Himachal Pradesh High Court
Ajay Kumar vs Himachal Pradesh Public Service on 24 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 24th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No.7290 of 2021
Between:-
1. AJAY KUMAR, S/O SH. PIAR CHAND,
R/O VILLAGE BARI KHASS, P.O.
KAMLEHAR, TEHSIL PALAMPUR,
DISTRICT KANGRA, HP-176061.
2. ANMOL JARYAL, D/O OM PRAKASH JARYAL,
VILLAGE MANDRODI, P.O. WANGAL, TEHSIL
SALOONI, DUGHAR (39), WANGAL,
CHAMBA, HP-176308.
3. AMAN SHARMA, S/O SH. JEET RAM SHARMA,
R/O VILLAGE PAPLAH, P.O. SALAHON,
TEHSIL GHUMARWIN, DISTRICT BILASPUR,
H.P.
4. RAJAT CHAUHAN, S/O SH. BABU LAL CHAUHAN,
R/O KANIKA NEGI NIWAS, BELOW BSNL COLONY,
SECTOR 6, NEW SHIMLA-171009.
5. VINEET KUMAR, S/O LATE SH. RAMESH KUMAR,
R/O VPO DINGER-KINNER, TEHSIL PACHHAD,
DISTRICT SIRMAUR, HP-173001.
6. AKSHAT SHARMA, S/O SH. SUBHASH CHAND
SHARMA, R/O HOUSE NO-316/12, MOHALLA
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CHIRANWALI, KATCHA TANK, TEHSIL
NAHAN, NAHAN (T), SIRMAUR, HP-173001.
.
7. RAHUL THAKUR, S/O SH. OM PRAKASH THAKUR,
R/O VILLAGE PALHOON, PO JALPEHAR, TEHSIL
JOGINDER NAGAR, DISTRICT MANDI, HP-175015.
8. SHIVAM BHARDWAJ, S/O SH. SURYA KANT
BHARDWAJ, R/O BANSAL BHAWAN, NEAR
RAJDOOT HOTEL, OLD BUS STAND, SHIMLA-171003.
9. DEVINDER SINGH, S/O DIWAN SINGH, R/O
VILLAGE SHAMKOR, P.O. JAGHORI, TEHSIL
RAMPUR, DISTRICT SHIMLA, H.P.-172101.
......PETITIONERS.
(BY SH.ABHIMANYU RATHOR AND
MS. POONAM GEHLOT, ADVOCATES)
AND
1. HIMACHAL PRADESH PUBLIC SERVICE
COMMISSION, THROUGH ITS CHAIRMAN,
NIGAM VIHAR, SHIMLA-2, H.P.
2. SECRETARY, HIMACHAL PRADESH
PUBLIC SERVICE COMMISSION, NIGAM
VIHAR, SHIMLA-2, H.P.
......RESPONDENTS.
(BY SH. VIKRANT THAKUR, ADVOCATE)
This petition coming on for admission before notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
ORDER
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Notice. Mr. Vikrant Thakur, Advocate, appears and waives service of notice on behalf of the respondents.
.
2. The instant petition has been filed for grant of the following substantive reliefs:-
"i) Issue a writ of certiorari to quash and set-aside the impugned merit list dated 01-11-2021 (Annexure P-9) and the Final Answer Key (Annexure P-8) thereof;
ii) Issue a writ of certiorari to quash and set-aside r Rule 7(C) of the Himachal Pradesh Public Service Commission (Procedure & Transaction of Business and Procedure for the conduct of Screening Tests/Examinations & Personality Tests Etc.) Rules, 2021 thereof;
iii) Issue directions to respondent to revise the Preliminary Examination merit list dated 01-11-2021 (Annexure P-9) on the basis of opinion of multi-membered expert committee in a time bound manner, and/or in the alternative allow petitioners to participate in the Mains Examination scheduled 15th December, 2021;
iv) Issue directions to respondents to take appropriate action against the examination setters for misfeasance and negligence in the performance of their duty forthwith;
v) Issue appropriate directions to summon entire record of the case along with deliberations by ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 4 examination setters along with their source for founding the final answers key and the .
preliminary merit list thereafter, from respondents for examination of Hon'ble Court to pass necessary order on merits."
