Patna High Court - Orders
Diwakar Paswan & Ors vs The State Of Bihar & Ors on 25 April, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13083 of 2012
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1. Diwakar Paswan, S/O Sri Rajeshwar Paswan Resident Of Village-
Athagama, P.S- Kharik, District- Bhagalpur.
2. Md. Nafisur Rahman, S/O Md. Hifzur Rahman, Resident Of Village-
Siswan Via Adapur, P.O- Siswan, P.S- Darpa, District- East Champaran.
3. Sanjay Kumar, S/O Sri Indrasan Prasad Dayalu, Resident Of Village-
Basudeopur, P.S- Laukaha, District- Madhubani.
4. Rupesh Kumar Thakur, S/O Sri Shankar Kumar Thakur, Resident Of
Village- Kadrachak, P.S- Shambhuganj, District- Banka
5. Raj Kumar, S/O Sri Rupan Saw, Resident Of Village- Gopalpur, P.S-
Naubatpur, District- Patna.
6. Jay Narayan Yadav, S/O Sri Dasrath Prasad Yadav, Resident Of Village-
Budhma, P.S- Madhepura, District- Madhepura.
7. Mukesh Kumar, S/O Sri Raj Kishore Rai, Resident Of Village-
Gangapur, P.S- Pusa Road, District- Samastipur.
8. Krishna Kumar, S/O Sri Puhup Lal Yadav, Resident Of Village- Aourahi,
P.S- Simraha,District- Arariah.
9. Ranjeet Kumar, S/O Sri Ramadhar Roy, Resident Of Vilage- Harpur,
P.S- Barauni, District- Begusarai.
10. Jayadeo Mandal, S/O Sri Sashi Kant Mandal, Resident Of Village-
Lagma, P.S- Kahalgaoun, District- Bhagalpur.
11. Mukesh Kumar, S/O Sri Brahamdeo Mandal, Resident Of Village-
Bhramarpur Tola (Itarahi), P.S- Alamgar, District- Madhepura.
12. Lalan Kumar, S/O Sri Sitaram Bhagat, Resident Of Village- Chikini,
P.S- Saurbazar, District- Saharsa.
13. Meena Kumari D/O Sri Radheyshyam Bhagat, Resident Of Village-
Chikini, P.S- Saurbazar, District- Saharsa.
14. Mithelesh Kumar, S/O Sri Parmeshwari Sah, Resident of Village-
Nauranga, P.S- Choutham, District- Khagaria.
15. Chandran Kumar, S/O Sri Naresh Kumar Thakur, Resident Of Village-
Chakrami, P.S- Bihpur, District- Bhagalpur.
16. Rakesh Ranjan, S/O Sri Shashi Bhushan Khadgara, Resident Of
Village- Baunshi, P.S- Baunshi, District- Banka.
17. Sumit Kumar Poddar, S/O Sri Ramesh Chandra Poddar, Resident Of
Village- Chandpur, P.O- Chandpur, P.S- Falka, District- Katihar.
.... .... Petitioner/s
Versus
1. The State Of Bihar through its Chief Secretary, Patna. t
2. The Bihar School Examination Board, Patna.
3. The Chairman, Bihar School Examination Board, Patna.
4. The Secretary, Bihar School Examination Board, Patna.
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.16997 of 2012
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1. Santosh Kumar Mishra, S/O Shri Yashoda Mishra, Resident Of Village-
Nisurpur, P.O- Jamuara, Via- Tekari, P.S- Konch, Distt- Gaya.
Patna High Court CWJC No.13083 of 2012 (14)
2
2. Chandra Bhushan Kumar, S/O Shri Bachchoo Pandey, Resident Of
Village- Khanwan, P.O- Khanwan, P.S- Narahat, Distt- Nawada.
3. Shishir Kumar Mishra, S/O Shri Yashoda Nand Mishra, Resident Of
Village- Nisurpur, P.O- Jamuara, Via- Tekari, P.S- Konch, Distt- Gaya.
4. Kumari Anshika Sinha, D/O Shri Muneshwar Prasad Sinha, Resident Of
Village & P.O- Simuara, P.S- Tekari, Distt- Gaya.
5. Vinta Kumari, D/O Shri Awadh Singh, Resident Of Village & P.O-
Khizersarai, P.S- Khizersarai, District- Gaya.
.... .... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary, Human Resources and
Development Department, Bihar, Patna.
2. The Principal Secretary, Human Resources and Development
Department, Bihar, Patna.
3. Bihar School Examination Board through Chairman, Bihar School
Examination Board, Budha Marg, Patna.
