2017 wherein the name of the petitioner, Kunal Thapar, figured at Merit No. 258 as he obtained 183 marks and there were total 266 candidates to be recruited in the General Category. The petitioner was in the zone of being recruited as Inspector Audit as there was no further process like interview etc. to be conducted.
It is contended that upon the start of counseling, a CWP No. 25502 of 2017, "Anubhav Vats versus Punjab Public Service Commission and another" was filed wherein the issue was raised that there cannot be two correct answers to a question and notice of motion was issued in the matter by this Hon'ble Court. The Punjab Public Service Commission, respondent No. 1 appeared in the matter and submitted that a conscious decision has been taken to withdraw Question No. 95 in Booklet Series 'A' and to grant equal marks to all the candidates. In these circumstances, the Civil Writ Petition No. 25502 of 2017 was disposed of as infructuous vide order dated 20.04.2018 (P-9). In the said petition, the petitioner along with other candidates filed a Civil Miscellaneous application, CM No. 4377-79 of 2018 for being impleaded as respondents but the said application was dismissed.
7. Thereafter, the impugned Public Notice was issued on 5 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -6- 04.05.2018 (P-10) wherein the Commission stated that in compliance with the order of this Hon'ble Court, Question No. 95 of Booklet 'A' is withdrawn by the Commission and the revised answer key (P-11) is issued accordingly. The petitioner contends that it was mentioned that Question No. 95 of booklet 'A' has been withdrawn in compliance of the order passed by this Hon'ble Court in CWP No. 25502 of 2017 whereas a statement was made by the Commission during course of proceedings in said case that they've taken a conscious decision to withdraw question.
Based on this revision of this answer key, the combined merit list was revised on 04.05.2018 (P-12) and the petitioner who was figuring at Merit No. 258 was shown at Merit No. 289 having the same marks as 183. Therefore, those candidates who had given wrong answer to the said question on earlier occasion were also given the benefit of three marks and were shown above the petitioner.
8. The petitioner has also placed reliance on the judgments passed by Hon'ble Supreme Court to state that the Commission had earlier rightly corrected Option 'D' of Question No. 95 to option "B and C" and that the Commission/respondent No. 1 could not have withdrawn the question as there was no ambiguity in the same.
The petitioner has contended that the original Option 'D' of Question No. 95 mentioned "all of the above" as the correct answer whereas it is a fact that option "A" was incorrect therefore Option "D" cannot be correct in any manner and thus, by the revised answer key dated 18.10.2017, the answer to Question No. 95 was given as Option 'B and C'.
The petitioner has also raised the plea that respondent No. 1/ 6 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -7- Punjab Public Service Commission, while holding competitive examination for making the appointment on other posts in different departments has awarded marks to the candidates who have marked either of the two correct options. The holding of two correct answers to a question can never be a ground to withdraw a question. The petitioner has given reference to the competitive examination for the post of sub divisional engineer (Civil) in the Department of Education, Government of Punjab wherein in the Receipt dated 15.03.2017 for Question No. 50, 52, 67, 86 there are 2 options which are held to be correct answers. Similar references made to case of Agricultural Development Officer, Homeopathic Medical Officer, Lecturer Textile Chemistry etc. the copies of such answer sheets are annexed with the Civil Writ Petition.
The petitioner is stated to have given an application under Right to information act on 01.05.2018 (P-21) for information with regard to opinion given by the expert when objections were raised on the answer key loaded on 09.07.2017.
The petitioner has raised the main ground that in a competitive examination question can only be withdrawn if there is serious ambiguity in the same and there is no correct answer in the option given. The petitioner further contents that there was no ambiguity in the question and there were correct answers in the options also, therefore, there was no ground to withdraw the question and award 3 marks to every candidate which has worked detrimental to the candidates like the petitioner.
9. Upon the issuance of notice of motion, the parties appeared and the Respondents were directed to file an affidavit in respect of the expert 7 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -8- opinion taken in the case in respect of Question No. 95.
