Madhya Pradesh High Court
Manoj Krishna Mishra vs The High Court Of Madhya Pradesh on 22 August, 2022
Author: Vishal Mishra
Bench: Ravi Malimath, Vishal Mishra
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
WRIT PETITION NO.16211 OF 2022
Between:-
1. MANUJ KRISHNA MISHRA S/O SHRI RAM
KRISHNA MISHRA AGED ABOUT 28 YEARS,
OCCUPATION : STUDENT R/O 31ST
GANGOTRI VIHAR, KHARAGPUR, GOMTI
NAGAR, LUCKNOW (U.P.) 226010
2. ABHISHEK KUMAR MISHRA S/O SUBHASH
CHANDRA MISHRA AGED ABOUT 25
YEARS OCCUPATION : STUDENT, R/O
H.NO.106, SHARDA APARTMENT, GOMATI
NAGAR, LUCKNOW (U.P.) 206010
3. KARISHMA SHARMA D/O LOKESH KUMAR
SHARMA AGED ABOUT 26 YEARS,
OCCUPATION : STUDENT, R/O 854-B,
JAMUNA DAIRY, SODALA JAIPUR
(RAJASHTHAN) 302006
4. ANUJA SHARMA D/O ARUN SHARMA AGED
ABOUT 27 YEARS, R/O NEW SANSKAR
GIRLS HOSTEL, NEW PALASIA INDORE
(M.P.) 452001.
.....PETITIONERS
(BY SHRI MANOJ SHARMA - SENIOR ADVOCATE
WITH SHRI QUAZI FAKHRUDDIN - ADVOCATE)
AND
2
THE HIGH COURT OF MADHYA PRADESH,
THROUGH THE REGISTRAR GENERAL,
DANNING ROAD, SOUTH CIVIL LINES,
JABALPUR (M.P.)
.... RESPONDENT
(BY SHRI ASHISH SHROTI - ADVOCATE)
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Reserved on : 03.08.2022
Delivered on : 22.08.2022
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This petition coming on for admission this day, Hon'ble Shri
Justice Vishal Mishra, passed the following:
ORDER
The writ petition has been filed seeking indulgence of this Court for an order for re-computation/reassessment of the marks obtained by the petitioners/candidates who appeared in the Madhya Pradesh Online Preliminary Exam of Civil Judge Class-II (Entry Level) Exam, 2021, the result of which was declared on 09.06.2022, wherein owing to manifestly wrong modification of the answers and arbitrary deletion of patently correct questions, the grave prejudice has been caused to the petitioners as they have been declared as unsuccessful candidate.
2. It is the case of the petitioners that an advertisement was issued on 21.12.2021 by the respondent No.1 seeking appointment for the post of Civil Judge Junior Division Entry Level inviting application against 123 vacancies. The Civil Judge Class -II (Entry Level) Direct Recruitment is governed by Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules 1994. The vacancies were subsequently increased upto 270 posts in total. The preliminary 3 examination was a computer based objective exam consisting of 150 questions having four options each and candidate appearing was expected to choose the most appropriate option as per their answer amongst the four options as possible. The online preliminary examination was to be held on 06.05.2022 and the admit cards were issued to the candidates. After successful conduction of online preliminary examination, the answer keys of question paper objective type (Proposed Answer Keys) were published on the basis of which it is intended to evaluate all OMR sheets. The objections and clarifications, if any were invited regarding the proposed 'model answer keys' to be submitted within seven days from the date of uploading of the model answers/keys. It was made clear that after declaration of result no representation regarding question or final model answer shall be entertained on any ground and shall be rejected without assigning any reason. In all 30 questions out of 150 questions were objected to by numerous candidates and after one month from the inviting objections/clarifications pertaining to the proposed answer keys on 09.06.2022, vide notification final result of online Civil Judge Preliminary Examination was published. After deciding the objections, the list of successful candidates were published. It is the case of the petitioner that he has raised objection in five questions out of which two answers were modified and two questions were deleted for which the petitioner has to suffer. The scorecards were obtained after the declaration of the result. Due to apparent arbitrariness employed by the respondents, while deciding the final answer key manifest error evident from the face of it, they have been confronted with unjustified failure in the present exam. It is argued that the authorities/ 4 respondents have adopted a different method for making the calculations which is just contrary to the law laid down by the Hon'ble Supreme Court in the case of Kanpur University Vs. Samir Gupta reported in (1983) 4 SCC 309.
