Punjab-Haryana High Court
Navdeep Kaur vs State Of Punjab And Others on 1 June, 2023
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2023:PHHC:080579-DB
2023:PHHC:080579-DB
CWP Nos.11695 of 2023 (O&M) and connected petitions 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 11695 of 2023(O&M)
1. Date of Decision: June 01 , 2023.
Navdeep Kaur
.......Petitioner
Versus
State of Punjab and others
...... Respondents
AND
2. CWP No. 5308 of 2023(O&M)
Rakesh Kumar Sharma
.......Petitioner
Versus
State of Punjab and others
...... Respondents
3. CWP No. 11237 of 2023(O&M)
Gurmeet Kaur
.......Petitioner
Versus
State of Punjab and others
...... Respondents
4. CWP No. 4890 of 2023(O&M)
Ishan Goyal
.......Petitioner
Versus
State of Punjab and others
...... Respondents
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CWP Nos.11695 of 2023 (O&M) and connected petitions 2
5. CWP No. 4697 of 2023(O&M)
Rajni Devi
.......Petitioner
Versus
State of Punjab and others
...... Respondents
6. CWP No. 11312 of 2023(O&M)
Simerpreet Sekhon
.......Petitioner
Versus
State of Punjab and others
...... Respondents
7. CWP No. 11926 of 2023(O&M)
Paranmani
.......Petitioner
Versus
State of Punjab and others
...... Respondents
8. CWP No. 6497 of 2023(O&M)
Sangeeta Choudhary
.......Petitioner
Versus
State of Punjab and others
...... Respondents
9. CWP No. 4630 of 2023(O&M)
Navjot Kaur and another
.......Petitioners
Versus
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CWP Nos.11695 of 2023 (O&M) and connected petitions 3
State of Punjab and others
...... Respondents
10. CWP No. 5323 of 2023(O&M)
Vidit Mehta
.......Petitioner
Versus
State of Punjab and others
...... Respondents
11. CWP No. 6493 of 2023(O&M)
Kulwinder Kaur
.......Petitioner
Versus
State of Punjab and others
...... Respondents
12. CWP No. 6684 of 2023(O&M)
Himanshu Rai
.......Petitioner
Versus
State of Punjab and others
...... Respondents
13. CWP No. 7983 of 2023(O&M)
Rahul
.......Petitioner
Versus
State of Punjab and others
...... Respondents
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CWP Nos.11695 of 2023 (O&M) and connected petitions 4
14. CWP No. 8366 of 2023(O&M)
Gursimran Kaur and another
.......Petitioners
Versus.
State of Punjab and others
...... Respondents
15. CWP No. 9028 of 2023(O&M)
Prabhjeet Singh
.......Petitioner
Versus
State of Punjab and others
...... Respondents
16. CWP No. 9803 of 2023(O&M)
Hargun inder Singh
.......Petitioner
Versus
State of Punjab and others
...... Respondents
17. CWP No. 10483 of 2022(O&M)
Mankirat Kaur Sra
.......Petitioner
Versus
State of Punjab and others
...... Respondents
18. CWP No. 9256 of 2023(O&M)
Raham
.......Petitioner
Versus
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CWP Nos.11695 of 2023 (O&M) and connected petitions 5
State of Punjab and others
...... Respondents
19. CWP No. 8614 of 2023(O&M)
Vaibhav Kataria
.......Petitioner
Versus
State of Punjab and others
...... Respondents
20. CWP No. 5971 of 2023(O&M)
Raja Tripat Partap Singh Cheema
.......Petitioner
Versus
State of Punjab and others
...... Respondents
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. D.S.Patwalia, Sr. Advocate
with Mr. A.S.Chadha, Advocate
for the petitioner (s) in CWP Nos. 11695 and 8366 of 2023
Mr. G.S.Bal, Sr. Advocate
With Mr. Dilshad G. Gill, Advocate
for the petitioner (s) in CWP No. 5323 of 2023.
Ms. Ridhi Bansal, Advocate
and Ms. Sidhi Bansal, Advocate
for Ms. Sangeeta Chaudhary, Advocate
for the petitioner (s) in CWP No. 6497 of 2023.
Mr. Pardhuman Garg, Advocate
for the petitioner (s) in CWP Nos. 4630, 4697, 4890, 6593,
6684, 9028, 9256 and 8614.
Mr. Gurinder Pal Singh, Advocate
for the petitioner (s) in CWP No. 10484 of 2023.
Mr. Pawandeep Singh, Advocate
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CWP Nos.11695 of 2023 (O&M) and connected petitions 6
for the petitioner (s) in CWP No. 11312 of 2023.
Mr. Vinish Singla, Advocate
for the petitioner (s) in CWP No. 5971 of 2023.
Ms. Srishti Shukla, Advocate
for the petitioner (in CWP Nos. 11237 and 11926 of 2023).
Mr. Sandeep Jain, Addl.AG., Punjab.
Mr. Sandeep K. Sharma, Advocate
for respondents no.1 to 4 in CM-9857-CWP of 2023 in CWP
No. 4697 of 2023.
Dr. Payal Mehta, Advocate
for respondent no.3 (in CWP Nos. 11237, 11312, 11695,
11926, 7983, 8366 and 9803 of 2023).
Mr. Shobit Phutela, Advocate
for Punjab and Haryana High Court (in CWP Nos. 6684, 9028,
5971, 8614, 9256, 4630, 4697, 6497, 4890, 5308, 5329, 6493 of
2023).
*****
LISA GILL, J.
1. All these writ petitions are being taken up together for hearing at request and with consent of all learned counsel for the parties as prayer in all these writ petitions is for quashing the final answer key dated 21.02.2023, Annexure P-5A, in respect to various Sets/Codes of question papers of the Preliminary Examination of the Punjab Civil Services (Judicial Branch), which was held in pursuance to advertisement dated 06.09.2022, Annexure P-1.
2. For the sake of convenience basic foundational facts have been culled out from CWP No. 11695 of 2023, with the specific questions, answer key of which is under cloud, being taken from different writ petitions as narrated in the following paras.
3. Advertisement dated 06.09.2022, Annexure P-1, was issued for inviting online application forms from eligible candidates for the post of Civil Judge (Jr. Division)-cum-Judicial Magistrate. 52 out of 159 posts were 6 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 7 advertised in the general category with breakup of posts for other categories being detailed in Clause 2.2 of the said advertisement. Process of selection of candidates includes three stages i.e., Preliminary examination, Main examination and viva voce. As per Clause 3.3 of the Advertisement, preliminary examination consists of objective type questions with multiple choices with question paper consisting of 125 questions with each question carrying four (04) marks.
4. It is stated in Clause 3.3 (i) of the Advertisement that preliminary examination would be of objective type questions with multiple choices (which can be scrutinized by computer) as distinguished from the main written examination which would be subjective/narrative type.
Question paper for preliminary examination would be of two hours with each question carrying four marks. For each incorrect answer, 0.20 % i.e., 1/5th marks would be deducted. It is further provided that there will be no negative marking in respect of un-attempted questions.
5. Admittedly, Preliminary examination was conducted on 22.01.2023 after issuance of notice attached as Annexure P-2 with CWP No. 11695 of 2023. There were four sets (Codes) of papers - A, B, C and D, containing the same 125 questions in different seriatim. Petitioners in all the writ petitions took the preliminary examination. Total applications received for the Preliminary Examination is informed to be 8363 and number of applicants who took the Preliminary Examination is 6497.
6. Proposed answer key was released on 24.01.2023, whereby cut off was set at 393.6 marks for the General Category and 349.6 for the Backward Caste Category. Objections were invited to the proposed answer key by 30.01.2023. As per information supplied by the respondents, 993 objections in respect to 51 questions, including the 14 questions involved in 7 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 8 the present writ petitions, were received.
