Madhya Pradesh High Court
Jyotsna Upadhyay vs Madhya Pradesh Public Service ... on 17 July, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
W.P. Nos.10750/2018, 9659/2018, 9745/2018, 9926/2018, 9966/2018,
12127/2018, 12143/2018, 12146/2018, 12149/2018, 12151/2018,
12152/2018, 12170/2018, 12219/2018, 12260/2018, 12270/2018, 12272/2018,
12276/2018, 12284/2018, 12290/2018, 12304/2018, 12305/2018,
12309/2018, 12311/2018, 12319/2018, 12323/2018, 12330/2018,
12351/2018, 12381/2018, 12407/2018, 12410/2018, 12415/2018, 12424/2018,
12431/2018, 12432/2018, 12433/2018, 12435/2018, 12442/2018, 12443/2018,
12445/2018, 12446/2018, 12452/2018, 12457/2018, 12458/2018, 12459/2018,
12470/2018, 12476/2018, 12479/2018, 12503/2018, 12509/2018, 12516/2018,
12517/2018, 12519/2018, 12550/2018, 12559/2018, 12568/2018, 12590/2018,
12591/2018, 12592/2018, 12605/2018, 12609/2018, 12610/2018, 12611/2018,
12622/2018, 12623/2018, 12626/2018, 12633/2018, 12636/2018, 12655/2018,
12674/2018, 12678/2018, 12692/2018, 12725/2018, 12752/2018, 12776/2018,
12823/2018, 12835/2018, 12837/2018, 12853/2018, 12868/2018, 12879/2018,
12881/2018, 13050/2018, 13389/2018, 13551/2018, 13581/2018, 13634/2018,
13727/2018, 13826/2018, 13843/2018, 13936/2018, 13947/2018, 14014/2018
& 14083/2018.
Jabalpur, Dated:17.07.2018.
Shri Manoj Sharma, Shri Kabir Paul, Shri Siddharth Seth and Shri
Manish Verma, Advocates for the petitioners in their respective petitions.
Shri Prashant Singh, learned Senior Advocate with Shri Anshul
Tiwari, Advocate for the respondents.
As in these batch of petitions similar reliefs are claimed, therefore for the sake of convenience, the facts of Writ Petition No.10750/2018 (Uday Raj Pandey and others Vs. Madhya Pradesh Public Service Commission and another) are taken into consideration.
At the outset, it is necessary to reproduce the relief clause as sought by the petitioners, which is as follows:
"(i) That the Hon'ble Court may direct constitution of an independent body to reassess the answers of all the questions and fresh model answer key be released;
(ii) That it may be directed that on the basis of the corrected final model answer key, the petitioners be reassessed and further considered for the next step of the examination process;
(iii) That the Hon'ble Court may pass prohibitory orders to stop release of the final result till reassessment is carried out and
(iv) Cost of the petition may also kindly be awarded."
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W.P. No.10750/2018 & connected matters The petitioners before this Court have filed the present petition on 09.05.2018 being aggrieved by the result declared by the Madhya Pradesh Public Service Commission (hereinafter referred to as "Commission") in respect of Preliminary Examination. The petitioners have stated that the answers of certain questions were wrong or there were some discrepancies compared to the key answers, therefore, this Court should direct constitution of an independent body to reassess answers and to declare the result of the petitioners.
Indubitably, the petitioners are aggrieved with the marks awarded to them saying that due to incorrect answers, they could not secure the proper marks and, therefore, in the Preliminary Examination they could not be declared successful and they are deprived to appear in the Main Examination (Written). It is worthwhile to mention here that the marks awarded to the petitioners in Preliminary Examination are not carry-forward and are not counted for the purpose of determining the merits of the candidates in further examination, but the marks awarded in Preliminary Examination are considered to ascertain their eligibility for appearing in the further steps of examination i.e. Main Examination.
It is asserted in the preliminary submissions filed in Writ Petition No.9659/2018 (Kamaldutt Sharma Vs. The State of Madhya Pradesh and another) by the respondents that the Commission by way of publishing a notice on 21.02.2018, invited objections from the candidates in reference to Clause-2 of the advertisement. Pursuant to which, some of the candidates have filed their objections whereas some chose not to file any objection, however, they are the petitioners before this Court. It is stated by the Commission that as many as 3485 candidates had submitted their reply through online objections and they were placed before the Seven Members' Expert Committee and thereafter, the Expert Committee has examined the matter thoroughly
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W.P. No.10750/2018 & connected matters and published final/amended key answers on 12.03.2018 and result was declared in respect of Preliminary Examination, 2018 on 17.04.2018.