3. It is argued that for question No.19 there may be two answers but the authorities have not considered the same and while preparing the final answer keys have selected option No.3. Similar is the case for question No.33 and question No.9 and question No.134. With respect to Questions No.102 and 131, the Authorities have not considered the answers which has been given by the petitioners. It is the case of the petitioners that correct answers were marked by them which as per the information from the relevant sources were to be correct but the final answer key reflect the wrong answer. The Authorities by preparing the final answer-sheet have deleted two questions from the list and have awarded one mark each to every student for every deleted question. It is submitted that the aforesaid method which has been adopted is illegal and arbitrary as the candidate who has not even attempted the question or he has wrongly attempted the question, he has been granted the marks, which is again contrary to the law laid down by the Hon'ble Supreme Court. Had it been the condition that the authorities have granted one mark to the candidate, in lieu of the cancelled question or in lieu of the final model answer keys showing more than one option to be correct in that the petitioners would have been qualified as they are less by one mark from the cut off marks. In such circumstances, the indulgence of the Court is warranted for.
4. Counsel appearing for the petitioners in support of his submissions has placed reliance upon the judgments passed by the 5 Hon'ble Supreme Court in the cases of Guru Nanak Dev University Vs. Saumil Garg and others reported in (2005) 13 SCC 749, Nitin Pathak Vs. State of M.P. and others reported in 2017 (4) MPLJ 353 and Richal and Others Vs. Rajasthan Public Service Commission and Others reported in (2018) 8 SCC 81.
5. Per contra, by filing a return to the writ petition counsel appearing for the respondents have denied the contentions and has argued that the evaluation and preparation of the final answer sheets was being done after calling the objections from the candidates. The petitioner herein are the candidates who participated for Civil Judge Junior Division (Entry Level) Examination, 2021 were declared as unsuccessful as they could not touch the cut off marks of 125. After the declaration of preliminary results, the answer sheets were published along with the model answer key on 06.05.2021 inviting objections from the candidates. The objections submitted by the candidates were taken into consideration by the Finalizing Committee and has rejected all the objections except with respect to questions No.9,19, 33 and 134. The Committee changed the correct answer out of the given options with respect to question Nos.19 and 33 and question Nos.9 and 134 were cancelled. Towards the cancelled questions, one mark was awarded to all the candidates. Thereafter, the final scorecard was prepared on the basis of final answer key. The petitioners have obtained 124 marks which is just less than one from the cut off marks. It is contended that with respect to the cancelled question i.e. question No.9 and question No.134, the answer sheets of the candidates were checked. 160 candidates opted for either 'Union List' or the 'Concurrent List' which is one of the correct answers.
6Therefore, even if the petitioners' contentions are considered they could not have get selected as they have already been awarded marks for this question. The cut off marks would remain the same. They will not change. Despite giving benefit of the marks to the petitioners there will be no change towards the deleted questions. Granting marks to all the candidates will not change the entire result. Therefore, the argument of the petitioners that giving one mark to each of the candidates who have not even attempted the question would not make any change in the result, therefore, the aforesaid argument is of no use to the petitioners.
6. As far as questions of which model answers were corrected i.e. question No.19 and question No.33 is concerned, with respect to question No.19, option No.(i) was marked correct. However, on receiving the objection, it was changed to option No.(iii) i.e. the judgment debtor can raise the said objection for the first time in Executing Court placing reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Sarwan Kumar Vs. Madan Lal reported in (2003) 4 SCC 147.
7. The petitioner No.1 has chosen option No.(i), petitioner No.2 has chosen option No.(iv), petitioner No.3 has chosen option No.(ii) and petitioner No.4 has chosen option No.(i). None of the petitioners has not ticked the correct option, therefore, no marks were rightly been awarded to any of the candidates. With respect to question No.33, initially option No.(i) was marked as correct, however, after receiving the objection, it was changed to option No.(iv) i.e. 'None of these'. The petitioner No.1 has chosen option No.(iii), petitioner No.2 has chosen option No.(iii), petitioner No.3 has chosen option No.(ii) 7 and petitioner No.4 has chosen option No.(i). None of the candidates/petitioners have chosen the correct option i.e. option No.