7. Learned Recruitment Committee consisting of five Judges of this High Court constituted an Expert Panel compromised of three members of the rank of Additional District and Sessions Judge on 03.02.2023 to examine the objections and submit recommendations. Petitioners in the present writ petitions submitted their objections qua the questions, which are detailed as under along with the marks secured by them in the Preliminary Examination:-
Sr. Petition No. Case Title Questions Marks Obtained No. Challenged
1. CWP No. 11237 Gurmeet Kaur Vs. State 1, 64, 73 391.20 of 2023 of Punjab and others
2. CWP No. 11312 Simerpreet Sekhon Vs. 64, 73, 85, 385.60 of 2023 State of Punjab and 88 others
3. CWP No.11695 Navdeep Kaur Vs. State 67, 94 390.40 of 2023 of Punjab and others
4. CWP No. 11926 Paranmani Vs. State of 69, 73 391.20 Punjab and others
5. CWP No. 4630 Navjot Kaur and another 1, 69 Navjot Kaur 388.00 of 2023 Vs. State of Punjab and Nazuk Sood 390.40 others (2 Petitioners)
6. CWP No. 4697 Rajni Devi Vs. State of 37, 64, 73, 335.20 (BC of 2023 Punjab and others 94 Category) CM-9856-CWP Intervenor (Shubham 37, 73 386.40 of 2023 Grover) CM-9857-CWP Intervenor (Poonam 37, 64 385.60 of 2023 Goswamy)
7. CWP No. 6497 Sangeeta Choudhary Vs. 67, 69, 73, 340.00 (BC of 2023 State of Punjab and 94 Category) others
8. CWP No. 4890 Ishan Goyal Vs. State of 91, 103, 392.00 of 2023 Punjab and others
9. CWP No. 5308 Rakesh Kumar Sharma 37, 64, 73, 382.40 of 2023 Vs. State of Punjab and 91, 94 others
10. CWP No. 5323 Vidit Mehta Vs. Punjab 1, 64, 69, 381.60 of 2023 and Haryana High Court 73, 85, 91 and another and 103
11. CWP No. 6493 Kulwinder Kaur Vs. 73 390.40 of 2023 State of Punjab and others
12. CWP No. 6684 Himanshu Rai Vs. State 94 328.00 (SC of 2023 of Punjab and others Category)
13. CWP No. 7983 Rahul Vs. State of 37, 73, 94 392.00 of 2023 Punjab and others
14. CWP No. 8366 Gursimran Kaur and 73, 94 Gursimran Kaur of 2023 another Vs. State of 391.20 Punjab and others (2 Sandeep Singh petitioners) 387.20
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15. CWP No. 9028 Prabhjeet Singh Vs. 35, 73, 91, 347.20 (BC of 2023 State of Punjab and 94 Category) others
16. CWP No. 9803 Hargun Inder Singh Vs. 73, 117, 17, 373.60 of 2023 State of Punjab 1, 64
17. CWP No. 10483 Mankirat Kaur Sra Vs. 64, 73 392.80 of 2023 State of Punjab and others
18. CWP No. 9256 Raham Vs. State of 35, 69, 94 392.80 of 2023 Punjab and others
19. CWP No. 8614 Vaibhav Kataria Vs. 35, 94 384.80 of 2023 State of Punjab and others
20. CWP No. 5971 Raja Tripat Partap Singh 64, 85, 91 389.60 of 2023 Cheema Vs. State of Punjab and others
8. It was submitted by learned counsel for the parties that question numbers as reflected in the abovesaid table are as per the seriatim in Set/Code-A irrespective of the seriatim in the different Sets/Codes i.e., Sets/Codes B, C and D. Objections as raised by the present petitioners are in respect to the answer key qua 14 questions at serial numbers 1, 17, 35, 37, 64, 67, 69, 73, 85, 88, 91, 94, 103 and 117 as in Set/Code-A.
9. It is informed that 1354 candidates qualified for the main examination. 1333 candidates have registered for the main examination to be conducted on 02.06.2023. The Expert Panel constituted by the Learned Recruitment Committee submitted its report on 10.02.2023 with its recommendations to the Learned Recruitment Committee for taking final decision on the objections.
10. Details of the objections submitted and recommendation thereon by the Expert Panel as found in the written statements/replies filed in some of the writ petitions and as produced before us by learned counsel for respondent No.3 are reproduced hereunder:-
Sr. Questions in Petitioners Claim Consideration by Recommendation of the Decision of the No. dispute Panel Expert Panel Learned (initial answer Recruitment key) Committee
1. Question No. 1: CWP No.4630 of 2023 D Reading of the Criminal Deleted Q) Which of the Law (Amendment) Act, (The Committee following sections That the Petitioner has claimed that 1983 (Act No. 43 of 1983) considered the 9 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 10 have been inserted the correct answer of Question No.1 reveals that Sections 376A recommendations in the Indian is answer "C" and contends that this and 376B were inserted in of the Expert Penal Code, 1860 claim is supported by Notification the Indian Penal Code (for Panel as also the by the Criminal issued by Ministry of Law and short, "Code") in the year objections and Law Justice (Legislative Department) 1983. Perusal of the cross-objections (Amendment) dated 02.04.2013, the Indian Penal Criminal Law received on the Act, 2013: Code was amended by virtue of the (Amendment) Act, 2013 recommended A) Section 376A Criminal Law Amendment Act indicates that Sections change of answer B) Section 376B 2013. 166A, 166B and 354C key. After C) Sections 166A, The Petitioner further states that the were inserted (i.e. for the deliberating on 166B, 354C provisions of the abovementioned first time), whereas Section the same, the D) All of the Notification make it clear that 376A and 376B, which Hon'ble above Section 166A, 166B, 354C have were already in the Code Committee been inserted in the Indian Penal since the year 1983, were resolved to delete Code, 1860 by the Criminal Law substituted in the year the question Amendment 2013 and Sections 2013. The question posed being 376A, 376B have been substituted is specifically asking for ambiguous.) not inserted in the IPC 1860. the inserted provisions and Therefore, the Petitioner claims that not amended/substituted answer "C" to the question no.1 of provisions. Though, Code A would be the correct and changes have been effected the right answer and there was no in Sections 376A and 376B need or any necessity to delete the through the Criminal Law same without any sufficient cause. (Amendment) Act, 2013 by substituting the provisions.
CWP No.11237 of 2023 However, the insertion Therefore, the Petitioner claims that amounts to new addition answer "D" to the question no.1 of which is not the case in Code A would be the correct and hand. Therefore, the the right answer and there was no objections raised by the need or any necessity to change the candidates have merits and Answer to option C and in the opinion of this panel, subsequently, delete the same the correct answer is option without any sufficient cause. C and not option D. Thus, the Panel Contends that this claim is recommends the change of supported by Notification issued by official answer key from Ministry of Law and Justice Option D to Option C. (Legislative Department) dated 02.04.2013, the Indian Penal Code was amended by virtue of the Criminal Law Amendment Act 2013.The Petitioner further states that the provisions of the abovementioned Notification make it clear that Section 166A, 166B, 354C have been inserted in the Indian Penal Code, 1860 by the Criminal Law Amendment 2013 and Sections 376A, 376B have been substituted not inserted in the IPC 1860.
CWP No.9803 of 2023Petitioner claims that the proposed answer key of question No.1 was published as "D". She had also marked option "D" as her answer.
The same has been arbitrarily deleted while finalizing the answer key.