10. Reply on behalf of Respondent No. 1 and 2 by way of affidavit of Secretary Punjab Public Service Commission Patiala was filed by the Respondents 1 & 2 on 30.07.2018, wherein it was mentioned that the Punjab Public Service Commission has a procedure for forming a Sub-Committee for all examinations consisting of two members of the Commission. All the objections of answer key received from candidates and the responses to such objections from the subject experts are analysed by the Sub Committee and a final decision about the correct answer is arrived at based on the expert opinion. It is stated that the Subject Expert Committee consist of 2 experts and if both the experts are against the objection, the objection stands negated and if both the experts are in favour of the objection then the objection is approved. However in case the opinion of the two experts is divided than both the answer may be taken as correct. The Sub Committee takes a considered decision based on fresh subject expert decision whether to allow one answer or 2 answers or withdraw the question. In the case in hand based on averments in the counter Affidavit, the following opinions stated to have been received from subject experts:
" Expert 1: u/s Property is used for business, No annual value is determined under house property head and annual value is the basis for compo line taxable income from house property. Candidate 'C' answer is correct, annual value is the letting value of house, so no tax under the head house property, if properly used for business purpose of the assesses himself Expert 2: option (b) and (c) will come under the head House Property, but (a) is doubtful. Candidate's objection is supported by Supreme Court judgement in which company assesses is there, Company has all 8 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -9- income from business of letting out house property. Supreme Court held that it will be under the head Business or Profession. So, in this option i.e. (a) nature of assesses is not mentioned. So, it is little bit confusing. I think question should be withdrawn."
As per the stand of the Punjab Public Service Commission, it was based on the above subject experts' opinion, the Commission Sub Committee decided the correct answer to be option 'B' and 'C'. Thereafter Civil Writ Petition No. 25502 of 2017 was filed against Question No. 95 of question booklet series 'A' that there is ambiguity in the Question, therefore the respondent PPSC should have withdrawn the question. The PPSC upon considering the subject experts opinion in light of the contentions in said CWP, found that Expert No. 2 had indeed felt that while Option 'B and C' are correct and opined that the question may be withdrawn because in the option - (a) nature of assesses not mentioned so it is little bit confusing.
11. It has been contended by the respondent Punjab Public Service Commission that they follow the norm 'any benefit of doubt' in the question paper should go in favour of all the candidates and made the following submissions :
"7. PPSC follows the norm that 'any benefit of doubt' in the question paper should go in favour of all the candidates. Since 1 of the experts had already created 'doubt' about answer option (a), and had opined that the question should be withdrawn, therefore any further additional expert opinion became irrelevant to the case. Even if 2 more fresh experts say that there is no doubt anywhere, but the very fact that one subject expert has expressed 'doubt' so the 'doubt' still persists. The doubt cannot be quantified, whether it is small doubt or big doubt, and it may have confused most of 9 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -10- the candidates. The benefit of such a 'doubt' has to go to all the candidates.
8. It is reiterated that PPSC may set 100 questions in a question paper. If there is some doubt in say 1 or 2 of the questions, then PPSC prefers to have a competition amongst the candidates out of the remaining 99 questions. PPSC practices are based on justice to 'all candidates'. Even if one odd candidate may feel harm because he may have known the answer to that question, but if there is a doubt in that question, that question has to be dropped for the sake of justice to all candidates. Such doubts may arise because of Paper Setters knowledge /perceptions. The Hon'ble High Court may also be pleased to appreciate that PPSC allow a question paper to pass through three experts before the examination (it is abetted by two experts, in addition to one paper setter), but some 'doubt' may persist. Under the circumstances, the best solution for PPSC is to drop that question. Thereafter, the actual competition is restricted to 'remaining questions only', which is equally fair to all candidates."
Respondent No. 1, Punjab Public Service Commission, has refuted that the petitioner's contention that there was no doubt in the question is not true at all and the same has been clearly established in the opinion of one of the subject expert. The PPSC submitted that they have acted in best interest and justice to all candidates and PPSC action is in accordance with the recommendation of the subject expert.
12. I have heard the counsel for the parties and have also gone through the records of the case regarding the Question No. 95 in dispute as also the compilation of judgments submitted by Rajeev Anand Advocate appearing in CM No. 9136 of 2018 in CWP No. 14303 of 2018 for impleadment of some candidates falling in the Combined merit list dated 10 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -11- 04.05.2018.
