Allahabad High Court
Brij Raj And 3 Ors. vs State Of U.P. And 5 Ors. on 10 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2266
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 43910 of 2016 Petitioner :- Brij Raj and 3 Ors. Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- Seemant Singh,Rajesh Kumar Gautam Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Connected with Case :- WRIT - A No. - 16427 of 2017 Petitioner :- Rajesh Respondent :- State Of U.P. And 7 Ors. Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,Ajay Kumar Singh,Ashok Kumar Yadav,Satyaveer Singh 2. Case :- WRIT - A No. - 18528 of 2017 Petitioner :- Santosh Kumar Pandey And 3 Ors. Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Seemant Singh and Shri Alok Mishra, appearing for the petitioners; Shri Piyush Shukla, learned Standing Counsel for the State respondents and Shri Satyaveer Singh, Advocate appearing for the U.P. Secondary Education Service Selection Board, Allahabad.
2. In leading Writ A No.43910 of 2016 the petitioners have prayed for direction in the nature of certiorari quashing the impugned result of written examination dated 29.7.2016 for the post of Trained Graduate Teacher, Subject Biology, declared by the Secretary, U.P. Secondary Education Service Selection Board, Allahabad as well as the second revised answer key having incorrect answers of question Nos.15, 17, 35, 78 and 89 on the basis of which the result of the written examination dated 29.7.2016 has been declared. They have also prayed for issuing direction to the respondents to rectify the impugned second revised answer-key by feeding correct answers of question Nos.15, 17, 35, 73, 78 and 89 and thereafter prepare result of the written examination afresh on the basis of rectified answer key.
3. In the connected writ petitions, the petitioners have prayed for quashing the impugned result dated 22.3.2017 declared by the Board for selection on the post of Trained Teacher, Subject Biology pursuant to advertisement dated 28.12.2013 as well as for quashing the impugned notification dated 3.4.2017 by which the Board has prepared the panel of selected Trained Graduate Teachers (Biology) consequent to the select list dated 22.3.2017.
4. Record in question reflects that U.P. Secondary Education Service Selection Board, Allahabad (in short, the Board) issued an advertisement dated 28.12.2013 inviting applications for appointment on the post of Trained Graduate Teacher in different subjects including the subject Biology. In pursuance of the aforesaid advertisement the petitioners applied for and were issued admit card for appearing in the written examination. They appeared in the written examination on 1.2.2015 in their respective centres. The answer key was issued by the Board at its official website in respect of total 125 questions of TGT, Subject Biology. Some candidates made objections against the answer key of written examination and hence, the Board proceeded to issue first revised answer key. Finally, the Board declared the impugned result of written examination dated 29.7.2016 for TGT, Subject Biology in which only the petitioner no.2 of the leading petition got selected while other petitioners could not secure their selection in the impugned result dated 29.7.2016. The impugned result dated 29.7.2016 was based upon the impugned second revised answer key dated 1.8.2016. The candidates submitted their objections before the Board against the first revised answer key and subsequently, the Board declared impugned result dated 29.7.2016 and simultaneously the impugned result dated 29.7.2016 was uploaded in its official website on 1.8.2016.
5. In this backdrop, learned counsel for the petitioners submits that pursuant to the advertisement dated 28.12.2013 inviting applications for the post of TGT (Biology), all the petitioners appeared in the written examination on 01.02.2015 and the first answer key as well as the first revised answer key was found satisfactory and, therefore, no objection to it was filed by the petitioners. Thereafter, on 29.07.2016, the result was declared in which except petitioner no.2 of the leading writ petition, the rest of the petitioners could not succeed. On 01.08.2016, another revised answer key was uploaded on the website concerned which forms the basis of evaluation of the answers from which the result was prepared. It is submitted that in the revised answer key, which was uploaded on 01.08.2016, the answers to as many as five questions, namely, question nos. 15, 17, 35, 73, 78 and 89, were erroneous and since the revised answer key was uploaded after the declaration of result, there was no occasion for the petitioners to file an objection to the same. So far as the expert opinion is concerned, the marks have not been awarded to all the candidates. Such situation has impelled the petitioners to approach this Court with the aforesaid reliefs. In support of his submission, he has placed reliance on the judgement of this Court in Writ A No.9912 of 2017 (Yogendra Singh vs. State of UP and 2 others) decided on 18.4.2018.