3. The respondent-Commission issued Advertisement No.11/5-2021 for recruitment to the H.P. Administrative Services Combined Competitive Examination-2020. The petitioners being fully eligible applied for the same and appeared in the preliminary examination held on 26.09.2021. The provisional answer key was displayed on 27.09.2021. The petitioners filed representation on 08.11.2021. The respondents released the final answer key. However, the grievance of the petitioners is that the answers to questions No. 4 and 31 of Test Booklet Series B of General Studies are still incorrect, hence, this petition.
4. When the case came up before this Court on 23.11.2021, Shri Vikrant Thakur, learned counsel for the respondents, on instructions, stated that the issue in question has already been considered and decided by this Bench vide its judgment dated 12.11.2021 in CWP No. 6960 of 2021 titled ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 5 Vivek Sharma versus Himachal Pradesh Public Service Commission and another and, therefore, the present petition .
be dismissed. In addition to that, he categorically stated that upon the objections received from the petitioners and other candidates, the same were referred to a panel of Expert (s) and it is only thereafter that the final result has been declared.
5. However, learned counsel for the petitioners disputed this statement and stated that his clients have definite knowledge that the answer papers were not sent to a Panel Expert, rather the same were sent to the Paper Setter i.e. the same examiner. This statement led the Court to pass the following order on 23.11.2021:-
"Learned counsel for the petitioner states that his client has definite knowledge that the answer papers were not sent to Panel Expert, rather the same was sent back to the paper setter i.e. the same examiner. Let petitioner swear an affidavit by stating clearly the source of his belief and knowledge.
List on 24.11.2021."::: Downloaded on - 31/01/2022 23:19:38 :::CIS 6
6. When the matter was taken up today, the learned counsel for the petitioners stated that his clients are not so .
willing to put their careers at stake by filing necessary affidavits in terms of the order dated 23.11.2021(supra).
7. However, the learned counsel for the petitioners would still maintain that the petitioners probably need not file the affidavits in view of the provisions contained in the Himachal Pradesh Public Service Commission (Procedure & Transaction of Business and Procedure for the conduct of Screening Tests/Examinations and Personality Tests Etc.) Rules, 2021, which clearly provide for the objections being got verified from the Subject Expert/Paper Setter and strong reliance in respect of this submission is placed on the provisions contained in Rule 7 (B)(b)(ii) which read as under:-
"(ii) In the case of Preliminary Examination (objective type) the candidate will have to encircle / blacken the option he / she thinks is right/correct on the OMR answer sheet out of four (a, b, c, d) answer options with blue / black ball pen. The answer key(s) of the Preliminary Examination (objective type) shall be uploaded on the website of the Commission immediately after the conduct of the preliminary examination for inviting objections from the appeared ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 7 candidates for which 07 (seven) days time (day of publishing the key plus seven days upto 05.00 P.M. of .
the prescribed last date of receipt of objections) shall be given (in the case of preliminary examination for recruitment to the post(s) of Civil Judge only 03 (three) days time (day of publishing the key plus three days upto 05.00 P.M. of the prescribed last date of receipt of objections) shall be given to the appeared candidates for inviting objections in the answer keys)). The received objection(s), if any, will be got verified from the concerned Subject Expert / Paper Setter. Based on the opinion/decision of the concerned Subject Expert/Paper Setter to the objection(s) raised by the candidates the revised answer key shall be prepared & finalized. After finalization of answer key, the OMR answer sheets of the candidates who appeared in the Preliminary Examination shall be scanned twice in the OMR Scanner(s) and evaluated by using the final answer key to prepare a category-wise zone of consideration in the prescribed ratio in proportion to the number of post(s) advertised, by the concerned Secrecy Cell on the basis of performance of the candidates in the said Preliminary Examination. In respect of scrapped question(s) no credit to appeared candidates shall be given. The final answer key alongwith score of the appeared candidates in the preliminary examination shall be uploaded on the website of the Commission immediately after the declaration of the result of said Preliminary Examination.
::: Downloaded on - 31/01/2022 23:19:38 :::CIS 8No objection(s)/representation(s) shall be entertained against the final answer key.
.