2. Question no. 17 CWP No.9803 of 2023 The question posed Q) Section 162 of The Petitioner states that the A pertains to Section 162 A the Code of protection under Section 162 is CrPC. Sections 161 and Criminal given to both the accused as well as 162 CrPC relate to the oral Procedure, 1973 witnesses. So the marks should be examination of witnesses is for the given to the candidates who mark by the police, the record to protection of- Option A or Option B. be made of their statement A) Accused and the use to which it may B) Witnesses be put subsequently. The C) Police officer provisions primarily D) Magistrate protect the interest of the accused and creates an 10 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 11 absolute bar against the previous statement made before the police officer being used for any purpose whatsoever except provided in the proviso and 162(2). There is no reference to the word "witness" in section 162(1) CrPC. The proviso refers to a witness in the context of use of his previous statement, if any suffered by him to the police officer. The bar against obtaining signature of the person being examined by the police officer, if his statement is recorded in writing, is meant to protect the interest of accused from being prejudicially affected by any dishonest or questionable methods adopted by police officer.
Statements recorded under Section 161 CrPC, reduced into writing, if duly proved, may be used by the accused to contradict such witness and the procedure for contradiction is stipulated in Sections 145 Evidence Act, 1872. The prosecution may with the permission of Court, in certain circumstance, use the statement under Section 161 CrPC to contradict the witness and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness for the purpose of explaining any matter referred to in his cross-examination.
The panel has gone through the all the above judgments and has found nothing in the said judgments suggesting that Section 162 CrPC is meant for the protection of witness. The reasoning assigned by the objectors is found to be untenable.
The aforesaid view is also supported by the commentary of "Sohoni's Code of Criminal Procedure 21st Edition, Justice ML Singhal, volume 2, LexisNexis pp.
830-837"; B.B. Mitra on Code of Criminal Procedure, 1973, Volume I, 21st Edition (2011), page 768; Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973, Volume I (1996), 11 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 12 pp.37-42; Law Commission of India, 41st Report on the Code of Criminal Procedure, 1898, Volume I (September, 1969), pp.69- 76. Accordingly, the Panel is of the view that the official answer key is correct.
3. Question No. 35: CWP No.9028 of 2023 The term 'mesne profit' is Q) Mesne profits The Petitioner has claimed answer C defined in Section 2 (12) C can be claimed of Question No.35 to be "D". CPC to mean those profits regarding: Petitioner contends that this claim is which the person in A) Intellectual supported by the landmark case of wrongful possession of property only Jasbir Singh Vs Ranjit Singh (P&H) such property actually B) Movable Judgement (RSA No.4637 of 2010 received or might with property only dated 10.02.2011), this Hon'ble ordinary diligence have C) Immovable Punjab and Haryana High Court had received therefrom, property only dismissed the appeal filed by the together with interest on D) both movable Appellants whereby the plea was such profits but shall not and immovable taken by the Appellants that mesne include profits due to property profits can be claimed only for improvements made by the Immovable property and not for person in wrongful movable property and had upheld possession. the judgement passed by the Lower The Black's Law Court whereby mesne profit was Dictionary, 9th Edition at awarded to the respondents in case page 1329 defines mesne of Movable property. That the profits as the profits of an Petitioner further claims that the estate received by a tenant Hon'ble High Court in the in wrongful possession aforementioned case had also between two dates. The mentioned Section 2(12) of CPC, word "estate" is defined at which defines the meaning of mesne page 626 to be amount, profit which is reproduced as under: degree, nature, and quality "Mesne profit of property means of a persons' interest in those profits, which the person in land or other property; wrongful possession of the property, esp., a real-estate interest actually received or might, with that may become ordinary diligence, have received possessory, the ownership therefrom, together with interest on being measured in terms of such profits, but shall not include duration. profits due to improvements made Wharton's Law Lexicon by the person in wrongful in its 14 Edition at page possession.". 652 defines mesne profit as an action of trespass CWP No.8614 of 2023 brought to recover profits The Petitioner has claimed answer derived from land, whilst of Question No.35 to be "D". the possession of it has Petitioner contends that this claim is been improperly withheld:
supported by the landmark case of that is, the yearly value of Jasbir Singh Vs Ranjit Singh (P&H) the premises. Mesne profits Judgement (RSA No.4637 of 2010 are the rents and profits dated 10.02.2011), this Hon'ble which a trespasser has, or Punjab and Haryana High Court had might have, received or dismissed the appeal filed by the made during his Appellants whereby the plea was occupation of the premises, taken by the Appellants that mesne and which therefore he profits can be claimed only for must pay over to the true Immovable property and not for owner as compensation for movable property and had upheld the tort which he has the judgement passed by the Lower committed. Court whereby mesne profit was Justice C.K. Thakker, awarded to the respondents in case Judicial Officer's Law of Movable property. That the Lexicon, 3rd Edition Petitioner further claims that the 2014, on page 2992 has Hon'ble High Court in the given sources defining aforementioned case had also "mesne profits" and it has mentioned Section 2(12) of CPC, been considered to be which defines the meaning of mesne admissible in respect of profit which is reproduced as under: immovable property.
"Mesne profit of property means K.B. Singh v. M.D.I. Co- those profits, which the person in op, Association, AIR 1959 wrongful possession of the property, Manipur 9 at p13 has 12 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 13 actually received or might, with considered the definition of ordinary diligence, have received mesne profits in Section therefrom, together with interest on 2(12) CPC holding it to be such profits, but shall not include claimable in respect of profits due to improvements made immovable property only. by the person in wrongful To the similar effect is the possession.". decision of Himachal High Court in the case Karam CWP No.9256 of 2023 Chand vs. Punjab The Petitioner has claimed answer National Bank of Question No.35 to be "D". MANU/HP/0024/2000 Petitioner contends that this claim is which after relying on the supported by the landmark case of aforesaid decision as well Jasbir Singh Vs Ranjit Singh (P&H) as decision of the Supreme Judgement (RSA No.4637 of 2010 Court in Lucy dated 10.02.2011), this Hon'ble Kochuvareed vs. P. Punjab and Haryana High Court had MarlappaGounder AIR dismissed the appeal filed by the 1979 SC 1214 holds that Appellants whereby the plea was mesne profits are not taken by the Appellants that mesne claimable in respect of profits can be claimed only for movables. In this case Immovable property and not for plaintiff claimed mesne movable property and had upheld profits against the the judgement passed by the Lower defendants for being in Court whereby mesne profit was illegal possession of a awarded to the respondents in case truck. of Movable property. That the In Jasbir Singh supra; Petitioner further claims that the plaintiff claimed mesne Hon'ble High Court in the profits in respect of use of aforementioned case had also mini bus by the defendants mentioned Section 2(12) of CPC, for the period they which defines the meaning of mesne remained in illegal profit which is reproduced as under: possession of the bus and "Mesne profit of property means the Court based its those profits, which the person in reasoning on the ground wrongful possession of the property, that the term/expression actually received or might, with "property" in Section 2(12) ordinary diligence, have received CPC is not qualified by therefrom, together with interest on either immovable or such profits, but shall not include movable. profits due to improvements made The Panel after going by the person in wrongful through the decision possession.". rendered in Jasbir Singh (supra) has found that the learned Judge has not given any definite opinion on the interpretation of term "mesne profits"
defined in section 2(12) CPC as he alternatively considered the case of the appellant for damages or compensation under the law of tort. With due deference to the aforesaid authority, the Court, however, did not consider the effect of the remaining part of the provision on the interpretation of the aforesaid expression as well as its historical evolution.
No doubt mesne profits as defined under Section 2 (12) CPC employs the expression "property"
without any qualification, however, it talks about those profits which a person has actually received or might have received with ordinary diligence after remaining 13 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 14 in wrongful possession together with interest on such profits which shall not include profits due to improvements made by the person in wrongful possession. Apart from that Order 2 Rule 4, Order 7 Rule 2, Order Rule 20 Rule 12 and Order 21 Rule 42 treat claim for mesne profits only in respect of immovable property.
Though the Panel is of the view that the official answer key is correct yet in view of the single bench judgment of Punjab and Haryana High Court in Jasbir Singh (supra), the panel leaves it to the judgment of the Hon'ble Committee to take the final call.