6. On the other hand, learned counsel for the contesting respondent, on the basis of counter affidavit dated 18.5.2017 filed on behalf of the Secretary of the Board, submits that an expert opinion has been received through the Department of Zoology of University of Allahabad on 16.1.2017, whereby the expert has opined in respect of question no.42 as Option No.A to be correct and in that regard, he has provided materials which were analyzed by Victor Hemberger and Howard L. Hamilton. So far as question no.57 of Booklet Series 'A' is concerned, the expert has also opined that all the answers given therein are incorrect, therefore, full marks have been awarded to all the candidates. The said opinion of question no.57 has been provided in Booklet Series 'A', which is same to the answer of question no.35 of Booklet Series 'C'. With regard to question no.88 of Booklet Series 'A', the expert has opined option 'A' as correct answer on the basis of material in reference to book of 'Invertebrate Zoology' by Robert D. Bornes. So far as question no.94 of Booklet Series 'A' is concerned, the expert has given its opinion that the answer of the said question is option No.C. The reliance has been placed on the material provided/written by R. Michaen Roberts and others in respect of heading evaluation of Placenta. Similar answer opined by the subject expert is to be treated at par to the answer of question no.89 of Booklet Series 'C'. In regard to question no.2 of Booklet Series 'A' the subject expert opined that since the said question is faulty, therefore, answer should be treated as capital 'F' and equal marks has been awarded to all the candidates. With regard to question no.73 of Booklet Series 'C', the subject expert has opined that the said question is incorrect and therefore, the same may be treated as faulty.
7. In this backdrop, learned counsel appearing for the contesting respondent has placed reliance on the judgement passed by Hon'ble Apex Court in U.P.P.S.C. through its Chairman and another vs. Rahul Singh and another connected with Civil Appeal Nos.5839 of 2018 and 5840-5842 of 2018 decided on 15.5.2019, wherein the Division Bench of this Court, while considering the expert opinion, had substituted its own finding and such practice has been deprecated by Hon'ble Apex Court while deciding the aforesaid civil appeals. It is submitted that once the expert opinion has been sought in the matter and accordingly, the result has been modified then at this stage there is no occasion to interfere with the selection. The selection has already been taken place and the appointments were given to the selected candidates way back in the year 2016 and without hearing the parties, specially the selected candidates, no such direction can be issued at this stage. He has also placed reliance on the judgement passed by the Apex Court in Ran Vijay Singh vs. State of UP and others reported in (2018) 2 SCC 357 as well as judgement of this Court in Writ A No.6506 of 2019 (Brajesh Kumar Pandey vs. State of UP and 5 others) decided on 15.5.2019.
8. The Court has proceeded to examine the record in question and finds that in response of the aforesaid written examination the objections were invited and in response thereof, the candidates submitted their objections. An expert opinion was sought in respect of question nos.15, 17, 35, 73, 78 and 89 of Booklet Series 'C'. Thereafter, the expert has considered the said objections and as per opinion of the expert the revised result had been declared on 29.7.2016 and the same was uploaded on the website of the board. Therefore, the result was prepared in pursuance of the revised result dated 29.7.2016, which was uploaded on the website on 1.8.2016. There is no provision for re-evaluation and inviting objection to the second stage, where the petitioners are aggrieved.
9. The Writ A No.16427 of 2017 was taken up on 18.12.2018 and on the said date the Court had asked the Secretary of the Board to file an affidavit clarifying as to whether the answer key uploaded subsequently was made the basis for evaluation of answer sheets and that the objections of the petitioners were duly taken note of. In compliance of the aforesaid order dated 18.12.2018, an affidavit of compliance has been filed on behalf of Secretary of the Board on 1.12.2019, wherein it has been stated that in response of the advertisement dated 28.12.2013 the written examination was held on 1.2.2015 for Subject Biology and the answer key was uploaded on 4.2.2015 on the official website of the Board. The objections were invited after consideration of the objections and obtaining opinion of the expert and thereafter the amended answer key was prepared on 20.8.2015 and the same was uploaded on the website of the Board on 21.8.2015. Upon this amended answer key dated 21.8.2015 objections were filed and after consideration of the objections and taking expert opinion, the second amended answer key was prepared on 4.7.2016. On the basis of the second amended answer key the evaluation was made and the final result of written examination was declared on 29.7.2016. The same was uploaded on the official website of the Board on 01.8.2016. So far as question nos.15, 17, 35, 73, 78 and 89 of question booklet series 'C' (wherein objections of the candidates were invited) are concerned, final result was declared and the second answer key uploaded subsequently was made the basis for evaluation of answer sheets. The objections of the petitioners were properly considered and after obtaining the opinion of the expert the final result was declared.