As per the stand taken by the Commission that the experts were the Senior Subject Experts working as Professors in different Colleges and Universities and they are not the employee of Madhya Pradesh Public Service Commission and not directly related with the Commission and as such, they have independent identity.
The Commission has also stated that similar controversy has been raised in Writ Appeal No.581/2017 (Nitin Pathak Vs. State of MP and others) filed before this Court wherein law has been laid down that in exercise of power of judicial review, the Court should not refer the matter to Court appointed experts, particularly when no mala fide alleged against the experts.
The respondents have also pointed out that in the advertisement itself, there was a Clause prescribed for inviting objections and also the manner in which they had dealt with, therefore, after knowing the procedure as to in what manner, the model answers could be modified, the petitioners have no right to raise objections after participating in the examination. The respondents have also submitted that in number of cases, the Hon'ble Apex Court repeatedly laid down a law that the petitioners must have a legal right for getting the writ of mandamus but in the case at hand, in absence of any statutory provision relating to revaluation of answer-sheet as also in absence of any executive instructions having statutory force, the relief for revaluation/reexamination of their answer-sheet cannot be directed by the Court. In this respect, the respondents have relied upon the judgments reported in (2004) 6 SCC 714 parties being Pramod Kumar Shrivastava Vs. Chairman, Bihar Public Service Commission, Patna and others and (2018) 2 SCC 357 parties being
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W.P. No.10750/2018 & connected matters Ran Vijay Singh and others Vs. State of Uttar Pradesh and others. It is also stated by the Commission that all the questions so framed in the model answer key are based on the experts' opinion and the experts have considered the objections submitted by the candidates in response to their notice for submitting objections for which last date was fixed as 28.02.2018 and total 3485 objections were filed and after due considerations final answer key was published on 12.03.2018. The Commission has submitted that the experts have taken decision with the help of text books, journals and other renowned established tradition. It is also contended by the Commission that there was a Committee of Seven Senior Experts of different subjects, therefore, the proficiency of the experts and their knowledge cannot be questioned by the Court as in number of decisions, the Hon'ble Apex Court has already held that it is not the job of the Court to make a judicial review of the opinion drawn by the subject experts in a particular field in which the Court has no expertise. The Commission has apprised the Court saying that in number of identical petitions involving similar reliefs, the Court has decided the objections dismissing the same and as such, they have placed reliance on certain orders passed by the Indore Bench of this Court in Writ Petition No.12314/2018 and connected matters on 25.06.2018; order dated 03.05.2018 passed in Writ Petition No.7089/2018 and connected matters; order dated 25.06.2018 in Writ Petition No.12595/2018 and connected matters and order dated 13.07.2018 passed in Writ Petition No.12252/2018 by the Gwalior Bench of this Court.
In view of the arguments advanced by the counsel of the parties and also the material available on record, it is seen that the petitioners have mainly contended that the case decided by the Larger Bench in Nitin Pathak (supra), has observed that it would not be proper to remit the matter to Court appointed experts and, therefore, they are trying to
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W.P. No.10750/2018 & connected matters distinguish the said case with the case in hand showing that here the petitioners are not claiming that the matter be referred to the Court appointed experts but they are asking that the matter be referred to the respondents/Commission for reexamination considering the fact that the objections submitted by the petitioners have not been taken into account in its proper prospective. To bolster the aforesaid contention, the petitioners have also relied upon the judgment of the Hon'ble Apex Court rendered on 03.05.2018 in Civil Appeal Nos.4695- 4699/2018 (Richal and others Vs. Rajasthan Public Service Commission and others) wherein it has been observed by the Apex Court that if the key answers are palpably and demonstrably erroneous then those answers are required to be corrected and in that event it is obligatory for the Commission to revise entire result of all the candidates except those who have been selected. Furthermore, the petitioners have also drawn attention of this Court to an order passed in Writ Petition No.12595/2018 by Indore Bench in which, the case of Richal (supra) was taken note of and it has been observed that by way of interim order dated 16.01.2018, the Apex Court had already directed to constitute a Committee of Experts to examine the model answers and by way of final order has directed for revision of the result on the basis of the report, but this Court has found that the case of Richal (supra) has no application for the reason that in the case in hand as per Clause 5.2 of the advertisement issued by the Commission, a Committee had already been constituted for examining the model answers and objections of the petitioners have also been submitted. In the petition, the petitioners are trying to distinguish the said case on the ground that the cases in hand are not those in which the petitioners have not filed any objection but here after filing the objections those have not been considered by the experts in a proper manner and thus they have committed mistake by giving faulty
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W.P. No.10750/2018 & connected matters answers in final model answers. Therefore, in view of the objections raised by the petitioners, they are trying to convince this Court by showing that the experts have also committed error by deleting and modifying the same questions incorrectly. As such, still there is a scope for remitting the matter to the Commission for revaluation or revising their answer sheets.