13. The common questions which arises for determination in these writ petition are :
(i) Whether the Punjab Public Service Commission has the power to grant marks to all the candidates for the question, which has been found to be ambiguous -
incorrect by the Commission itself and deleted? and;
(ii) Whether the said power has been correctly applied in the facts of this case?
14. Respondent No. 1/Punjab Public Service Commission is a Constitutional Authority and has been constituted under Article 315 of the Constitution of India. Article 320 of the Constitution provides for the functions of the Public Service Commission and same is constituted for all matters relating to methods of recruitment to civil services and for civil posts; on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers etc. For the purpose of holding the examination, to select the candidates unless the statutory Rules specifically provide for a particular procedure to be followed, the Commission is authorized and entitled to, in exercise of its inherent powers to take decisions, actions and steps which would be in consonance with the purpose of holding examination and with it, all the powers, which would be essential for successfully performing it. The power to regulate would include the power to adopt any method in accordance with which the purpose of holding the examination successfully 11 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -12- is completed.
15. As per the counter affidavit filed by respondent No. 1/PPSC, they have a procedure for forming a Sub-Committee for all examinations consisting of two members of the Commission and all the objections of answer key received from candidates and the responses to such objections from the subject experts are analysed by the Sub Committee and a final decision about the correct answer is arrived at based on the expert opinion. In the present case based on the subject experts' opinion, the Commission having found that Expert No. 2 had felt that Option 'B and C' are correct options but opined that the question may be withdrawn because in the option - a nature of assesses not mentioned make it a little bit confusing for the candidate to answer the Question and thus decided as per their norm that 'any benefit of doubt' in the question paper should go in favour of all the candidates acted in best interest and justice to all candidates and thus withdrew the Question No. 95 by giving benefit of three marks to all the candidates.
16. Similar controversy regarding deletion of the incorrect questions came before this Court in CWP No. 10309 of 2012 titled "Jitender Kumar versus Haryana Public Service Commission" decided on 30.08.2012, 2012 (4) S.C.T. 283. While considering the same, this Court held as follows:-
" Under the statutory rules and the advertisement it has been laid down that the said examination would be held by the Commission which shall invite applications from the candidates for appearing in the examination and 12 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -13- shall also prescribe the form and manner the application should be made and accompanied by the documents as may be prescribed by the Commission. The Commission, after conclusion of the examination, is required to forward the names of the candidates in order of merit to the Government who are declared as qualified in the examination by the Commission. This leaves no manner of doubt that the process of examination, the conduct of examination, which includes all the three stages, is the responsibility of the Commission and for fulfilling this mandate the Commission obviously is entitled to take all necessary steps/actions/decisions so that the selection process is concluded successfully as per the mandate of the rules.
That apart Commission being a Constitutional Authority, which has been given the duty to conduct examination for appointment to the services of the State under Article 320 of the Constitution, has an onerous responsibility to conduct the same fairly and successfully.
It is by now settled proposition of law that where an Act or the Rules confer a jurisdiction, it impliedly also grants the power of doing all such acts and/or employing such means as are essentially necessary to its execution. Thus, to discharge the duties effectively which have been conferred on a Constitutional/Statutory Authority/Body, 13 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -14- the power to take such steps, decisions or actions are inherent in the statute if they are to essentially carry out the effect of the objects of the statute/rules. The responsibility to conduct the preliminary examination and that too successfully and subsequently the main examination and personality test is upon the Commission.
In doing so even if there is no specific power conferred upon the Commission to take a decision or to act in a particular manner, would not leave the Commission powerless to take appropriate steps/actions as and when any such situation arises.
In the light of the above, it cannot be said that the Commission did not have power to take such a decision which would be essentially necessary for the execution of the purpose for which the Commission has been constituted and has been assigned the duty to conduct the examination under the Constitution as also under the statutory rules. For exercising such authority no specific power is required to be conferred on the Commission as the said power/authority is inherent in the Commission.