4. The Chairman, Bihar School Examination Board, Budha Marg, Patna.
5. The Secretary, Bihar School Examination Board, Budha Marg, Patna.
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.16129 of 2012
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1. Ritesh Kumar, S/O Sri Suresh Prasad Gupta, Resident Of Village :
Damodarpur, P.O. : Damodarpur, P.S. : Kanti, Via - Patahi , District -
Muzaffarpur
2. Sanjay Kumar Singh, S/O Sri Ravindra Prasad Singh, Resident Of
Village : Balthi Maheshpur, P.O. + P.S. : Balthi Maheshpur, District :
Katihar
3. Babloo Kumar, S/O Sri Bino Prasad Yadav, Resident Of Village : Bari
Ballia, P.S. : Bari Ballia, District : Begusarai
4. Niranjan Kumar Jha, S/O Sri Bedanand Jha, Resident Of Village :
Aradaha, P.S. : Pratapganj, District : Supaul
5. Shailendra Kumar Jha, S/O Sri Bedanand Jha, Resident Of Village :
Aradaha, P.S. : Pratapganj, District : Supaul
6. Jay Prakash Sharma, S/O Sri Jagdish Sharma, Resident Of Village :
Maujutola, P.S Bhawanipur (Bihpur), District : Bhagalpur
7. Manoj Kumar, S/O Sri Suresh Prasad Sharma, Resident Of Village :
Maujutola, P.S. Bhawanipur (Bihpur), District : Bhagalpur
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Bihar School Examination Board, Patna
3. The Chairman, Bihar School Examination Board, Patna
4. The Secretary, Bihar School Examination Board, Patna
.... .... Respondent/s
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with
Patna High Court CWJC No.13083 of 2012 (14)
3
Civil Writ Jurisdiction Case No.15071 of 2012
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1. Om Prakash, Son Of Sri Ram Sagar Singh, Resident Of Village Najirpur,
Police Station Ujjiarpur, P.O. Chand Chaura, District Samastipur
2. Rafat Zahan, Daughter Of Anwarul Haque, Resident Of Mohalla
Dharampur, Ward No. 1, P.S. Town, District Samastipur
3. Kumari Meera Manjusa, Daughter Of Late Ram Chandra Singh, Resident
Of Village Mersand, Bahadurpur, P.S. Pusa, District Samastipur
.... .... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary, Human Resources
Development Department, Government Of Bihar, Patna
2. The Director, Primary Education, Human Resources Development
Department, Government Of Bihar, Patna
3. Bihar School Examination Board through its Chairman
4. The Secretary, Bihar School Examination Board, Patna
5. The Controller Of Examination, Bihar School Examination Board, Patna
.... .... Respondent/s
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Appearance :
(In CWJC No.13083 of 2012)
For the Petitioner/s : Mr. Subodh Kumar Jha,
Mr. Pranav Kumar Jha,
Mr. Roshan Kumar Mishra, Advocates.
For BSEB : Mr. Satyabir Bharti, Advocate.
For the State : Mr. Piyush Lal,
(In CWJC No.16997 of 2012)
For the Petitioner/s : Mr. Shekhar Singh,
Mr. Shree Nivas Madhuvan, Advocates.
For the Respondent/s : Mr. Girish Kumar, Advocate.
For the State : Mr. Ved Prakash Srivastava, AC to SC 27.
(In CWJC No.16129 of 2012)
For the Petitioner/s : Mr. Subodh Kumar Jha,
Mr. Pranav Kumar Jha,
Mr. Roshan Kumar Mishra, Advocates.
For the BSEB : Mr. Girja Shankar Prasad, Advocate.
For the State : Mr. Navjot Yeshu, AC to GP 3.
(In CWJC No.15071 of 2012)
For the Petitioner/s : Mr. Rabindra Kumar Priyadarshi, Advocate.
For the State : Mr. Mohan Kumar Singh, AC to SC5.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV ORDER
14 25-04-2014Heard learned counsel for the petitioners and learned counsel for the State as well as Bihar School Examination Patna High Court CWJC No.13083 of 2012 (14) 4 Board.
2. In all the cases identical issues have been raised, they have been heard together and are being disposed of by the common order.
3. For brevity, the fact of C.W.J.C. No.13083 of 2012 is being taken into consideration for deciding the issue involved in the present case.
4. The common prayer has been made to re-evaluate the answer sheets/ OMR sheets of the petitioners in terms of subject taken by the petitioners i.e. first selected paper and second selected paper for appearing in the Secondary/Higher Secondary Teachers Eligibility Test, 2011 (hereinafter referred to as „the Eligibility Test, 2011) as according to the marks allotted to the subject in the aforesaid Eligibility Test, 2011 are as follows:
1 to 50 allotted to Teaching Art and Reasoning (common), 51 to 100 allotted to first selected paper and 101 to 150 allotted to second selected paper. Although the respondent Bihar School Examination Board evaluated the answer sheets/ OMR sheets according to subject mentioned in the answer sheets/OMR sheets as there is no mentioning of sequence of papers in the answer sheets/OMR sheets or even Patna High Court CWJC No.13083 of 2012 (14) 5 in the advertisement which was completely mistaken system of evaluation and further for a direction upon the respondents to change evaluation system by giving sequence of paper for proper evaluation and get answer sheets/OMR sheets re-
evaluated in terms of preference taken by the petitioners for declaring the name of the petitioners in the list of successful candidates in the said examination.
5. Basically the question that has been raised by the petitioners that advertisement, Information Bulletin, Question Booklet and OMR sheet were/are not clear to understand in what manner the candidate would opt the subject and to solve the question paper and so much so number system which were/are mentioned in Question Booklet in each segment of subject is so confusing and created mess, was very difficult to understand into what manner and under what system the candidate has to give the answer. In substance the questions have wrongly been arranged not compatible to the advertisement issued for Eligibility Test, 2011 so much so OMR sheet have not been evaluated in terms of subject opted by petitioners.
Patna High Court CWJC No.13083 of 2012 (14)6
6. The Bihar School Examination Board issued an Advertisement No. 19 of 2012 for holding the Eligibility Test, 2011 for appointment of teachers in different High Schools and Middle Schools in the State of Bihar which is known as Eligibility Test, 2011. All the petitioners applied against the said advertisement, admit cards were issued and accordingly all the petitioners have appeared.
7. After publication of result, the petitioners were shocked as they were not in the list of successful candidates, filed an application/representation before the respondent Board to re- evaluate their answer sheets/OMR sheets in terms of subject selected by them in preference. Petitioners filed representation, later on they could know, Board did not evaluate the answer sheets/OMR sheets in terms of chronological preference of subject mentioned in their respective application form. Petitioners in order to satisfy the evaluation in the proper manner filed an application under the Right to Information Act to supply their answer sheets/OMR sheets to verify marks obtained by them in proportionate to their respective performance in test.