Not only this, the petitioners have also tried to convince this Court by distinguishing the case of Nitin Pathak (supra) on the ground that the law laid down in the said case is not applicable in the present case because the Larger Bench has not found it proper to remit the matter back to the Court appointed experts, however, the petitioners are saying that they are not making any request to the Court to appoint an expert for revaluation of their answer sheets or for revision of model answers. Thus, they argued that the ratio laid down in the case of Nitin Pathak (supra) does not apply in the present case. As per the petitioners, all Coordinate Benches taking shelter of the case of Larger Bench, wrongly dismissed the petitions. They also pointed out that in maximum cases which have been decided by the Coordinate Benches, it is observed that in those cases, despite inviting objections, no objection had been filed but here the petitioners have shown their pleadings and documents saying that they have raised objections in response to the notice issued by the Commission.
Per contra, Shri Prashant Singh, learned Senior Counsel has contended that the case of Nitin Pathak (supra) squarely covers the issue and in view of the same, these petitions are liable to be dismissed. He further submits that all the Coordinate Benches dismissed the cases of similar nature, in which, same relief has been claimed. Further, he submits that merely because the Larger Bench has observed that it is not proper for the Court to refer the matter to the Court Appointed Expert does not mean that the law laid down by
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W.P. No.10750/2018 & connected matters the Larger Bench could be ignored. It is pointed out that the law laid down by the Larger Bench very categorically provides as under: (1) In exercise of power of Judicial Review, the Court should not refer the matter to court appointed expert as the courts have a very limited role particularly when no mala fides have been alleged against the experts constituted to finalize answer key. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts.
(2) Secondly, this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power Shri Singh further submits that as per the Larger Bench, when no mala fide have been alleged against the Experts constituted to finalize the answer key, judicial review is not permissible for reexamining the opinion of the expert body. He further submits that here in the present case, there was an expert body consisting of Seven Members, who were all experts in their fields and their opinion in view of the law laid down by the Larger Bench in the case of Nitin Pathak (supra) cannot be rescrutinized and as such, the law laid down by the Larger Bench in the case of Nitin Pathak (supra) is fully applicable and Coordinate Benches in all other cases have rightly taken note of the said law and also rightly dismissed the petitions of similar nature. He further propounded that in view of the law laid down almost in similar cases, these petitions are also liable to be dismissed. He profusely submits that merely because the distinction has been drawn by the petitioners saying that in all other cases, in response to the notice inviting objections, objections have not been filed but merely on this ground, these petitions cannot be decided adopting different yardstick because even after filing objections by the candidates those objections were considered by the Expert Committee and then they have given their own decision. Shri Singh supplied the record to the Court showing that the opinion of the expert body is not
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W.P. No.10750/2018 & connected matters baseless and without any substance but that is based upon sound principle of material available with them in respective subjects.
After meticulously perusing the record, submitted by Shri Singh, this Court observed that the experts have given their opinion on the strength of logical reasons based upon text book, journals and other established traditional norms.
That apart, Shri Singh submits that there are umpteen cases of Hon'ble Apex Court, in which, it is held that once it is in the knowledge of the candidates/petitioners that as to in what manner answers are to be corrected and when a question will be treated to be wrong, so also taking part in the examination, they cannot raise any objection later on merely because they declared unsuccessful in that test.
As per the respondents, the principle of 'estoppel' would operate in the present case. He relies upon a judgment of the Apex Court reported in (2017) 4 SCC 357 parties being Ashok Kumar and another Vs. State of Bihar and others, wherein in paragraph 12, it has been observed as under:-
"Para 12- The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate."
Emphasis has been made by Shri Singh on the point that in absence of any specific provision for revaluation/reassessment, no direction can be issued by the Court. In support thereof, he placed reliance on a decision of Supreme Court reported in (2004) 6 SCC 714 parties being - Pramod Kumar Shrivastava Vs. Chairman, Bihar Public Service Commission, Patna and others. It is pointed out that it is a decision of Constitutional Bench comprising Three- Judges which very clearly laid down that "in the absence of any
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W.P. No.10750/2018 & connected matters provision for revaluation of answer book in the relevant rules no candidate in an examination had got any right whatsoever to claim or ask for revaluation of his marks". Further it is observed that in absence of a specific provision conferring a right upon an examinee to have his answer book revaluated, no such direction can be issued by this Court if the Commission has no provision entitling a candidate for the same. He submits that in case of Richal (supra) this case has not been considered and the decision in the case of Richal is of two Judges whereas the case of Pramod Kumar Shrivastava (supra) is of Constitutional Bench, therefore, it will prevail over the ratio laid down by Hon'ble the Apex Court in the case of Richal (supra).