4. Question No. 37:
Q) A decision on CWP No. 4697 of 2023. B The panel has considered B finding given by That the Petitioner claims that the the objections and finds Court without Correct Answer of Question No.37 those to be unfounded. The jurisdiction: is answer "C" and the reasoning of question refers to a general A) Can operate as which is according to them is principle governing res-
Res Judicata supported by law as stated as below: judicata and a decision on under all Jurisdiction of Court is broadly of 3 finding rendered by Court circumstances types: without jurisdiction cannot B) Cannot operate 1. Subject matter Jurisdiction: operate as res-judicata. The as Res Judicata If court doesn't have subject matter extrapolation on the part of C) Can operate as jurisdiction, then the the objectors by relying Res Judicata decision/decree is void and cannot upon Sections 11, 21 and under certain operate as res judicata. 21A CPC is incorrect. circumstances 2. Territorial Jurisdiction: If Even in the context of only court does not have territorial Section 11 CPC, the D) May operate as jurisdiction, then the Supreme Court in Church Res Judicata or decision/decree is not void and can of South India Trust Assn. may not still operate as res judicata if there vs. Telugu Church was no consequent failure of justice. Council, 1996 (2) SCC
3. Pecuniary Jurisdiction: If 520 has confined the Court does not have pecuniary competency of the Court in jurisdiction, then also respect of pecuniary and decision/decree is not void and can subject matter jurisdiction. still operate as res judicata if there Sections 21 and 21A CPC was no consequent failure of justice. relate to taking of objections as to jurisdiction That the Petitioner claims that of the Court to try a suit or perusal of the above said provision pass a decree and the makes it clear that in the cases of appropriate stage at which lack of Territorial and pecuniary it should be taken. It does jurisdiction, it is more of an not limit the operation of administrative and technical defect the principle of res- and it does not hit the roots of the judicata. The remaining inherent competency and therefore, cited authorities are not the decision/decree will be void applicable to the question. only when there was a consequent Accordingly, the Panel is failure of the justice and the of the view that the official defendant was prompt enough to answer key is correct. have raised the objection in the trial court at the earliest possible opportunity.
CWP Nos. 9856 & 9857 of 2023 Filed application for impleadment.
CWP No. 5308 of 202314 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 15 That the Petitioner claims that the correct Answer of Question No.37 is answer "C" and the reasoning of which is duly Supported by Law is stated as below:
Jurisdiction of Court is broadly of 3 types:
Subject matter Jurisdiction: If court doesn't have subject matter jurisdiction, then the decision/decree is void and cannot operate as res judicata.
Territorial Jurisdiction: If court does not have territorial jurisdiction, then the decision/decree is not void and can still operate as res judicata if there was no consequent failure of justice.
Pecuniary Jurisdiction: If Court does not have pecuniary jurisdiction, then also decision/decree is not void and can still operate as res judicata if there was no consequent failure of justice. That the Petitioner claims that the perusal of the above said provision makes it clear that in the cases of lack of Territorial and pecuniary jurisdiction, it is more of an administrative and technical defect and it does not hit and the roots of the inherent competency and therefore the decision/decree will be void only when there was a consequent failure of the justice and the defendant was prompt enough to have raised the objection in the trial court at the earliest possible opportunity. Therefore, the answer "C" to the question no.37 of Code A would be the correct and the right answer and the same ought to be changed by the respondents despite submitting the objections.
Case relied upon: Mantoo Sarkar v. Oriental Insurance Co. Ltd.(2008) CWP No. 7983 of 2023 That the Petitioner claims that the Correct Answer of Question No.37 is answer "C".
The question did not tell as to which type of jurisdiction the Court lacked.
Jurisdiction of Court is broadly of 3 types:
i. Subject matter Jurisdiction:
ii. Territorial Jurisdiction
iii. Pecuniary Jurisdiction:
That if question had specifically used the word subject matter jurisdiction instead of jurisdiction, then option "B" would have been correct; but in case of non-mention of the kind of jurisdiction the Court lacked, a decision on finding given by Court without jurisdiction can operate as res judicata under certain circumstances only.
In case of lack of territorial /
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Relied upon:
1. Mantoo Sarkar v. Oriental Insurance Co. Ltd.
5. Question Number 64: CWP No. 4697 of 2023 D Public documents are Deleted Q) Which of the Filed application for impleadment. defined in section 74 of the following is not a Indian Evident Act 1872.
public document? CWP No. 9857 of 2023 Broadly it includes two A) An order Filed application for impleadment. categories. In the first issuing a search category documents warrant. CWP No. 5308 of 2023 forming the acts or records B) A crop cutting That the Petitioner claims that the of the acts of the sovereign report by a correct Answer of Question No.64 authorities, official bodies, Collector as per proposed answer key is tribunals and public C) Order of answer "D" and the Petitioner had officers, legislative, competent also marked the Answer "D" and the judicial and executive of authority fixing respondents had deleted the said any part of India or of the prices of question from the final answer key Common Wealth or of a commodities without any basis. Foreign country are D) Plaint or Relied upon Section 74 of evidence included. In the second written statement act: category public records in a suit 74: The following documents are kept in any state of private public documents.- documents are included.
(1) documents forming the acts or There has been a cleavage
records of the acts of opinion among the
(i) of the sovereign authority, courts regarding the
(ii) of official bodies and Tribunals, inclusion of plaints or
and written statements in a suit
(iii) of public officers, legislative, in the category of public
judicial and executive, (of any part documents. The
of India or of the Commonwealth), preponderance of authority
or of a foreign country; is that these are not public
(2) public records kept in any State documents as defined in
of private documents." section 74 of the Evidence
Act. The matter has also
Plaint or Written Statement is the been considered by the law
best option out of the four given commission of India in its
options. Further, it has been held by Sixty-Ninth Report on the
the Hon'ble Court that the Plaint or Indian Evidence Act, 1872
Written Statement is not a public (May, 1977) in para 34.16
document. at page 457. After noticing the difference of opinion CWP No.5323 of 2023 among the courts, it Petitioner claims that the correct recommended the insertion Answer of Question No. 64 as per of explanation at the end of proposed answer key is Answer "D" the section to the following and the Petitioner had also marked effect:
the Answer "D" and the Respondents had deleted the said "Explanation-Records question from the final answer key forming part of a case without any basis. leading to a judgment of a He relied upon cases: court or an order of a i.) Gulab Chand and Ors. v. public officer, if the order Sheokaran Lal Seth and Ors. is pronounced judicially, are themselves public Also, the Madhya Pradesh documents." Subordinate judiciary exam 2011 Later the Law Commission had the same question i.e. question of India in its 185th Report no. 98, wherein option 'D' was the on Review of the Indian correct answer. Evidence Act, 1872 (March, 2003) at page 884 CWP No. 5971 of 2023 added with the 69th report That the Petitioner Claims that the but proposed modified correct Answer of Question No.64 explanation to be added in as per proposed answer key is clause (1) of section 74 answer "D" and the Petitioner had which reads at under: also marked the Answer "D" and the "Explanation- Records respondents had deleted the said forming part of a case question from the final answer key leading to a judgment of a without any basis. court or an order of a Cases relied upon: public officer, if the order Pyare Lal vs Meher Singh and other is pronounced judicially, 16 of 51 ::: Downloaded on - 03-06-2023 03:42:33 :::
Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 17 (C.R. No. 7388 of 2010 Date of shall be deemed to be Decision 15.12.2010) publicdocuments."