(iv), therefore, the marks were not rightly granted to them.
8. With respect to question No.102 that is question of which objections were rejected, that is for an application of Section 300 of the Code of Criminal Procedure, 1973 which one of the following is incorrect? As per the model answer key, option No.(iv) was correct because from bare perusal of Section 300 of Cr.P.C. reveals that first three answers are correct, while the fourth option is incorrect and the candidate was required to choose the incorrect answer. Option No.(ii) as per the petitioner is not an appropriate answer as option No.(iv) as per the definition of Section 300 of Cr.P.C. was the correct answer to the question.
9. With respect to question No.131, that is collection of records on a particular topic in a database are stored, option No.(i) was the correct answer and the petitioners have chosen option No.(iii) i.e. 'Folder'. Initially, the records of database are stored in a file and thereafter in a folder. Folder contains multiple files, therefore, the correct option was 'File' and not the 'Folder'. The Authorities have rightly considered the questions and answers and after considering the objections have finally prepared the final answer sheet and have awarded marks accordingly. The petitioners have questioned the correctness of the answers decided by the Answer Finalising Committee which consists of subject experts. The aforesaid issues is no more res integra in the case of Kanpur University (supra) as well as in the case of Anjali Saxena Vs. M.P. Professional Board reported in AIR 1990 MP 253, wherein the Court has held that 8 the answer sheets which are being prepared by the experts and after dealing with the objections will be treated to be the correct answer sheets and no further clarification/modification will be done. To bolster his submissions, he has further placed reliance upon the judgment passed in the case of the Vivek Jain Vs. M.P. Professional Examination Board reported in AIR 1994 MP 164. He has again placed reliance upon the judgments passed in the case of Mayank Bhardwaj Vs. State of M.P. (Writ Petition No.7434 of 2011) reported in 2012 SCC Online MP 1979, wherein it was held that in such matters the Courts should not lightly interfere with the opinion expressed by the academic experts, when there is no discrimination in awarding the marks and effective of alleged wrong answer is equally on all the candidates, no interference should be made. He has prayed for dismissal of the writ petition.
10. Heard the learned counsel for the parties and perused the record.
11. The undisputed facts being that the petitioners in pursuance to the advertisement issued inviting applications for Civil Judge Junior Division (Entry Level) Examination, 2021 has participated in the same and they were declared unsuccessful candidates, as they could not touch the cut off marks of 125. The petitioners after publication of the final result stated to have scored 124 marks. The model answer sheets were published wherein several objections were raised by the candidates including the petitioners and the matter was placed before the Answer Finalising Committee to consider the objections. After due consideration of all the objections, the objections were rejected except for Questions No.9, 134, 19, and 33. Questions No.9 and 134 were cancelled and one mark was awarded to all the candidates who 9 participated in the examination in lieu of the cancelled questions. As far as questions No.19 and 33 are concerned, the Committee has changed the correct answer out of the given option.
12. Counsel for the petitioners has heavily objected to the correct answers as far as two questions are concerned, that is Question No.102 and Question No.131. The question No.102 was to the following effect :-
"Question No.102 For the application of Section 300 of Code of Criminal Procedure, 1973, which one of the following is incorrect?
i. That there must have been a previous trial of the accused for the same offence;
ii. For the accused to be acquitted in previous trial for the same offence;
iii.For the previous proceedings to have been for the same offence;
iv. It is not necessary that the Court who conducted the trial was competent or not to try the case."
The candidate was required to mark the incorrect option from the given four options and as per the model answer key, the option No.(iv) was the correct answer. Even from the plain reading of Section 300 of Cr.P.C., it is apparently clear that option No.(iv) was the correct answer.