Reliance is also placed by Shri Singh on a case i.e. Civil Appeal No.5838/2018 (U.P. P.S.C. and another v. Rahul Singh and another), wherein the Hon'ble Apex Court in paragraph 16 has been pleased to observe as under:-
"Para 16- In the present case we find that all the 3 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."
Shri Siddharth Seth, Advocate appearing in some of the petitions has reiterated the contentions as raised by Shri Manoj Sharma, counsel for the petitioners in some other petitions and added further that in case of Richal (supra), the Supreme Court has observed that when the mistake is demonstrably erroneous then the matter can be referred for reassessment and he has drawn attention of this Court to the question Nos.66, 81, 45, 99, 62, 55, 18, 7, 38 and 86 of Set 'D' saying that these are demonstrably erroneous and experts have committed mistake while deleting or modifying the answers. Shri Manoj Sharma has already pointed out that some of the questions of Set 'A' wrongly
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W.P. No.10750/2018 & connected matters deleted or modified and has also supplied the material saying that in view of the observation made by the Apex Court in the case of Richal (supra), this is a fit case, where the matter can be referred to the expert body of the Commission for revision of answer books.
Scrupulously, I have examined the rival material supplied by either parties and compared the stand of the petitioners and also the opinion of the expert body. On that fulcrum, I am of the opinion that there might be some discrepancies in taking examination which may affect the result of few candidates, however, it would not be appropriate for the Court to discard the opinion of the expert body and refer the matter again to the Commission for reassessment or revaluation of answer books. As already set-forth that in case of Ran Vijay Singh (supra), the Hon'ble Apex Court in paragraphs 30, 31 and 32 very specifically laid down the scope of interference:
"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
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W.P. No.10750/2018 & connected matters 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 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."
Likewise, in case reported in (2010) 6 SCC 759 parties being Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another in paragraph 20 the Supreme Court has observed as under:
"Para 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 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."
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W.P. No.10750/2018 & connected matters Looking to the observations made by Hon'ble Apex Court in paragraph 31 of the case of Ran Vijay Singh (supra), I do not find that in the present case any interference is permissible when only petty mistakes can be observed as highlighted by the petitioners. It is however, worth-mentioning that Shri Kabir Paul, Advocate has also relied upon the judgment of Ran Vijay Singh (supra) highlighting some observations made by the Supreme Court saying that if candidates are able to demonstrate that the key answer is incorrect then a prompt decision has to be taken to exclude suspect question and no marks be assigned to it. He has also argued that even though there is no provision for revaluation of answer script, but looking to the luminous illegality in key answer, the Court can interfere. However, the over all observations made by Hon'ble Apex Court in the case of Ran Vijay (supra) especially in paragraphs 30, 31 and 32, the arguments advanced by Shri Kabir Paul, Advocate though seems to be attractive at the first blush, but the Court cannot go by the same overlooking the over all observations made in the matter of examination and scope of interference thereof.
Shri Siddharth Seth, counsel for the petitioners has also tried to convince this Court that even in absence of specific allegation of mala fide however looking to the over all circumstances and the factum that the Commission being a State Authority if acting in such a manner causing damage to the candidates, inference of malice or mala fide can be drawn. He also relied upon a decision in case of Punjab State Electricity Board Vs. Zora Singh passed in Appeal (Civil) 4910- 4981/2005, but in the present case, said case is not applicable for the reason that here in this case there is no allegation made by the petitioners against the respondents that they are acting with an oblique and indirect object. On the contrary, it can be seen that conducting an exam is a long process involving endeavours of the Authority to get it
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W.P. No.10750/2018 & connected matters done in a peaceful manner; minor and small irregularity so committed cannot be made the basis to constitute the mala fide nor can it be described as a malice on the part of the State Authority.
Thus, in view of the above enunciation of law laid down by Hon'ble the Apex Court, consistently in the matters of examination, so also the law laid down by the Larger Bench in the case of Nitin Pathak (supra) relied upon by other Coordinate Benches in the similar issue dismissing the petitions, I am of the considered opinion that no different opinion can be drawn overstepping the jurisdiction to upset the opinion of the Hon'ble Apex Court so also the Larger Bench.
Accordingly, petitions are dismissed.
(Sanjay Dwivedi) Judge Devashish / ac/-
Digitally signed by DEVASHISH MISHRA Date: 2018.07.21 03:26:13 -07'00'