8. The petitioners in order to crystallize their contention has submitted by way of instance as taking case of petitioner Patna High Court CWJC No.13083 of 2012 (14) 7 no.1 who having B.A. Hon‟s in Political Science in which History is subsidiary paper filled up the form, opted Political Science as first selected paper and further opted History as second paper. But his answer sheet/OMR sheet was not evaluated according to the subjects opted by the petitioner in preferential manner rather the evaluation was made according to the subject mentioned in the answer sheet/OMR sheet. As per answer sheet/OMR sheet in the column Social Science, History is mentioned on the top and thereafter Geography, Economics and Political Science. The second opted subject of the petitioner History was evaluated as first selected paper and Political Science was evaluated as second selected paper in place of first selected paper.
9. In similar way petitioner no.2 being Science graduate having Hon‟s in Biology filled up the form in the said examination opted Biology as first selected paper and further opted Chemistry as second selected paper but answer sheet/OMR sheet was not evaluated according to the subjects opted by the petitioner. But the answer sheet/OMR sheet was evaluated according to the subject mentioned in the OMR sheet. According to the answer sheet/OMR sheet in the column Mathematics and Science, Mathematics is mentioned Patna High Court CWJC No.13083 of 2012 (14) 8 in the top and thereafter Physics, Chemistry and Biology and second opted subject of the petitioner was Chemistry but the answer sheet was evaluated treating the Chemistry as first selected subject and Biology was evaluated as second selected paper which is really a wrong process was adopted for evaluating the answer book of the petitioner.
10. Similarly petitioner no.3 was graduate in Science with Biology as Hon‟s paper filled up the form in the said examination and opted Biology as first selected paper and further opted Chemistry as second selected paper. But answer sheet/OMR sheet was not evaluated according to the chronology opted by the petitioner as Chemistry being a second opted subject was evaluated treating it as first paper. Similarly Biology was opted as first paper but was evaluated as second paper. In nutshell his case is that the Board has wrongly arranged the answer sheet and not in the manner what the petitioner has opted the subject.
11. As per the claim of the petitioners the answer sheets/OMR sheets vis-à-vis the question papers ought to have been arranged in such a manner that prudent person can understand the manner they have to give the answer to the question, and evaluation of the answer sheets ought to have Patna High Court CWJC No.13083 of 2012 (14) 9 been done in the manner they have chosen as a first subject and second subject but in contra the first subject opted by the petitioners has been evaluated as second subject and correspondingly the second subject opted by the petitioners has been evaluated as first subject and that is the reason the petitioners could not get the proper marks and they were not declared as selected candidates.
12. It has been submitted that the advertisement was completely vague and clumsy difficult to understand the same in what manner the subject was to be opted and at the same time the questions of general science has been arranged from 1 to 50 and thereafter each subject like History, Geography, Political Science and Economics have been arranged in between question nos. 51 to 100 but at the same time question no.51 to 100 has been carried another serial number as 101 to 150 by applying hyphen as like 51/101 and onward and in this manner every subject has been arranged carrying the same question number (51/100, 52/201 ...100/150) created a sheer confusion while giving answer and there was every likelihood that the candidate would commit mistake while giving answer in the multiple choice answer in computerized answer sheet and further submitted question papers Patna High Court CWJC No.13083 of 2012 (14) 10 corresponding OMR sheet was labyrinth alley.
13. The counsel for the petitioner has pointed out that in the advertisement nothing has been mentioned that a candidate will have to take as one of the compulsorily subjects either History or Geography but has only mentioned that any two subjects have to be taken. The OMR Sheets or question book let Annexure-B where the details has been given also does not disclose to elect one of the compulsory subjects would be either History or Geography. He has drawn attention to question book let (Annexure-B) section II of the guidelines provided the manner questions have to solve. It has been provided out of four subjects two subjects would have to be selected as per option in the form. There is no instruction to opt compulsorily either the History or in Geography as one subject. Sub-clause-(4) of Clause 11 Information Bulletin (Annexure-A) does not disclose that either the History or Geography to be opted compulsorily as one of subject. Clause 11(4) mandates, the candidate intending to appear in the test must have done graduation any of four subjects but one of the subject must either be History or Geography (either in pass course or Honours). When the matter was taken up by this Court on 8th August, 2012 and the Court has asked the Patna High Court CWJC No.13083 of 2012 (14) 11 Board to file counter affidavit whereupon Bihar School Examination Board issued essential notice (Annexure-F) in the shape of clarification wherein sub clause-(ii) it has been mentioned that the person was required to opt essentially any of the two compulsory subjects i.e. History or Geography.
14. The petitioners in support of their contention has relied on the judgment in the case of Madan Mohan Roy Vs. the State of Bihar & others, reported in 2013(4) PLJR 398 (paragraph 12) and State of Orissa and others Vs. Prajnaparamita Samanta and others, reported in (1996)7 SCC 106.
15. The counsel for the Board has pointed out the note-1 of Clause 11 of Information Bulletin (Annexure-A) and clause 11(Ka) (4) have to be read together in harmony and in totality, gives one and only inference that the person, who is B.A. will have to opt compulsorily any one subject from any of the of the subjects i.e.History or Geography. He has further submitted that the petitioner has not taken this plea before any forum, for the first time, this plea has been raised so much so there is no foundational fact in the pleading rather as a matter of fact those, who have opted for social science, have opted either History or Geography. As a matter of fact if the Patna High Court CWJC No.13083 of 2012 (14) 12 representation would be looked into, it will be apparent, no such grievance was ever raised about creating confusion in understanding and opting the subject by the candidate. He has further submitted that it will also be very apparent from reply to the counter affidavit in paragraph 6, where it has been mentioned according to the broacher it is required to pass in two subjects but they were required to take either History or Geography compulsorily. He is putting emphasis on this paragraph and submitted even presuming the clauses were vague but petitioners would be non-suited once they understood the contents of the broacher and they have acted upon, accordingly. Counsel for the petitioners fairly accepted that no fraud or any illegality has been committed either at the examination centre or in evaluation of answer sheet.