On consideration of the Also, the Madhya Pradesh reports of the Law Subordinate judiciary exam 2011 Commission, it is inferable had the same question i.e. question that pleadings in a suit do no. 98, wherein option 'D' was the not in terms fall within the correct answer. ambit of Section 74 Evidence Act and CWP No. 10483 of 2023 accordingly, it The Petitioner claims that the recommended the insertion correct Answer of Question No. 64 of deeming provision by as per proposed answer key is adding explanation to Answer "D" and the Petitioner had Section 74. also marked the Answer "D" and the Even the commentators on Respondents had deleted the said the Law of Evidence have question from the final answer key noticed the above conflict without any basis. of opinion and states that Relied on: Bawa Singh v. Harnam pleadings are not public Singh (2009) 5 RCR Civil Para 9 documents under Section 74. CWP No. 11237 of 2023 A single judge bench of Question is wrongly deleted. Punjab and Haryana High Court in the case of Bawa CWP No. 9803 of 2023. Singh etc. vs. S. Harnam The Petitioner claims that the Singh etc., In RSA No. correct Answer of Question No. 64 757-1986, DoD as per proposed answer key is 27.05.2008, has also held Answer "D" and the Petitioner had pleadings of a party does also marked the Answer "D" and the not fall in any of the public Respondents had deleted the said documents as specified question from the final answer key under Section 74 of the without any basis. Act. However, without CWP No. 11312 of 2023 reference to the aforesaid Petitioner claims that the correct decision, a contrary view Answer of Question No. 64 as per has been expressed by proposed answer key is Answer "D" another single bench in the and the Petitioner had also marked case of Pyare Lal. In this the Answer "D" and the case, the Learned Judge Respondents had deleted the said has also noticed the question from the final answer key divergent views on the without any basis. character of pleadings in a suit as noticed in the commentary of Ratanlal's Law of Evidence Act, twentieth Edition 2002.
It further transpires from the judgment that principal reliance was placed on the case of Narasimha Rama Rao V. Venkataramanayya AIR 1940Mad768. Reading of the aforesaid judgment indicates that the question considered by the full bench was whether an income tax return or statement filed in support of it, is a public document and answered the same in the affirmative. In para 9, it is recorded as follows:
"9. As the learned Judges who have made the reference have pointed out, a plaint or a written statement has always been regarded by this Court as forming part of the record of a case and a public document of which an interested party may obtain a certified copy. If the 17 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 18 argument, that an Income Tax return is not a public document, but that the order passed thereon is, were carried to its logical conclusion, it would mean that no part of the record of a civil suit could be regarded as constituting a public document except evidence recorded by the Court or summonses or notices or interlocutory orders or the judgment in the case. In BhagainMeghBaneeKoer v. GoorooPetahad Singh (1876) 25 W.B. 68 Garth, C.J. and Birch J. expressly held that a petition which was the subject-matter of an order passed was part of the record in the suit, and I do not think that this can reasonably be doubted.
In my judgment, it would be putting an unwarranted restriction on the words "documents forming the acts or re. cords of the acts" to say that they should be confined to those parts of an Income Tax record which the Income Tax Officer has himself prepared and to exclude documents which he has himself called for or which have been admitted to the record for the purposes of the assessment. I consider that the record of an Income Tax case must be regarded as the record of the acts of the Income Tax Officer in making his assessment and therefore that any document properly on the record is just as much a public document as the final order of assessment. For these reasons I would answer the question propounded in the affirmative. I would make the costs of this reference costs in the cause".
The aforesaid observation was made only in the context of considering the question as to whether Income tax return is a public document or not.
In the light of aforesaid discussion though the panel is of the view that the pleadings (plaint and written statement) are not considered to be public documents under section 74 of Indian Evidence Act, and holds that the official answer key to be correct.
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6. Question No. 67 CWP No. 6497 of 2023 The question pertains to Q) Testimony of a Petitioner claims that Answer given C the law of evidence. The C witness to the under the answer key is C, whereas Indian Evidence Act, 1872 existence or non- correct answer of this quest is includes oral and existence of the 'Option D' and the reasoning of documentary evidence. fact or the facts in which is duly supported by law That Later, electronic record issue is: Section 60 of The Indian Evidence produced for the inspection A) Hearsay Act, 1872 is an extension of Section of the Court has also been evidence 59of the Act, hence every oral included. Sir James B) Original evidence needs to be direct. So the Stephen, the drafter of the evidence appropriate answer seems to be Indian Evidence Act, 1872, C) Oral evidence 'Option-D'. states that the term D) Direct "Evidence" is used in the evidence CWP No. 11695 of 2023 Act in reference to words That the Petitioner that correct uttered and things answer of this question is 'Option exhibited in Court, which D'. refers to oral and It is submitted that the petitioner documentary evidence as herein had answered option 'D'. As defined in the Section 3 of per the final answer key, the correct the Act. Sections 59 and 60 answer to the said question is option declare that all facts except 'C'. It is submitted that it is well content of documents may settled proposition of law that be proved by oral evidence testimony of a witness is enough to which must in all cases be convict or render a person not direct. The term "direct guilty. It is submitted that if evidence" has not been testimony of a witness is enough to used in the same sense in convict a person for a particular which the term has been offence, it has to be assumed that used under the English the said testimony is direct law. Under the Indian evidence. Though the testimony is Evidence Act it has been given orally it does not under any used in contradistinction to circumstances mean that the same hearsay evidence. The Act can be treated only as oral evidence. impliedly enacts the rule Once a particular statement or against the hearsay in testimony is enough to convict a Section 60 which requires person or acquit him for a particular evidence to be given by a offence, it has to be understood that person who has perceived the same is direct evidence. It is the fact with his own submitted that the answer to the senses. Reference may be aforesaid question can either be made to the 69th report of option 'C' or option 'D' and the Law Commission of therefore, action of the respondents India on Indian Evidence whereby they have chosen option 'C' Act, 1872 (May 1977). as the correct answer, is unjust and A testimony of a witness in unfair. a Court as to the existence and non-existence of a fact is oral evidence. The second deduction of the rule that it must be direct which is stipulated in Section 60 of the Act has numerous exceptions laid down in the Act. However, the question posed, relates to the definition of "Evidence" in Section 3 of the Act and an oral testimony of a witness in Court is oral evidence.
The objectors have misconstrued the frame of the question and by convoluted reasoning are vying for the wrong option.
The panel has gone through the judgment in 19 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 20 the case of Neeraj Dutta (supra) and found it to be not dealing with oral evidence or as to what the oral testimony of a witness is described/called. It, in the fact situation obtainable therein, held that the passing of money should be proved by direct evidence. It was rendered under the Prevention of Corruption Act, 1988.
The other judgments, as noticed above, relied upon by the objectors are on a different point. In both the judgments, the Court reiterated the rule laid down in Section 60 of the Act.
Same is the case in State of Jharkhand versus Shailendra Kumar Rai @ Pandev Raisupra) as it nowhere mentions that the testimony of a witness to the existence or non-
existence of the fact or the facts in issue is "direct evidence". It refers to direct evidence in para 37 while referring to Section 32 of the Evidence Act, 1872. It also refers to oral evidence in para 34 and 35 of the judgment emphasizing that the oral evidence must be direct.
So far as the authority Chauna Orang versus The State of Assam (supra) is concerned, the same mentions at one place only i.e. in para no.1 that the direct evidence is the testimony of a witness to the existence or non-
existence of the fact or the facts in issue, but does not define the same to the exclusion of Section 60 of the Evidence Act, 1872.
Primarily, it was in comparison to the circumstantial evidence which this judgment has been discussing so as to decide the particular matter in question.
Thus, the Panel is of the view that the official answer key is correct.
7. Question No. 69: CWP No. 6497 of 2023 Sections 148 to 152 of Q) Which one of The Petitioner has claimed that the D Evidence Act, 1872 deal D the following correct answer of Question No.69 is with categories/types of questions may be answer "A" and the reasoning of questions which the Court forbidden by the which is stated as below: may forbid from being Court: Section 151: Indecent and asked to a witness.