Therefore, the contention of the petitioners that the Commission did not have any jurisdiction or authority to take any action in the absence of the specific powers conferred on it cannot be accepted. However, the decision which has been taken by the Commission, the 14 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -15- consequences and effect thereof and the process of such decision making is always open to judicial review."
It is settled proposition of law, as held above, that where an Act or the Rules confer a jurisdiction, it impliedly also grants the power of doing all such acts and/or employing such means as are essentially necessary to its execution. Thus, it is concluded in response to question No. (i) for determination that respondent No. 1/Punjab Public Service Commission, is having the power to delete the incorrect questions and proceed to take further steps which should be reasonable and just in a given situation as in the present case.
17. The next question which requires determination is that whether such exercise of deletion/withdrawing of Question No. 95 has been undertaken in fair and just manner.
In the facts of the present case, the issue regarding Question No. 95 was considered by the Sub Committee of 2 members of the Commission based on the opinions rendered by the Subject Expert Committee consisting of 2 experts. Expert-2 gave a clear opinion that in option (a) nature of assesses is not mentioned, therefore, the Question itself becomes very confusing and casted a doubt on the Question No. 95 itself and recommended the same to be withdrawn. The contention of the petitioner that there was no ambiguity and there was only the issue of two correct answers is not correct in view of the subject expert opinion available with the Respondent No. 1 Commission.
Initially, the Commission Sub Committee decided that the correct answer to be declared as option 'B' and 'C'. However, upon filing of 15 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -16- the Civil Writ Petition No. 25502 of 2017 against Question No. 95 of question booklet series 'A' that there is ambiguity in the Question, and consideration based on the opinion of Expert -2, a conscious considered decision was taken in consonance with the Commission norm that 'any benefit of doubt' in the question paper should go in favour of all the candidates. It was in the situation that since there was Expert Opinion regarding doubt in question and guided by the consideration that the degree of doubt in mind of the candidate cannot be quantified, whether it is small doubt or big doubt, and it may have confused most of the candidates or not, the decision to give the benefit of such a 'doubt' has to go to all the candidates was taken. For the deleted question all candidates have been granted three marks. This complete process including the remedial steps of the Commission is just and reasonable bereft of any bias or arbitrariness and thus approved.
18. It is settled law that in the cases, where no mala fide is alleged against the members of the Recruiting Agency / Selection Boards, the Courts should be slow to interfere in the selection process. In case of Dr. M.C. Gupta and others Vs. Dr. Arun Kumar Gupta and others, 1979 (2) S.C.C 339 the Hon'ble Supreme Court was considering a controversy regarding selection made by the State Public Service Commission for two posts of Professors of Medicines in the State Medical Colleges. Having considered the matter, the Hon'ble Supreme Court had observed as under:-
" When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the sophisticated field, probing to the research experience in technical subjects, the courts should be slow to interfere with the opinion expressed by 16 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -17- experts unless there are allegations of malafides against them. It would normally be prudent and safe for the courts to leave the decision of academic matters to experts who are more familiar with the problem they face than the courts generally can be...."
In case of Dalpat Abasahed Solunke & Others V. Dr. B.S. Mahajan & others (1990) 1 S.C.C 305 the Hon'ble Apex Court had observed as follows:-
"It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
In support of this contention, reliance has also been placed upon the Division Bench decision of Allahabad High Court in "Tileshwar Ram and another vs. State of U.P. and others", 1986(4) SLR 487; the judgment of the Division Bench of the Andhra Pradesh High Court in "P.Subbarao and others vs. Andhra Pradesh Public Service Commission, 17 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -18- Hyderabad", AIR 1961 Andhra Pradesh 378 in support of the submission that the High Court exercising its powers under Article 226 of the Constitution of India has no jurisdiction to interfere lightly with the internal affairs of the procedure and practice in conducting examination for recruitment into State service by the Commission.