13. As far as question No.131 which reads as under :-
"Question No.131 A collection of records on a particular topic in a database are stored as -
i. File;
ii. Record;
iii. Folder;
iv. Field;"10
the option No.(i) was the correct answer as per the model answer sheet. The contentions of the petitioners are that option No.(i) as well as option No.(iii) both are correct answers, as they have downloaded the answers from the internet from various sites pointing out that the file as well as the folder are correct answers because the data of the record are being stored either in a file or in a folder, but as per the plain reading of the aforesaid, it is clear that initially the records of a particular topic in a database are stored in a file and a folder may be consisting of one or more than one files. The initial database is stored in a file, as the folder can be collection of many files, therefore, the correct answer as per the experts was option No.(i). The two objections which have been taken by the petitioners were corrected by the expert committee and thereafter the marks were awarded, therefore the aforesaid argument is of no help to the petitioners. The argument of the petitioners that wrong method for granting marks to the candidates has been adopted by the respondents and they have granted one mark each to all the candidates even for a question which was cancelled or deleted, benefiting the candidates who have not even attempted the question. The fact remains that the aforesaid method adopted by the respondents is contrary to the law laid down by the Hon'ble Supreme Court in the case of Kanpur University (supra).
14. When the advertisement was issued all the terms and conditions were published, the petitioners have accepted those conditions with wide open eyes. No objection was raised at any point of time prior to participating in the proceedings and thereafter upto the stage of declaration of results. The petitioners cannot raise any objection after the game has already been played by them, as per the settled legal 11 proposition. It is not disputed that the petitioners knowing well the terms and conditions, in lieu of the advertisement issued by the Authorities participated in the procedure, raising objections to the model answer keys and after the final answer key was prepared and marks were awarded, the petitioners were found to be unsuccessful as they could not touch the cut off marks. Now they have filed the petition challenging the terms and conditions of the advertisement and method in which the marks have been awarded and to certain extent, certain questions which were wrongly being considered by the Expert Committee.
15. In the case of Anjali Saxena (supra), this Hon'ble Court has held as under :-
"6. What happens when the correctness of this key answer is questioned? The matter came for consideration by the Supreme Court in Kanpur University v. Samir Gupta, AIR 1983 SC 1230. It was held that the key answer should be assumed to be correct, unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. The Court further observed that the key answer must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard it as correct. In case of doubt, the key answer has to be preferred. When the key answer is shown to be incorrect beyond the realm of doubt that it should be rejected, in that event alone, the examinee cannot be penalised, for not giving an answer which accords with the key answer. This, decision was followed by a Division Bench of the Allahabad, High Court in the case of Pankaj Bhalla v. Rohilkhand University, Bareilly, 1989 All LJ 80.1. Another Division Bench of the Allahabad High Court (Lucknow Bench), in Krishna Kumar Roy v. State of U.P., Writ. Petn. No. 3108 of 1980, decided, on 17-12-1980 :
(reported in AIR 1981 All 287), held that the Court should not lightly interfere with the opinion expressed by academic experts but may interfere only where the expert 12 takes a view which no reasonable person could possibly take. The correctness or otherwise of the key answer, therefore, be based upon the touch stone of the decision in Samir Gupta's case (supra).
11. For the aforesaid reasons, we are of the opinion that none of the petitioners in the two petitions could demonstrate that the key answers to the questions, referred to by them in their respective petition and as referred to above, are incorrect, i.e., they are such that no reasonable body well-versed in a particular subject, would regard it as correct. It may be that the answers ticked as correct by them may not be wholly wrong or may even be closely correct to the key answer, but then, as we have pointed out above, unless the key answer is demonstrated to be 'wrong', the key answer should be accepted as the correct answer."
16. In the case of Vivek Jain (supra) this Court has held as under :-
"17. The above course of awarding proportionate marks appears to have the approval of the Apex Court. Speaking about defective questions by referring to them as 'suspect' questions, the Supreme Court in Kanpur University and others Vs. Samir Gupta and others (supra) in paragraph 18 of the report observed that if the attention of the University is drawn to any suspect question, prompt and timely decision must be taken by the University to declare that suspect question as excluded from the paper and no marks should be assigned to it. The exact words used by their Lordships are as follows (at p. 1234) :--
"Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it."
17. In the case of Mayank Bhardwaj (supra) this Court has held as under :-
"11. On the basis of these judgments, following principles can be culled out :- (1) the key answer is correct unless proved to be wrong. (2) judicial review cannot be on the basis of inferential process or process of rationalization 13 (3) key answer must be clearly demonstrated to be wrong (4) answer must be such as no reasonable body of men well versed in the particular subject would regard as correct (5) the court should not lightly interfere with the opinion expressed by the academic experts (6) when there is no discrimination in awarding the marks and effective of alleged wrong answer is equally on all the candidates no interference is warranted."