1. Indecent 2. scandalous questions:- The Court Sections 149-150 require Scandalous 3. may forbid any questions or that the question cannot be Intended to insult inquiries which it regards as asked without reasonable
4. To test veracity indecent or scandalous, although grounds. Section 151 states A) 1 and 2 such questions or inquiries may a general rule that court 20 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 21 B) 2 and 3 have some bearing on the questions will not allow indecent and C) 3 and 4 before the court, unless they relate scandalous questions D) 1, 2 and 3 to facts in issue, or to matters except in two situations i.e. necessary to be known in order to where they relate to facts determine whether or not the facts in issue; and where they in issue existed. relates to necessary matters Section 152: Questions intended to to be known in order to insult or annoy: - The Court shall determine whether or not forbid any question which appears the facts in issue existed. It to it to be intended to insult or is for this reason that the annoy, or which though proper in provision employs the itself, appears to the court word 'may'. On the other needlessly offensive in form. hand Section 152 states The Petitioner claims that the that Court shall not allow perusal of the above said provisions any question which is makes it clear that in the case where asked only to insult or the questions are with regard to annoy the witness. indecent or scandalous in the said The thrust of the question case since the word "May" has been is to find out the used by the legislature the court has forbiddable questions out the discretionary power to forbid the of the given options. The said questions. However, in the case objectors without where the said case since the word understanding the sweep of "Shall" has been used the court is the question adopted a duty bound to forbid the said pedantic approach and thus question. committed error in making The bare language of Sections 151 correct choice from the and 152 is very clear. The Petitioner available options. claims that there is no ambiguity in Thus, the Panel is of the the question asked by the examiner view that the official and the answer which was answer key is correct. mentioned in the proposed answer key as well as in the final answer key i.e. Answer "D" is totally wrong and in contrary in Sections 151 and 152 of the India Evidence Act and the correct answer of the Question no.69 is Answer "A".
CWP No. 4630 of 2023The Petitioner has claimed that the correct answer of Question No.69 is answer "A" and the reasoning of which is stated as below:
Section 151: Indecent and scandalous questions:- The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.
Section 152: Questions intended to insult or annoy: - The Court shall forbid any question which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form.
The Petitioner claims that the perusal of the above said provisions makes it clear that in the case where the questions are with regard to indecent or scandalous in the said case since the word "May" has been used by the legislature the court has the discretionary power to forbid the said questions. However, in the case where the said case since the word "Shall" has been used the court is 21 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 22 duty bound to forbid the said question.
The bare language of Sections 151 and 152 is very clear. The Petitioner claims that there is no ambiguity in the question asked by the examiner and the answer which was mentioned in the proposed answer key as well as in the final answer key i.e. Answer "D" is totally wrong and in contrary in Sections 151 and 152 of the India Evidence Act and the correct answer of the Question no.69 is Answer "A".
CWP No. 5323 of 2023.
The Petitioner has claimed that the correct answer of Question No.69 is answer "A" and the reasoning of which is stated as below:
Section 151: Indecent and scandalous questions:- The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.
Section 152: Questions intended to insult or annoy: - The Court shall forbid any question which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form.
The Petitioner claims that the perusal of the above said provisions makes it clearthat in the case where the questions are with regard to indecent or scandalous in the said case since the word "May" has been used by the legislature the court has the discretionary power to forbid the said questions. However, in the case where the said case since the word "Shall" has been used the court is duty bound to forbid the said question.
The bare language of Sections 151 and 152 is very clear. The Petitioner claims that there is no ambiguity in the question asked by the examiner and the answer which was mentioned in the proposed answer key as well as in the final answer key i.e. Answer "D" is totally wrong and in contrary in Sections 151 and 152 of the India Evidence Act and the correct answer of the Question no.69 is Answer "A".
CWP No. 9256 of 2023The Petitioner has claimed that the correct answer of Question No.69 is answer "A" and the reasoning of which is stated as below:
29. Section 151: Indecent and scandalous questions: The Court may forbid any questions or inquiries which it regards as 22 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 23 indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.CWP No. 11926 of 2023
The Petitioner has claimed that the correct answer of Question No.69 is answer "A" and the reasoning of which is stated as below:
Section 151: Indecent and scandalous questions:- The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.
Section 152: Questions intended to insult or annoy: - The Court shall forbid any question which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form.
The Petitioner claims that the perusal of the above said provisions makes it clear that in the case where the questions are with regard to indecent or scandalous in the said case since the word "May" has been used by the legislature the court has the discretionary power to forbid the said questions. However, in the case where the said case since the word "Shall" has been used the court is duty bound to forbid the said question.
The bare language of Sections 151 and 152 is very clear. The Petitioner claims that there is no ambiguity in the question asked by the examiner and the answer which was mentioned in the proposed answer key as well as in the final answer key i.e. Answer "D" is totally wrong and in contrary in Sections 151 and 152 of the India Evidence Act and the correct answer of the Question no.69 is Answer "A".
8. Question No. 73: CWP No. 4697 of 2023. The sources cited by the Q) The rule of That the Petitioner claims that the D objectors/candidates refer D "No one can blow correct answer of Question No.73 is to sweeping statements hot and cold in the answer "B" and the reasoning of made without drawing on same breath" which is duly Supported by Law is the origin of the relates to: stated as below: doctrines/principles stated A) Doctrine of lis The Doctrine of feeding the grant by in the question/proposition. pendens. estoppel, Section 43 of Transfer of The panel has gone B) Doctrine of Property Act, 1882 has embodied through the aforesaid feeding the grant the general principle of estoppel. sources and is of the view by estoppel Doctrine of feeding the grant by that certain judgments C) Doctrine of estoppel is based on the principles relied upon reinforces the holding out of equity, justice and good official answer key. There D) Doctrine of conscience. The Law incorporated is no need to individually election in Section 43 is based upon refer to each source to common law doctrine of Estoppel avoid prolixity. In nut 23 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 24 by deed and the equitable principle shell, it has been held that that if a person promises more than 'Doctrine of feeding the he can perform, then he must fulfil grant by estoppels' and the promise when he gets the ability 'Doctrine of holding out' to do so. The Equity does not permit branch out of the general him to deny his earlier statement. In principle of estoppel. other words, he cannot blow both It is submitted that hot & cold in the same breath. "Doctrine of feeding the According to Section 43 of Transfer grant by estoppels" is of Property Act, 1882 if a based on the equitable seller/transferor for value or doctrine that a man who consideration received, transfers a has promised more than he property he does not own but can perform must make subsequently he acquires the title to good his contract when he that property, which he transferred, acquires the power of then the purchaser/transferee can performance. Reference enforce the transfer against him. may be made to BB Mitra This is the essence of the doctrine of & Sen Gupta on The feeding the grant by estoppel. Thus Transfer of Property Act, the transferor will not be allowed to 1882, 19th Edition (2011), deny the false representation made Kamal Law House, by him earlier which was acted Kolkata, p.283.
upon by the transferee i.e., the The doctrine of holding out
transferor will not be allowed to is based upon rule of
blow hot and cold in the same estoppel. Reference may be
breath. made to CL Gupta, Law of
Whereas on the other hand, in the Partnership including
case of The doctrine of election: Limited Liability
Doctrine of election is stated in Partnership, 4 Edition
transfer of property act 1882 in 2010, page 1.297.
section 35. Election means a choice The doctrine of lis pendens
between two alternative or is also based on a different
conflicting rights. Granting two rule i.e. maxim pendent lite
rights in such a way that one is nihil innoveture i.e.
higher than the other, you can pending litigation nothing
choose either of them. You cannot new should be introduced.
have both. The applicant cannot use Reference may be made to
both, the recipient must choose BB Mitra & Sen Gupta on
between two inconsistencies or The Transfer of Property
alternative rights. Basically, it Act, 1882, 19th Edition
means that the person taking the (2011), Kamal Law
benefit should also bear the burden House, Kolkata, p.344.
i.e. where a person takes some The foundation of doctrine
benefit under a deed or instrument, of election is that a person
he must also bear its burden. It is an taking a benefit under an
important part of the Transfer of instrument must also bear
Property Act 1882 to resolve the burden. The principle is
property conflicts among people. in fact a branch of general
Example: A promises to give B, 50 rules that no one can
Lakh but only on one condition that approbate and reprobate
he will sell his house to C, now B i.e. No one can blow hot
here has to make the election on and cold in the same
what to do? If he takes A's offer he breath. Reference may be
will have to give his house to C. On made to Law Commission
the other hand, if he doesn't, he of India, 70th Report, The
won't get 50 Lakh also hence he has Transfer of Property Act,
to make an election on what to 1882 (August, 1977),
choose. The Doctrine of Election is p.227 and BB Mitra & Sen
explained by Maitland in following Gupta on The Transfer of
words: "He who accepts a benefit Property Act, 1882, 19th
under a deed or a will or other Edition (2011), Kamal
instrument must: Law House, Kolkata,
(i) Adopt the whole contents p.224.
of that instrument. Accordingly, the panel is
(ii) confirm to all its of the view that in the
provisions. given options, option D is
(iii) Renounce all rights that are the most
inconsistent with it. appropriate answer.