19. In the present case, there is no ingredient which will require indulgence of this Court. In the present process, there is no illegality, patent material irregularity or proved mala fides affecting the Selection. The present case is the case where answer to Question No. 95 of Question Booklet Series 'A' was having answers in which Option 'B and C' were agreed to be correct answer but doubt was raised about the correctness of option 'A' thus leading to an anomalous situation. If the doubt about the Option 'A' that the same does not reflect the nature of the assessee then same is to be supported by a clarification. In that case if nature of assessee is given (clarified) then the answer may be correct for Option 'A' also as considered by the subject expert in case of the 'Company' and in that case 'D' i.e. 'all of the above' would also have been the correct answer. Once the expert has opined that there is a doubt in that question itself, that question has to be dropped for the sake of justice to all candidates and the actual competition is restricted to 'remaining questions only', which is equally fair to all the candidates. The various instances of other recruitments by respondent No. 1/Commission pointed by the petitioner, wherein in holding competitive examination for making the appointment on other posts in different departments, respondent No. 1/Commission has awarded marks to the candidates who have marked either of the two (02) correct options is not 18 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -19- applicable on the facts of this case in view of the subject expert opinion referring to the doubt in the question, thus the said ground raised by the petitioner is considered and rejected.
20. Further, there is no allegation of mala fide upon the Commission and, therefore, what is required to be looked into is whether any prejudice has been caused by this action of the Commission to the petitioners or similarly situated candidates but answer to this question has to be in the negative. It has been admitted by the counsel for the petitioners during the course of hearing that Commission could have proceeded to take remedial steps to correct the mistake, which has occurred in the conduct of the examination, for which a fair and just procedure should have been adopted by the Commission so that no candidate is unduly benefitted or denied of a right which he is entitled to. It has also been admitted that in examination consisted of 100 questions each and every question is valued at three marks. There was no negative marking. Obviously, had the questions been correct and the candidates attempted the same, they would either get three marks for the correct answer or nil mark for the incorrect answer. When the question itself has been found to be doubtful resulting in ambiguity, the logical conclusion, which can be drawn, is that there can be no correct answer to such a question. Faced with the situation, Commission had to take the call either to grant marks to all candidates for the deleted questions and to evaluate the result of the candidates out of full 300 marks or to grant no marks to any candidate for the said questions and evaluate and compile the result of the candidates out of 297 marks after deleting the incorrect questions. Commission chose the first option and granted all 19 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -20- candidates three marks across the board. In either of the situations, no prejudice would be caused to the candidates as the comparative difference of marks between the candidates would remain the same. By this process what would happen is that the cut off merit would go up by three marks when the same are added to all and the same would come down by three marks when three marks are deleted of all the candidates. The net result thus remains the same.
21. Based on the submissions and the rival contentions, this Court is satisfied with the corrective steps taken by respondent No. 1/Commission for rectifying the mistakes, which crept in the process of the examination qua the Question No. 95 in question. Keeping in mind the principles, as laid down by the judicial precedents referred to above, this Court concludes the question at issue No. (ii) by holding that the action of the Commission is just and reasonable and the power to grant marks to all candidates for the ambiguous question No. 95 in issue has been correctly applied in the facts of the case. The impugned action cannot be faulted with and thus requires no interference in exercise of writ jurisdiction.
In view of the above, the writ petitions bearing CWP Nos. 13627, 14303, 15474 & 18541 of 2018, therefore, stand 'dismissed'.
The counsel in CWP No. 16083 of 2018 titled "Rahul Thapar and others Versus State of Punjab and others", wherein the petitioners are seeking a Mandamus/direction for issuance of appointment letters without any delay on the basis of even the revised merit list dated 04.05.2018, as they fall in both the old merit list dated 18.10.2017 as well as in the revised merit list dated 04.05.2018, prays for withdrawal of the writ 20 of 21 ::: Downloaded on - 06-10-2018 22:52:57 ::: C.W.P. No. 14303 of 2018 (O&M) and '04' other connected cases -21- petition as not pressed in view of the decision rendered in the other aforesaid writ petitions. The prayer is allowed and CWP No. 16083 of 2018 is 'dismissed as not pressed'.
Since the main case(s) has been decided/dismissed, no orders are required to be passed in the pending miscellaneous application(s), if any, and the same stand(s) disposed of.
August 01, 2018 ( JASWANT SINGH )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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