16. The respondent Board has submitted that Advertisement as well as the manner the questions were arranged were very clearly illustrated and even a person of normal intelligence can understand the manner they have to give an answer to the corresponding questions. It has further been submitted that for the Art subject as like Social Science one of the compulsory subject was to opt History or Geography and optional subjects Patna High Court CWJC No.13083 of 2012 (14) 13 were Political Science and Economics and the candidates were required to choose any two subjects one from either, History or Geography i.e. compulsory subject and one subject from Political Science and Economics or also from left out compulsory subject as optional subject. He further explained that candidates could have opted as History as a compulsory subject at the same time Geography is optional subject. In the question paper and answer sheet it was not arranged as first paper and second paper but the question and multiple choice answers were arranged as per the option given by the candidate in the form of the eligibility test. It also appears from Clause 11 of the Information Bulletins explained that in what manner the person has to opt the subject as in the note it has been mentioned that the candidate will have to opt any of the subject as compulsory subject which has been taught to him at the graduate level. For example if a person has done History Hon‟s he could have opted History as one of the subject and if a person has done Geography Hon‟s he may opt Geography as one subject but if a person is Hon‟s in Political Science as well as Economics and one of the optional subject of the candidate must be History or Geography. He cannot opt as second paper but was to opt subject as compulsory subject Patna High Court CWJC No.13083 of 2012 (14) 14 in the manner the application form gave instruction was to solve question paper in the answer sheet as were arranged. Similarly the candidate of Mathematics will have to opt as Mathematics as compulsory subject and another one subject from Physics, Chemistry, Economics Computer Science, as optional subject and answer sheets were arranged in the manner and mode the question papers were arranged correspondingly. If a person has opted for Science he must have read Chemistry, Botany and Zoology at the graduate level the person will have to opt as compulsory subject as Chemistry and optional subject either Botany or Zoology was required to give the answer in the manner he opted subject in his application. It has further been submitted that test was conducted in computerized system as multiple choice answers were given and the right answer was required to be rounded corresponding to questions so arranged. Though after the general knowledge the questions were divided in different segment and multiple answers are arranged corresponding to the questions so arranged in two parts, question nos. 1 to 50 are compulsory and was required to be solved by each candidate, has been categorized as teaching Art and reasoning. Segment 2 deals with Social Science, has been divided in four Patna High Court CWJC No.13083 of 2012 (14) 15 categories, first is History, second is Geography, third is Political Science and forth is Economics, each section contains 50 questions, has been arranged as 51 to 101. As for example if a person has opted History and Geography according to his choice 51 to 100 is for History and 101 to 150 is for Geography. Similarly if a person opted for History and Political Science he was required to answer as History 51 to 100 and 101 to 150 as Political Science and so on so forth. In similar way also the person who has opted for Science subject Chemistry was compulsory subject, Botany or Zoology was optional subject. If the person is required to answer for Chemistry it was 51 to 100 and for Zoology or Botany it was 101 to 150. He has further submitted that there was no confusion at all even normal prudent intelligent person could have easily comprehend the mode and manner the candidate was required to give answer. So much so large number of candidates (33 lacs candidates) have appeared only few candidates like petitioner who could not succeed in the examination has filed this writ petition and has taken a strange ground for challenging the process of selection. He has further submitted that if they were under confusion, the manner they were to fill up form and to solve the answer sheet they were Patna High Court CWJC No.13083 of 2012 (14) 16 required to enter into correspondence with the Board. So much so they never raised grievance in the examination centre or thereafter nor any candidate has taken such plea in their respective representation but for the first time in the pleading of present writ they have raised this issue when they were not declared successful. He has further submitted that there is no allegation of malafide or any wrong was committed in the examination center nor any allegation has been raised about the copying or any wrongful act was committed while evaluating their respective answer sheets but only the point of argument is confined that the questions paper were not arranged in the manner according to their option as they opted History as first subject but marking was done treating the first as second. He has further submitted that list of selected candidate has already been published but the selected candidates have not been made party and as such the writ petitions suffer from non-joinder of necessary party. In this view of the matter, this Court may refuse to exercise the writ jurisdiction.
17. Learned counsel for the Board in support of his contention has raised that the Court should not go for a fishing Patna High Court CWJC No.13083 of 2012 (14) 17 enquiry and Court may refuse to unsettle the matter which has been settled in a normal circumstances. He has relied on the judgment in the case of Sadananda Halo and others Vs. Momtaz Ali Sheikh and others, reported in (2008) 4 SCC 619 (paragraph nos.58, 59, 60 and 62).
18. In reply, learned counsel for the petitioner has submitted that the manner it has been arranged the candidates could not understand. He has accepted that he did not challenge the advertisement. Altogether 33 lacs candidates had appeared in the examination.
19. Judicial review is great weapon in the hand of the Judges, but the Judges must observe the constitutional limit set up by our parliamentary system upon the exercise of this beneficial power.
20. Judicial review as concerned with reviewing not merit of the decision but of decision making process.
21. The power of judicial review is neither unqualified nor un-limited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject matter of several judicial pronouncements within the Patna High Court CWJC No.13083 of 2012 (14) 18 country and out side the country. When one talks about the judicial review one is instantly reminded of the classic of oft- quoted passage from Council of Civil Service Unions and others Vs. Minister for the Civil Service, reported in 1985 AC 374 where Lord Diplock summed up the permissible grounds of judicial review:
"......Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call „illegality‟, the second „irrationality‟ and the third „procedural impropriety‟....
By „illegality‟ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
By „irrationality‟ I mean what can by now be succinctly referred to as „Wednesbury unreasonableness‟. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system....
I have described the third head as „procedural impropriety‟ rather than failure to observe basic rules of natural justice or failure to Patna High Court CWJC No.13083 of 2012 (14) 19 act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
22. The above principle has been accepted by this Court in long line of decisions from time to time. One of the classic judgment that has been considered the area of judicial review in the administrative action in the case of Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651 and relevant portion of the same is as follows:
"77. The duty of the court is to confine itself to the question of legality. Its concern should be:
(1) Whether a decision-making authority exceeded its powers?