10. Hon'ble Supreme Court has time and again pointed out that it is for the bodies entrusted with the task of holding an examination to determine what policy should be adopted and it is not for the candidates appearing at the examination to dictate what particular policy should be adopted. In this connection, reference needs to be made to the decision of the Supreme Court in Maharashtra State Board of Secondary and Higher Education & Anr, Vs. Paritosh Bhupesh Kurmarsheth, etc. etc,. AIR 1984 SC 1543 in which the Supreme Court examined the scope of interference in policy matters and observed :-
"It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.
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The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution."
11. The Constitution Bench of the Supreme Court in University of Mysore Vs. C.D. Govinda Rao & Anr., AIR 1965 SC 491, held that in academic matters, where the decision under challenge has been taken by the Committee of Expert, "normally the Courts should be slow to interfere with the opinion expressed by the experts" unless there are allegations of mala fide against any of the Members of the Expert Committee. Similar view has been taken by the Supreme Court in State of Bihar & Ors. Vs. Dr. Asis Kumar Mukherjee & Ors., AIR 1975 SC 192; Dr. M. C. Gupta & Ors. Vs. Dr. Arun Kumar Gupta & Ors., (1979) 2 SCC 339; Rajendra Prasad Mathur Vs. Karnataka University & Anr., AIR 1986 SC 1448; Dr. Uma Kant Vs. Dr. Bhika Lal Jain & Ors., AIR 1991 SC 2272; The Chancellor & Anr. Vs. Dr. Bijay Nanda Kar & Ors., (1994) 1 SCC 169; State of Orissa & Ors. Vs. Prajnaparamita Samanta & Ors., (1996) 7 SCC 106; Chairman, J & K State Board of Education Vs. Fayaz Ahmad, (2000) 3 SCC 59 and The Dental Council of India Vs. Subharti K.K.B. Charitable Trust & Anr., AIR 2001 SC 215.
12. In Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr. (2010) 6 SCC 759 Hon'ble Supreme Court observed as follow:-
"In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
13. The Apex Court in the case of Subash Chandra & Ors. Etc. vs. State of Bihar & Ors., Etc. reported in 1995 Suppl. (1) SCC 325, has explained that normally the High Court should appoint an expert body and obtain its opinion in the matter of confusing or controversial nature of questions. Relevant paragraph reads as follows:
"Normally speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise."
14. It is also worthwhile to refer to paragraph-25 of the judgment of the Apex Court in the case of Subhash Chandra (Supra), which provides that if controversial questions have been set and in relation to some questions, there could be more than one answer. In an objective type of test, more than one answers are given. The candidate is required to tick mark the answer, which is the most appropriate out of the plurality of answers.
15. In U.P.P.S.C. through its Chairman and another vs. Rahul Singh's case (supra), the challenge was raised to the correctness of the key answers in respect of 14 questions of examination of the Upper Subordinate Services of the State conducted by the U.P. Public Service Commission. The Division Bench of this Court examined these questions and after elaborate discussion and reasoning negatived the prayer of the petitioners in respect of 11 questions but in respect of one question the Division Bench held that the question should be deleted; in respect of another question it held that there were two correct answers and in respect of one more question, it disagreed with the view of the Commission and accepted the submission of the petitioners that the answer given in the key was incorrect. The said judgement dated 30.3.2018 was challenged before the Apex Court in the aforesaid appeals. Hon'ble Apex Court had allowed the appeal preferred by the Commission on 14.6.2018 and set aside the judgement of this Court. Consequently, the civil appeals preferred by Rahul Singh and Jay Bux Singh and others were also dismissed. Relevant portion of the judgement is reproduced herein below:-
"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 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 9 Committee recommended that 5 questions be deleted and 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 3 questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.
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 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.
16. In view of the above discussion we allow the appeal filed by the U.P. Public Service Commission and set aside the judgment of the Allahabad High Court. The appeals filed by Rahul Singh and Jay Bux Singh and Others are dismissed. All pending applications stand disposed of."
16. In view of aforesaid facts and circumstances, the Court is not inclined to interfere in the matter.
17. Consequently, all the writ petitions are dismissed.
Order Date :- 10.12.2019 RKP