Note: There will be negative marking for incorrect answers as per detail given below:
(a) There are four alternatives for the answers to every question. For each question for which a wrong answer has been given by the candidate, one fourth of the marks assigned to that question will be deducted as penalty.
(b) If a candidate gives more than one answer, it will be treated as a wrong answer even if one of the given answers happen to be correct and there will be same penalty as above for that question.
(c) If a question is left blank i.e. no answer is given by the candidate, there will be no penalty for that question.
(d) Where there will be two correct answers instead of one correct answer out of four options of a question, all those candidates who will click/encode any one of these two correct answers will be awarded marks allotted to that question."
8. It needs to be noticed from the aforesaid provisions that the Subject Expert/Paper Setter is separated by the device of 'hyphen'. It is, therefore, in this context that literal meaning of hyphen acquires importance.
9. As per the Merriam Webster dictionary, 'hyphen' is used not only to combine/compound the two words but also to define words.
::: Downloaded on - 31/01/2022 23:19:38 :::CIS 910. In the instant case, the petitioners tried to read the words concerned Subject-Expert and Paper Setter as .
compound words. The respondents obviously read those two words as distinct one as one of the valid use of hyphen was also to divide the words. If the hyphen is to be construed in between the two words, the concerned Subject Expert/Paper Setter, then it would only mean the concerned Subject Expert.
This will lead to an absurd result. So, hyphen in the present context has to be construed disjunctively so as to give a divisive mean as two separate words making separate categories of a person to whom the objection as received may be sent for verification.
11. We really fail to understand how the petitioners would infer that the concerned Subject Expert and the Paper Setter are one and the same person, more particularly, when it has specifically come in the statement of the learned counsel for the respondents that the objections were referred to the Subject Expert and not the Paper Setter.
12. As observed above, the issue in question is squarely covered by the judgment rendered by this Bench in ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 10 Vivek Sharma's case (supra) wherein it was observed as under:-
.
"4. What would be the scope of judicial review in the given facts and circumstances of the case has recently been considered by this Bench in CWP No. 4999 of 2021, titled Upanshu Sharma vs. State of Himachal Pradesh and another and connected matter, wherein it was observed as under:-
"12. The powers of this Court to have opinion different to that of the experts, in the matter of r evaluation of answers in competitive examination, is well defined. In this context, reference can be made to the judgment passed by the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and another vs. Paritosh Bhupeshkumar Sheth and others (1984) 4 SCC 27, wherein it has held as under:
"29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 11 approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the .
system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case."
13. In Himachal Pradesh Public Service Commission vs. Mukesh Thakur and another (2010) 6 SCC 759, the Hon'ble Supreme Court has held as under:
"20. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent No.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."::: Downloaded on - 31/01/2022 23:19:38 :::CIS 12
14. In Central Board of Secondary Education through Secretary, All India Pre-Medical/Pre-
.
Dental Entrance Examination and others vs. Khushboo Shrivastava and others (2014) 14 SCC 523, the Hon'ble Supreme Court while noticing the judgment in Maharashtra State Board of Secondary and Higher Secondary Education case (supra) has held as under:
"11. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have r substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters......."
15. A Division Bench of this Court in Rustam Garg and others vs. Himachal Pradesh Public Service Commission, ILR 2016 Vol. (2), 591, while dealing with an identical proposition has held as under:
"17. In view of the aforesaid exposition of law, we have no doubt in our mind that even when the revised key answers are impugned with respect to questions relating to the subject of law, it is not permissible for this Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates. It is not for the Court to take upon itself the task of the statutory authorities and substitute its own opinion for that of the experts."::: Downloaded on - 31/01/2022 23:19:38 :::CIS 13
5. The similar reiteration of law can be found in another decision of the learned Division Bench of this .
Court, authored by one of us (Justice Tarlok Singh Chauhan) in Bhupinder Singh vs. State of Himachal Pradesh and another 2021 (1) Him. L.R. (DB) 6 and in CWP No. 5524 of 2021 titled Smt. Mamta Thakur vs. State of H.P. and Others, decided on 27.09.2021.