(2) committed an error of law, (3) committed a breath of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached or, (5) abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect Patna High Court CWJC No.13083 of 2012 (14) 20 to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety."
23. In the case of State of Punjab Vs. Gurdial Singh, reported in (1980) 2 SCC 471 where Krishna Iyer, J. noticed the limitations of judicial review and declared that the power vested in the superior courts ought to be exercised with great circumspection and that interference may be permissible only where the exercise of the power seems to have been vitiated or is otherwise void on well-established grounds: The Court has observed as follows(SCC0475 para 8):
" 8..... The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock jawed save where the power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset."
24. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision but, with the decision-making process. As a matter of fact, the juristic basis for such limitation on the exercise of the power of judicial review is that unless the restrictions on the power of the court are observed, the courts may themselves Patna High Court CWJC No.13083 of 2012 (14) 21 under the guise of preventing abuse of power, be guilty of usurping that power (Chief Constable of the North Wales Police Vs. Evans, reported in (1982)3 All ER 141 (HL).
25. The court while exercising the power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of the Hon‟ble Supreme Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land (Union of India Vs. S.B. Vohra (2004) 2 SCC 150, Shri Sitaram Sugar Co. Ltd. Vs. Union of India, (1990) 3 SCC 223 and Thansingh Nathmal Vs. Supdt. Of Taxes, AIR 1964 SC 1419.
26. The Hon‟ble Supreme Court in the case of Heinz India Private Limited and another Vs. State of Uttar Pradesh and others, reported in (2012) 5 SCC 443 has considered the scope of judicial review in paragraph 68 and has considered the case of Reid Vs. Secy. of State for Scotland, reported in (1999)2 AC 512. It will be relevant to Patna High Court CWJC No.13083 of 2012 (14) 22 quote paragraph 68 of the aforesaid judgment:
" 68. We may while parting with the discussion on the legal dimensions of judicial review refer to the following passage from Reid V. Secy of State for Scotland which succinctly sums up the legal proposition that judicial review does not allow the court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case. (AC pp.541 F-H and 542A) "Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse, or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."Patna High Court CWJC No.13083 of 2012 (14) 23
27. This Court can only consider under the judicial review the decision making process not the decision unless the same suffers from illegality, irrationality (wednesbury unreasonableness) and procedural impropriety.
28. It is well settled principle of law that in the academic matters, unless there is clear violation of statutory provisions, the regulations or the notification issued, the courts should keep their hands off since those issues fall within the domain of the experts. The Court shall not generally sit in appeal over the opinion expressed by the expert of academic bodies normally it is wise and safe for the court to leave the decision in the hand of academic expert who are more conversant with the problem they faced and allow the expert body to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research but in certain cases the court may interfere when a case has been made out the decision, and action is tainted by malpractice, fraud or corrupt method has been applied in holding the examination and publication of the result.
29. This Court is entitled under the jurisdiction of judicial review to see that the expert body should maintain purity of selection process but also to ensure that no candidate may Patna High Court CWJC No.13083 of 2012 (14) 24 earn undeserved advantage over the others by application erroneous question and wrong answers in multiple choice answer. The Hon‟ble Supreme court in the case of Bihar School Examination Board Vs. Subhas Chandra Sinha and others, reported in AIR 1970(1) SC 1269 the Court had occasion to examine the issue raised therein was alleged that when there was an allegation of mass copying and unfair means was adopted in the Examination centre the Court was of the view that if such an event had taken place the court in exercise of the writ jurisdiction should interfere and party should be given to justice. The Hon‟ble Supreme Court was of the view that the University are responsible for maintaining the standard and conduct of the examination. It will be relevant to quote paragraph nos. 14 and 15 of the aforesaid judgment:
"14. Reliance was placed upon Ghanshyam Das Gupta‟s case (supra) to which we referred earlier. There the examination results of three candidates were cancelled, and this Court held that they should have received an opportunity of explaining their conduct. It was said that even if the inquiry involved a large number of persons, the Committee should frame proper regulations for the conduct of such inquiries but not deny the opportunity. We do not think that that case has any application. Surely it was not intended that where the examination as a whole was vitiated, say by leakage of papers or by destruction of some of the answer books or by Patna High Court CWJC No.13083 of 2012 (14) 25 discovery of unfair means practiced on a vast scale that an inquiry would be made giving a chance to every one appearing at that examination to have his say? What the Court intended to lay down was that if any particular person was to be proceeded against, he must have a proper chance to defend himself and this did not obviate the necessity of giving an opportunity even though the number of persons proceeded against was large. The Court was then not considering the right of an examining body to cancel its own examination when it was satisfied that the examination was not properly conducted or that in the conduct of the examination the majority of the examinees had not conducted themselves as they should have. To make such decisions depend upon a full- fledged judicial inquiry would hold up the functioning of such autonomous bodies as Universities and School Board. While we do not wish to whittle down the requirements of natural justice and fair-play in cases where such requirement may be said to arise, we do not want that this Court should be understood as having stated that an inquiry with a right to representation must always precede in every case, however different. The Universities are responsible for their standards and the conduct of examinations. The essence of the examinations is that the worth of every person is appraised without any assistance from an outside source. If at a centre the whole body of students receive assistance and are managed to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the University or the Board must do something in the matter. It cannot hold a detailed quasi- judicial inquiry with a right to its alumni to plead and lead evidence etc., before the results are withheld or the examinations cancelled. If there is sufficient material on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be Patna High Court CWJC No.13083 of 2012 (14) 26 cancelled then academic standards require that the university‟s appreciation of the problem must be respected. It would not do for the Court to say that you should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not. To do this would encourage indiscipline if not also perjury.
15. We are satisfied that no principle of natural justice was violated in this case. The Board through its Chairman and later itself reached the right conclusion that the examinations at this centre has been vitiated by practicing unfair means on a mass scale and the Board had every right to cancel the examination and order that a fresh examination be held. There was no need to give the examinees an opportunity of contesting this conclusion because the evidence in the case was perfectly plain and transparent. We therefore set aside the order of the High Court and ordered dismissal of the writ petition but made no order as to costs."