Thus, the official answer
Reasoning: A bare reading of the key is correct.
above two doctrines is sufficient to support the view that the most appropriate & correct option considering the wordings of this 24 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 25 question is Option B and not Option D. CWP No. 6497 of 2023.
Petitioner Claims that the correct Answer of Question No.73 is answer "B".
Cases relied upon:
1. Union of India v. Murugesan 2021 (SC) Civil Appeal no. 2491- 2492/2021
2. State of Punjab v. Dhanjeet Singh Sandhu (2014) 15 SCC 14
3. Joint Action Committee of Airline Pilots Association of India v. DG of Civil Aviation 2011 (5) SCC 435 CWP No. 5308 of 2023.
The Petitioner has Claimed that both Options "B" and "D" are correct, as both the doctrines are the correct options. They have claimed that the candidate opting for one option and not for the other cannot be denied benefit of marks.
Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. The law incorporated in Section 43 is based upon common law doctrine of estoppel by deed. The equity does not permit him to deny his earlier statement thus the transferor will not be allowed to deny the false representations made by him earlier which was acted upon by the transferee i.e. the transferor will not be allowed to blow hot and cold in the same breath.
The doctrine of election is stated in Section 35 of the Transfer of Property Act. Election means the choice between 2 alternatives or conflicting rights. The recipient must choose between two inconsistencies or alternative rights. This doctrine is also based on the principle of estoppel in the sense that it prevents a person from taking 2 inconsistent positions in the property dispute. His earlier choice constitutes an election and he is estopped from making a contradictory claim.
CWP No. 5323 of 2023.
The Petitioner claims that the correct Answer of Question No.73 is answer "B" and the reasoning of which is duly supported by law is stated as below:
That the Doctrine of feeding the grant by estoppel, Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. Doctrine of feeding the grant by estoppel is based on the principles of equity, justice and good conscience. The Law incorporated in Section 43 is based 25 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 26 upon common law doctrine of Estoppel by deed and the equitable principle that if a person promises more than he can perform, then he must fulfil the promise when he gets the ability to do so. The Equity does not permit him to deny his earlier statement. In other words, he cannot blow both hot & cold in the same breath.
That according to Section 43 of Transfer of Property Act, 1882 if a seller/transferor for value or consideration received, transfers a property he does not own but subsequently he acquires the title to that property, which he transferred, then the purchaser/transferee can enforce the transfer against him. This is the essence of the doctrine of feeding the grant by estoppel. Thus the transferor will not be allowed to deny the false representation made by him earlier which was acted upon by the transferee i.e., the transferor will not be allowed to blow hot and cold in the same breath.
That whereas on the other hand, in the case of the doctrine of election:
Doctrine of election is stated in Transfer of Property Act 1882 in Section 35. Election means a choice between two alternative or conflicting rights. Granting two rights in such a way that one is higher than the other, you can choose either of them. You cannot have both. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Basically, it means that the person taking the benefit should also bear the burden i.e. where a person takes some benefit under a deed or instrument, he must also bear its burden. It is an important part of the Transfer of Property Act 1882 to resolve property conflicts among people. Example: A promises to give B, 50 Lakh but only on one condition that he will sell his house to C, now B here has to make the election on what to do? If he takes A's offer he will have to give his house to C. On the other hand, if he doesn't, he won't get 50lakh also hence he has to make an election on what to choose. The Doctrine of Election is explained by Maitland in following words: "He who accepts a benefit under a deed or a will or other instrument must:
(i) Adopt the whole contents
of that instrument.
(ii) confirm to all its
provisions.
(iii) Renounce all rights that are
inconsistent with it.
Reasoning: A bare reading of the
above two doctrines is sufficient to support the view that the most appropriate & correct option 26 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 27 considering the wordings of this question is Option B and not Option D. Case relied upon: RSIDIC v.
Diamond and Gem Development Corporation.
CWP No. 6493 of 2023.
That the Petitioner claims that the correct answer of Question No.73 is answer "B" and the reasoning of which is duly Supported by Law is stated as below:
The Doctrine of feeding the grant by estoppel, Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. Doctrine of feeding the grant by estoppel is based on the principles of equity, justice and good conscience. The Law incorporated in Section 43 is based upon common law doctrine of Estoppel by deed and the equitable principle that if a person promises more than he can perform, then he must fulfil the promise when he gets the ability to do so. The Equity does not permit him to deny his earlier statement. In other words, he cannot blow both hot & cold in the same breath.
According to Section 43 of Transfer of Property Act, 1882 if a seller/transferor for value or consideration received, transfers a property he does not own but subsequently he acquires the title to that property, which he transferred, then the purchaser/transferee can enforce the transfer against him. This is the essence of the doctrine of feeding the grant by estoppel. Thus the transferor will not be allowed to deny the false representation made by him earlier which was acted upon by the transferee i.e., the transferor will not be allowed to blow hot and cold in the same breath.
Whereas on the other hand, in the case of The doctrine of election:
Doctrine of election is stated in transfer of property act 1882 in section 35. Election means a choice between two alternative or conflicting rights. Granting two rights in such a way that one is higher than the other, you can choose either of them. You cannot have both. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Basically, it means that the person taking the benefit should also bear the burden i.e. where a person takes some benefit under a deed or instrument, he must also bear its burden. It is an important part of the Transfer of Property Act 1882 to resolve property conflicts among people. Example: A promises to give B, 50 Lakh but only on one condition that 27 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 28 he will sell his house to C, now B here has to make the election on what to do? If he takes A's offer he will have to give his house to C. On the other hand, if he doesn't, he won't get 50 Lakh also hence he has to make an election on what to choose. The Doctrine of Election is explained by Maitland in following words: "He who accepts a benefit under a deed or a will or other instrument must:
(i) Adopt the whole contents
of that instrument.
(ii) confirm to all its
provisions.
(iii) Renounce all rights that are
inconsistent with it.
Reasoning: A bare reading of the
above two doctrines is sufficient to support the view that the most appropriate & correct option considering the wordings of this question is Option B and not Option D. CWP No. 9028 of 2023.
28. The Petitioner claims that the correct Answer of Question No.73 is answer "B" and the reasoning of which is duly supported by law is stated as below:
That the Doctrine of feeding the grant by estoppel, Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. Doctrine of feeding the grant by estoppel is based on the principles of equity, justice and good conscience. The Law incorporated in Section 43 is based upon common law doctrine of Estoppel by deed and the equitable principle that if a person promises more than he can perform, then he must fulfil the promise when he gets the ability to do so. The Equity does not permit him to deny his earlier statement. In other words, he cannot blow both hot & cold in the same breath.
That according to Section 43 of Transfer of Property Act, 1882 if a seller/transferor for value or consideration received, transfers a property he does not own but subsequently he acquires the title to that property, which he transferred, then the purchaser/transferee can enforce the transfer against him. This is the essence of the doctrine of feeding the grant by estoppel. Thus the transferor will not be allowed to deny the false representation made by him earlier which was acted upon by the transferee i.e., the transferor will not be allowed to blow hot and cold in the same breath.