6. We may, at this stage, refer to a fairly recent judgment rendered by three Judges of the Hon'ble Supreme Court in Vikesh Kumar Gupta and another vs. State of Rajasthan and others (2021) 2 SCC 309 wherein the Hon'ble Supreme Court held that though re-
evaluation can be directed, if rules permit, however, deprecated the practice of re-evaluation and scrutiny of the questions by the Courts which lack expertise and it was further held that it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. Courts have to show deference and consideration to the recommendations of the Expert Committee, who have expertise to evaluate and make recommendations. It shall be apposite to refer to the relevant observations as contained in paragraphs 13 to 17 which read as under:-
"13. The point that arises for the consideration of this Court is whether the revised Select List dated 21.05.2019 ought to have been prepared on the basis of the 2nd Answer Key. The Appellants ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 14 contend that the Wait List also should be prepared on the basis of the 3rd Answer Key and .
not on the basis of the 2nd Answer Key. The 2nd Answer Key was released by the RPSC on the basis of the recommendations made by the Expert Committee constituted pursuant to the directions issued by the High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis of the 2nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed the RPSC to prepare revised Select List and apply it only to the Appellants before it.
14. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 15 itself, particularly when the Commission has assessed the inter se merit of the candidates .
(Himachal Pradesh Public Service Commission v.
Mukesh Thakur (2010) 6 SCC 759. Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations (See- Basavaiah v. H.L. Ramesh (2010) 8 SCC 372.
15.Examining the scope of judicial review with regards to re-evaluation of answer sheets, this Court in Ran Vijay Singh v. State of U.P. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows: (Ran Vijay Singh case9, SCC pp. 369-70, paras 31-32) "31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re- evaluation of an answer sheet. If an error is committed by the examination authority, the 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 ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 16 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 ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 17 does not work to anybody's advantage and such a state of uncertainty results in .
confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
16. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019. Reliance was placed by the Appellants on Richal v. Rajasthan Public Service Commission (2018) 8 SCC 81. In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case.
17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 18 basis and their claims for regularization. The other consequence resulting from delayed .
appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel."
7. Keeping in view the aforesaid exposition of law, the reliefs, as claimed by the petitioner cannot be granted, more particularly, when objections of the petitioner have already been considered by a panel of Experts. The petitioner has not been able to show any provision governing the process of selection from which he may derive the reliefs as claimed. The reliefs as claimed in this petition are not permissible and cannot be granted to the petitioner.
8. However, before parting, in order to be fair to the petitioner, strong reliance is placed by the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in Uttar Pradesh Public Service Commission, through its Chairman and Another vs. Rahul Singh and Another (2018) 7 SCC 254. However, even this judgment does not in any way advance the case of the petitioner as it is a reiteration of the principles, as noticed above. Rather, the Hon'ble Supreme Court has gone a step ahead by concluding that the onus is on the candidate to not only demonstrate that key answer is incorrect, but there is a glaring mistake and no inferential process or reasoning is required to show that key answer is wrong. It has further been held that the constitutional Courts must ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 19 exercise great restraint in such matters and should be reluctant to entertain a plea challenging the .
correctness of the key answers. It shall be apt to reproduce the relevant observations as contained in paras-12 to 15 of the judgment, which read as under:-
"12. The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The r Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. In Kanpur University case (supra), the Court recommended a system of:
(1) moderation;
(2) avoiding ambiguity in the questions; (3) prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions.
13. As far as the present case is concerned even before publishing the first list of key answers the Commission had got the key answers moderated by two expert committees.
Thereafter, objections were invited and a 26 member committee was constituted to verify the objections and after this exercise the Committee recommended that 5 questions be deleted and ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 20 in 2 questions, key answers be changed. It can be presumed that these committees consisted .
of experts in various subjects for which the examinees were tested. Judges cannot take on the role of experts in academic matters. Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct.
14. In the present case we find that all the three questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.
15. In view of the above discussion we are clearly of the view that the High Court over stepped its jurisdiction by giving the directions which amounted to setting aside the decision of experts in the field. As far as the objection of the appellant - Rahul Singh is concerned, after going ::: Downloaded on - 31/01/2022 23:19:38 :::CIS 21 through the question on which he raised an objection, we ourselves are of the prima facie .
view that the answer given by the Commission is correct."
13. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan)
r Judge
(Satyen Vaidya)
Judge
24th November, 2021.
(krt)
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