(7) Writ court cannot sit in judgment over those findings and examine the material of record to arrive at its own conclusion as a court of appeal."
18. There is no dispute that the petitioners have participated in the proceedings well aware of the terms and conditions of the advertisement, therefore, they are being restrained from challenging the terms and conditions of the advertisement after they have been declared as unsuccessful candidates. The respondents have already clarified the fact that the model answer keys were examined by the committee of experts, wherein the objections were dealt with and the final answer key was prepared and marks have been awarded in terms of final answer key. Once the final answer key is being prepared by the Expert Committee after dealing with all the objections, no reassessment can be done. As per the settled legal proposition, the expert body has already evaluated all the questions and answers and has prepared the final answer keys. The same cannot be interfered by this Court. This Court cannot sit over the expert opinion given by the Committee while finalising the answer keys. They have to be accepted as it is. The Hon'ble Supreme Court in the case of Union of India Vs. Kushala Shetty and others reported in AIR 2011 SC 3210 has considered the scope of review against the experts report and has held that the report prepared by body of experts should not be normally interfered as this Court cannot examine the correctness of report given 14 by an expert in absence of any strong material on record. The Hon'ble Supreme Court in the case of University of Cochin Vs. N.S.Kanjoonjamma and others reported in (1997) 4 SCC 426 has held as under :-
"4. It is not in dispute that Rules 14 to 17-A having specifically been adopted by the aforesaid Resolutions of the Syndicate and approved by the University the power of the University to adopt the Rules has not been challenged. The aforesaid Resolutions of indicate that the University has properly made of Rules 14 to 17-A applicable in relation to the recruitment of non-teaching staff to the University in certain posts viz., Class I Class III and Class IV. In furtherance thereof, the Vice-Chancellor was authorised by the Syndicate to advertise the posts and constitute a Selection Committee for recruitment of the candidates. In furtherance thereof, a Committee was constituted. Advertisement came to be made. It is seen that when the general rules have been made applicable there is no necessity by the University to make a special reservation rule for special recruitment. Therefore, the non-mention of the special recruitment in the Resolution is of little consequence. As seen the Syndicate adopted the Rules in relation to the non-teaching staff of the University As a consequence, the advertisement came to be made for special recruitment of the Scheduled Castes and Scheduled Tribes to the posts reserved for them. In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure. That apart we have already held that procedure was correctly followed and, therefore, the omission to mention in the advertisement that it was a special recruitment is of no consequences. The further finding of the High Court relates to Proviso 1 to Rule 4 which provides that when duly qualified candidates are available the appointment shall be made to them. In other words, if duly qualified candidates are available, the appointment shall be made to them. In other words if duly qualified candidates are not available then advertisement could be made for selection. That rule is applicable to the 15 general recruitment. But with reference to the special recruitment of the candidates belonging to the Scheduled Castes and Scheduled Tribes Rules 14 to 17-A stand attracted. In addition as seen earlier, the advertisement came to be made as early as on 22-4-1982 by which time the Resolution of the Syndicate was not adopted, the same having been adopted on 7-3-1982. So, Rule 4 is inapplicable to the special recruitment advertised on 1-10- 1981. Therefore, the later Resolution applying Rule 4 has no retrospective effect. It is contended by the learned counsel for the respondent 1, that respondents 3 and 4 have left the jobs and so there is no need to disturb the appointment of the first respondent. As they are said to be on foreign service they are entitled to join back on their posts. Thus considered, the High Court was clearly in error in allowing the writ petition."
19. In such circumstances, as the petitioners have been declared as unsuccessful candidates no benefit in the present petition can be extended to them. The contentions which have been raised by the petitioners in the present petition are of no help to the petitioners.
20. In such circumstances, this petition sans merit and is hereby dismissed. No orders as to cost.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM.
Digitally signed by ANINDYA
SUNDAR MUKHOPADHYAY
Date: 2022.08.22 18:43:01
+05'30'