30. In the case of Chairman, J & K State Board of Education Vs. Feyaz Ahmed Malik and others, reported in (2000) 3 SCC 59 the Hon‟ble Supreme Court has considered the area where this Court can interfere in the wisdom of the expert academic body as the Court has held that it is an expert body consisting of persons coming from different walks of life who are engaged in or interest in the field of education and have wide experience. The decision of such an expert body should be given due weightage by courts but the Court under the judicial review can interfere to correct an error in Patna High Court CWJC No.13083 of 2012 (14) 27 complying with provisions of the rules, regulation or notification and also if any, manifest injustice has been perpetrated. It will be relevant to quote paragraph 20 of the said judgment:
"20. Coming to the case on hand, as noted earlier, the High court has quashed the notification issued by the Board as ultra vires Article 14 of the Constitution and ultra vires the Act. Further the High Court has discussed at length how the Board should proceed in the matter and has issued directions regarding the principles to be followed and matters to be borne in mind by the Board while framing Rules and has even issued directions as to what some of the provisions of the Rules should be. From the discussions in the impugned judgment it is clear that the High Court has taken upon itself the task of finding out a scheme to tackle the problem of mass malpractice in examination. In our considered view the approach of the High Court in the matter is erroneous and this has vitiated the judgment. In matters concerning campus discipline of educational institutions and conduct of examinations the duty is primarily vested in the authorities in charge of the institutions. In such matters the Court should not try to substitute its own views in place of the authorities concerned nor thrust its views on them. That is not to say that the court cannot at all interfere with the decisions of the authorities in such matters. The court has undoubtedly the power to intervene to correct any error in complying with the provisions of the rules, regulations or notifications and to remedy any manifest injustice being perpetrated on the candidates. In judging the validity of a notification containing provisions regarding steps to be taken when a report of mass malpractice is received it is to be kept in mind whether the provisions contained in the notification are Patna High Court CWJC No.13083 of 2012 (14) 28 relevant for achieving the purpose for which the notification is issued and if it is found that the notification is relevant for and has a nexus with the purpose to be achieved then the notification cannot be said to be arbitrary and discriminatory. The High Court has failed to keep this principle in view while considering the validity of the notification in question. A notification cannot be struck down as discriminatory merely because in implementing the same injustice is likely to be suffered by some candidates. The impugned judgment does not show that the decision to strike down the two notifications is based on grounds sound in law and justified on facts. It is our considered view that the judgment of the High Court is unsustainable and has to be quashed."
31. The court in the case of mass copying or leakage of question papers or such other circumstances has interfered in the matter and has held that fair procedure would mean that the candidates taking part in the examination must be capable of competing with each other by fair means. One cannot have an advantage either by copying or by having fore knowledge of the question paper or otherwise. The Court has held that wide latitude should be shown to the Government or its agent and the Courts should not unduly interfere with the action taken by the Government which is in possession of necessary information and takes action upon the same. This view has been reiterated in the case of B. Ramanjini and others Vs. State of A.P. and others, reported in (2002) 5 SCC 533. Patna High Court CWJC No.13083 of 2012 (14) 29
32. In the case of East Coast Railway and another Vs. Mahadev Appa Rao and others, reported in (2010) 7 SCC 678 failed candidates to qualify in the test made a representation complaining about the manner in which test was conducted made allegation of providing defective typewriting machine to them and they were placed at a disadvantaged position vis-à-vis successful candidates. In that case the Divisional Manager of the Railway cancelled the test conducted on typewriting machine and directed to hold fresh typewriting test which was impugned by some of the candidates. The Court has tested the issue on the touch stone of Article 14 of the Constitution as it strikes at arbitrariness and restores fairness and rule of law. The Court has considered under what circumstances the administrative action of can be said to be arbitrary. It will be relevant to quote paragraph nos. 19, 20,22 and 23 of the said judgment:
"19. Black‟s Law Dictionary describes the term "arbitrary‟ in the following words:
"Arbitrary.- 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law.
2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious."
20. To the same effect is the meaning given to the expression "arbitrary" by Corpus Juris Secundum which explains the term in the Patna High Court CWJC No.13083 of 2012 (14) 30 following words:
" Arbitrary.- Based alone upon one‟s will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one‟s own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, non-rational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power , despotic, or tyrannical; harsh and unforbearing. When applied to acts, „arbitrary‟ has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with „willful‟.
22. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf and Jowell in their celebrated books on Judicial review of Administrative Action emphasized how the decision-maker-invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise. One of the most fundamental principles of the rule of law recognized in all democratic systems is that the power vested in any competent authority shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite:
" We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general Patna High Court CWJC No.13083 of 2012 (14) 31 principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretion is to be exercised in accordance with those principles unless Parliament clearly, indicates otherwise. One such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to the law and that power should not be arbitrarily exercised. The rule of law above all rests upon the principle of legal certainty, which will be considered here, along with a principle which is partly but not wholly contained within the rule of law, namely, the principle of equality, or equal treatment without unfair discrimination."
23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evidence from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question.
Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable."
33. One of the recent judgments the matter arising from this Court in the case of Rajesh Kumar and others vs. State Patna High Court CWJC No.13083 of 2012 (14) 32 of Bihar and others, reported in 2013(4) PLJR 398(SC) the matter went to the Hon‟ble Supreme Court where the Court has occasion to examine the problem that out of 100 questions 49 answers of "Model Answer Key" were found to be wrong and two questions were found erroneous and one question was found repeated. In that case this court constituted team of experts referred the "Model Answer Key" for examination by two experts, namely Dr. Professor C.N. Sinha and Professor K.S.P. Singh, associated with NIT, Patna who found several answers to be wrong and in addition two questions were also found to be wrong while two others were found to be have been repeated. Question no.100 was also found to be defective as the choices in the answer key were printed but only partially. This Court in the Single Bench quashed the whole selection but the Division Bench modified the order declared that the entire examination was not required to be cancelled as there was no allegation of corrupt motive or corrupt practice directed for holding the fresh examination in Civil Engineering Paper only. The Division Bench further directed, those appointed on the basis aforesaid selection were allowed to continue until publication of the fresh result, any of them failed to matric grade on the basis fresh examination Patna High Court CWJC No.13083 of 2012 (14) 33 was given chance to appear in another examination. The Hon‟bel Supreme Court has modified the order of the Division Bench holding that answer-sheet should be examined, re-examined by the correct "Model Answer Key‟ and Hon‟ble Court passed the order in following terms:
" 19. The submissions made by Mr Rao are not without merit. Given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re- evaluated on the basis thereof. There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh attempt by all concerned. The process of re-evaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case."
34. This case is no applicable to the facts of the present case.
35. In the case of University Grants Commission and another Vs. Neha Anil Bobde (Gadekar), reported in (2013) Patna High Court CWJC No.13083 of 2012 (14) 34 10 SCC 519 where the Court has considered the power of judicial review in the matter of action taken by UGC where primarily duty was cast upon them that in consultation with the University and their bodies is concerned, all such step would be taken which may think fit for promotion and co- ordination of University education and for determination and maintenance of standards of teaching, examination and research in the University for the proper performing its function under the act. The issue was raised, whether UGC has power to fix the final criteria for those students who had obtained minimum marks in all the papers, before the final declaration of result. The Court while considering the scope of juridical review in paragraph nos. 22 and 31 of the said judgment has held as follows:
"22. We have elaborately referred to various statutory provisions which would clearly indicate that UGC as an expert body has been entrusted by the UGC Act the general duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the universities. It is also duty- bound to perform such functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India. UGC has also got the power to define the qualification that should ordinarily be required for any person to be appointed to the teaching staff of the university and to regulate the maintenance of standards and coordination of work and faculties in the universities.Patna High Court CWJC No.13083 of 2012 (14) 35
31. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore v. C.D. Govinda Rao, Tariq Islam v. Aligarh Muslim University and Rajbir Singh Dalal v. Chaudhary Devi Lal University has taken the view that the court shall not generally sit in appeal over the opinion expressed by the expert academic bodies and normally it is wise and safe for the courts to leave the decision of the academic experts who are more familiar with the problem they face, than the courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the university. For attaining the said standards, it is open to UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is, for maintenance of standards of teaching, examination and research. The candidates declared eligible for Lectureship may be considered for appointment as Assistant Professors in universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India."
36. In the case of State of Orissa and others Vs. Prajnaparamita Samanta and others, reported in (1996) 7 SCC 106 where the candidates failed in the examination Patna High Court CWJC No.13083 of 2012 (14) 36 approached by various writ petitions. The contentions of the students was that 38 questions were (a) either outside the syllabus, or (b) were such for which key answers given were wrong while the correct answers were available in the alternative answers given against the said questions, or (c) for which the alternative answers given were all wrong, or (d) such for which more than one alternative answers provided were correct. The Court has held, though the Courts normally do not act as an appellate court over the decision of the examining bodies but the Court in that case took pains and examined the said grievances of the students and ultimately came to the conclusion, nine questions for which the answers could be more than one. On that conclusion, the High Court directed the MBBS/BDS Selection Board to re-evaluate the answer books of those of the examinees who had secured a minimum of 105 marks and after re-evaluation of the nine questions concerned, give admission to those of the examinees who had secured a minimum of 114 marks but the relief was confined to those who approached the High Court. The matter went to the Hon‟ble Supreme Court and whole issue was referred to the expert provided its report and found that the complaint made by the students were correct and Patna High Court CWJC No.13083 of 2012 (14) 37 decision of the High Court was up-held.
37. In the case of Sadananda Halo in the State of Assam there was drive of selection of 5500 posts of Armed Constables which was initiated by advertisement. Selection list was challenged, the learned Single Judge made great deal of effort, upheld the selection of 10 district and selection of other rest district was set aside. The matter ultimately reached to Hon‟ble Supreme Court, the Hon‟ble Court considered how far the writ court can make enquiry of facts of the case dealing with power of judicial review, held, under judicial review, Court may refused to enter into the roving enquiry of facts. It will be apt to quote in paragraph nos. 58, 59, 60 and 62 has held as follows:
"58. It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible. The High Court not only engaged itself into a non-permitted fact-finding exercise but also went on to rely on the findings of the amicus curiae, or as the case may be, the scrutiny team, which in our opinion was inappropriate. While testing the fairness of the selection processes wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings. It was not for the High Court to place itself into a position of a fact-finding commission, that too more particularly at the instance of those petitioners who were unsuccessful candidates. The High Court should, therefore, have restricted itself to the pleadings in the writ petition and the say of the respondents. Unfortunately, the High Court took it upon itself the task of substituting itself for the Patna High Court CWJC No.13083 of 2012 (14) 38 Selection Committee and also in the process assumed the role of an appellate tribunal which was, in our opinion, not proper. Thus, the High Court converted this writ petition into a public interest litigation without any justification.
59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India V. S. Vinodh Kumar, (2007) 8 SCC 100 where one of us (Sinha, J.) was a party. This was a case where different cut-off marks were fixed for the unreserved candidates and the Scheduled Caste and Scheduled Tribe candidates. This Court in para 10 of its judgment endorsed the action and recorded a finding that there was a power in the employer to fix the cut-off marks which power was neither denied nor disputed and further that the cut-off marks were fixed on a rational basis and, therefore, no exception could be taken. The Court also referred to the judgment in Om Prakash Shukla V. Akhilesh Kumar Shukla, 1986 Supp SCC 285 where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise. The Court further made observations in para 34 of the judgment to the effect:
(S. Vinodh Kumar Case, SCC p.107 para 19) "19......34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."
In para 20 this Court further observed that there are certain exceptions to the aforementioned rule. However, the Court did not go into those exceptions since the same were not material.
60. In our opinion the first basic thing for such a Patna High Court CWJC No.13083 of 2012 (14) 39 selection process would be the lack of bona fides or, as the case may be, mala fide exercise of powers by those who were at the helm of selection process. Both the courts below have not recorded any finding that they found any mala fides on the part of any of the state officials who headed the interviews. On the other hand the tenor of the judgments shows that the whole process did not suffer from mala fides, lack of bona fides, bias or political interference. In Union of India V. Bikash Kuanar, (2006)8 SCC 192 this Court observed in para 14 thus: (SCC p.195) "14. When a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias. A presumption arises in regard to the correctness of the official act. The party who makes any allegation of bias or favouritism is required to prove the same. In the instant case, no such allegation was made. The selection process was not found to be vitiated. No illegality was brought to our notice."
62. We have already shown in the earlier part of our judgment that there were proper advertisements issued and reasonable procedure was chalked out in the earlier meetings held by the authorities, even the guidelines were defined and the interviews proceeded along those guidelines. A mere expression of doubts only on the ground of large number of candidates appearing and their not being objectively and properly tested without any further material, in our opinion, cannot by itself render the whole selection process illegal."
38. In similar type of case issue has been raised in this Court in C.W.J.C. No.9569 of 2013 where allegation was made of wrong method was applied is evaluating the answer sheet, the proper method of scaling down/ moderation was not applied with an intention to apply uniform standard for Patna High Court CWJC No.13083 of 2012 (14) 40 evaluation of the answer sheet. The Court while addressing this issue held that "we as a court of law will not sit in appeal over the method adopted by examining to ascertain its accuracy. Suffix that the commission has taken steps to bring itself abreast of preventive system and we do trust that Commission will come out with appropriate role to make the system uniform effective and condone."
39. In the present case there is no allegation of wrong method was adopted, malpractice have been committed nor they have raised any grievance that any of the answer given in the answer book in the shape of multiple choice answer were wrong, repeated or otherwise suffered from other errors. Primarily in this case the petitioners have raised issue that they could not understand the manner the questions were arranged and they were to give reply. They have further submitted that though they have given a particular subject as first opted paper and another as second opted paper and question paper corresponding answer sheet were not arranged in that order that was the reason for committing mistake. The plea has been taken question of different subjects were arranged in such erratic manner, no prudent person can decipher the mode and manner of arrangement of questions Patna High Court CWJC No.13083 of 2012 (14) 41 and corresponding OMR sheet caused for failure to succeed in the test. This Court feels that the plea is not sustainable as they understood the advertisement, filled up the form in the manner prescribed so much so the representation which they have filed before the Board they have not averred a word about the wrong manner of arrangement of question and OMR sheet/answer sheet. In the writ petitions for the first time they ingeniously made out their ground of wrong arrangement of questions corresponding OMR Sheet. The plea, the manner the questions were placed cannot be said scientifically and properly have been arranged, cause of committing error in giving answer is not acceptable to this Court. One of the major issue they have raised questions were divided two segments first deals with Teaching and Reasoning arranged in 1 to 50 compulsorily required to be solved by each candidates, second section deals with choice sections candidate who opted, Social Science, the each candidate was to choose compulsorily either History or Geography. One more subject was to be opted out of four subjects, in the following manner, if a candidate makes a choice, either History, he may opt, either Geography, Economics or Political Science. Similarly, if a candidate chooses, Geography, he may Patna High Court CWJC No.13083 of 2012 (14) 42 choose either History, Economics or Political Science. In the same manner if the person has chosen Mathematics he has to choose Mathematics as must and second subject, any subject mentioned in that category, in similar way, if any candidate opted Science, he was required to elect, Chemistry as first subject and second subject either Botany or Zoology. Second Section of questions were arranged in 51/101, 52/102 ----- 100/150. If a candidate has chosen History part he was required to solve in 51 ....to 100 and second subject was to be solved in 100 to 150 in OMR computerized sheet and similar manner Mathematics or Science portion was to be solved. On examination of application form, guideline and OMR sheet give complete and clear instruction of the manner question paper was to be solved. On examination aforesaid documents, there was no provision of first choice or second choice. Question nos.51/101 for each subject either in social science or in the mathematics and science. They have taken plea that in some cases they have selected particular subject as first selected paper which was his Honours paper and second selected paper in which they have been taught as pass course subject. As explained above, there was no question of selection of Hon‟s. or pass course subject. This Court is not a Patna High Court CWJC No.13083 of 2012 (14) 43 court of appeal only this Court under judicial review can only interfere when the manner the questions arranged in such way that no prudent candidate would be able to decipher and give answer which has been provided in the question paper corresponding to the answer sheet. In the present writ petitions huge number of candidates have appeared only small portion have come forward raising issue of not making proper arrangement of question paper corresponding to the answer sheet, could not decipher, the manner questions were to be solved. If they could not understand the manner they were to fill up the form or understand the manner they were to solve question, after publication of Information Bulleting or even at the examination centre, they could have raised this issue earlier but even after the publication of result in none of the representation such plea has been taken, now they cannot be allowed to change their stand for their convenience. If a person participates in the selection process in event of failure toqualify, he/they cannot be allowed to turn round and challenge the selection. As there is no allegation of providing wrong question and corresponding answer, no question was repeated in "Model Answer Key" nor there is allegation of fraudulent act was committed in conducting the examination Patna High Court CWJC No.13083 of 2012 (14) 44 in evaluation nor in publications of the result, this Court is not inclined to interfere with the matter.
40. Accordingly all the aforesaid writ petitions are dismissed.
Vinay/- (Shivaji Pandey, J)