That whereas on the other hand, in the case of the doctrine of election:
Doctrine of election is stated in Transfer of Property Act 1882 in 28 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 29 Section 35. Election means a choice between two alternative or conflicting rights. Granting two rights in such a way that one is higher than the other, you can choose either of them. You cannot have both. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Basically, it means that the person taking the benefit should also bear the burden i.e. where a person takes some benefit under a deed or instrument, he must also bear its burden. It is an important part of the Transfer of Property Act 1882 to resolve property conflicts among people.
Example: A promises to give B, 50 Lakh but only on one condition that he will sell his house to C, now B here has to make the election on what to do? If he takes A's offer he will have to give his house to C. On the other hand, if he doesn't, he won't get 50lakh also hence he has to make an election on what to choose. The Doctrine of Election is explained by Maitland in following words: "He who accepts a benefit under a deed or a will or other instrument must:
(i) Adopt the whole contents
of that instrument.
(ii) confirm to all its
provisions.
(iii) Renounce all rights that are
inconsistent with it.
Reasoning: A bare reading of the
above two doctrines is sufficient to support the view that the most appropriate & correct option considering the wordings of this question is Option B and not Option D. CWP No. 10483 of 2023 The Petitioner claims that both B and D are correct because both are based on doctrine of estoppels, especially when both are the kind of estoppels and the principle of blowing hot and cold in the same breath as a facet of rule of estoppel.
CWP No. 11237 of 2023.
Therefore, the Petitioner claims that answer "D" to the question no.1 of Code A would be the correct and the right answer and there was no need or any necessity to change the Answer to option C and subsequently, delete the same without any sufficient cause.
Contends that this claim is supported by Notification issued by Ministry of Law and Justice (Legislative Department) dated 02.04.2013, the Indian Penal Code was amended by virtue of the Criminal Law Amendment Act 2013.The Petitioner further states that the provisions of the 29 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 30 abovementioned Notification make it clear that Section 166A, 166B, 354C have been inserted in the Indian Penal Code, 1860 by the Criminal Law Amendment 2013 and Sections 376A, 376B have been substituted not inserted in the IPC 1860.
CWP No. 9803 of 2023.
Petitioner Claims that the correct Answer of Question No.73 is answer "B".
Petitioner has also relied on Judgements of the Hon'ble Supreme Court while dealing with the principle of approbate and reprobate in the matter titled as Union of India and others Vs. Murugesan etc. passed in Civil Appeal No.2491- 2492 of 2021.
Also, relied upon
1. State of Punjab v. Dhanjit Singh Sandhu 2014 15 SCC 14
2. Airline Pilots Association of India v. DG of Civil Aviation 2011 5 SCC 435 CWP No. 11926 of 2023.
Petitioner Claims that the correct Answer of Question No.73 is answer "B".
Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. Doctrine of feeding the grant by estoppel is based on the principles of equity, justice and good conscience. The Law incorporated in Sec 43 is based upon common law doctrine of Estoppel by deed and the equitable principle that if a person promises more than he can perform, then he must fulfil the promise when he gets the ability to do so. The Equity does not permit him to deny his earlier statement. In other words, he cannot blow both hot & cold in the same breath.
Petitioner relies on: Desh Pande V. Maruti Balram Habbait CWP No. 11312 of 2023.
Petitioner Claims that the correct Answer of Question No.73 is answer "B".
The Doctrine of feeding the grant by estoppel, Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. Doctrine of feeding the grant by estoppel is based on the principles of equity, justice and good conscience. The Law incorporated in Sec 43 is based upon common law doctrine of Estoppel by deed and the equitable principle that if a person promises more than he can perform, then he must fulfil the promise when he gets the ability to do so. The Equity does not permit him to deny his earlier statement. In 30 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 31 other words, he cannot blow both hot & cold in the same breath.
According to Section 43 of Transfer of Property Act, 1882 if a seller/transferor for value or consideration received, transfers a property he does not own but subsequently he acquires the title to that property, which he transferred, then the purchaser/transferee can enforce the transfer against him. This is the essence of the doctrine of feeding the grant by estoppel. Thus the transferor will not be allowed to deny the false representation made by him earlier which was acted upon by the transferee i.e., the transferor will not be allowed to blow hot and cold in the same breath.
Whereas on the other hand, in the case of The doctrine of election:
Doctrine of election is stated in Transfer of Property Act 1882 in Section 35. Election means a choice between two alternative or conflicting rights. Granting two rights in such a way that one is higher than the other, you can choose either of them. You cannot have both. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Basically it means that the person taking the benefit should also bear the burden i.e. where a person takes some benefit under a deed or instrument, he must also bear its burden. It is an important part of the Transfer of Property Act 1882 to resolve property conflicts among people. Example: A promises to give B, 50 Lakh but only on one condition that he will sell his house to C, now B here has to make the election on what to do? If he takes A's offer he will have to give his house to C. On the other hand, if he doesn't, he won't get 50lakh also hence he has to make an election on what to choose. The Doctrine of Election is explained by Maitland in following words: "He who accepts a benefit under a deed or a will or other instrument must:
(i) Adopt the whole contents
of that instrument.
(ii) confirm to all its
provisions.
(iii) Renounce all rights that are
inconsistent with it.
Reasoning: A bare reading of the
above two doctrines is sufficient to support the view that the most appropriate & correct option considering the wordings of this question is Option B and not Option D. CWP No. 7983 of 2023.
Petitioner Claims that the correct Answer of Question No.73 is
31 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 32 answer "B" & "D", both are correct. So therefore, candidate opting for either of the options cannot be denied marks.
The Doctrine of feeding the grant by estoppel, Section 43 of Transfer of Property Act, 1882 has embodied the general principle of estoppel. Doctrine of feeding the grant by estoppel is based on the principles of equity, justice and good conscience. The Law incorporated in Sec 43 is based upon common law doctrine of Estoppel by deed and the equitable principle that if a person promises more than he can perform, then he must fulfil the promise when he gets the ability to do so. The Equity does not permit him to deny his earlier statement. In other words, he cannot blow both hot & cold in the same breath.
According to Section 43 of Transfer of Property Act, 1882 if a seller/transferor for value or consideration received, transfers a property he does not own but subsequently he acquires the title to that property, which he transferred, then the purchaser/transferee can enforce the transfer against him. This is the essence of the doctrine of feeding the grant by estoppel. Thus the transferor will not be allowed to deny the false representation made by him earlier which was acted upon by the transferee i.e., the transferor will not be allowed to blow hot and cold in the same breath.
Whereas on the other hand, in the case of The doctrine of election:
Doctrine of election is stated in Transfer of Property Act 1882 in Section 35. Election means a choice between two alternative or conflicting rights. Granting two rights in such a way that one is higher than the other, you can choose either of them. You cannot have both. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Basically it means that the person taking the benefit should also bear the burden i.e. where a person takes some benefit under a deed or instrument, he must also bear its burden. It is an important part of the Transfer of Property Act 1882 to resolve property conflicts among people.
CWP No. 8366 of 2023.
That the Petitioner Claims that the correct Answer of Question No.73 is answer "B".
Petitioner has relied on Judgements of the Hon'ble Supreme Court while dealing with the principle of approbate and reprobate in the matter titled as Union of India and others Vs. Murugesan etc. passed in Civil Appeal No.2491-2492 of
32 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 33 2021.
The Hon'ble Apex Court has held that the phrase 'one cannot blow hot and cold' is also a specie of estoppel dealing with the conduct of a party. It is submitted that from the aforesaid observations of the Hon'ble Supreme Court, it is evident that there can be two answers to Question No.30 & 125. Further, the Hon'ble Supreme Court in the matter titled as The Rajasthan State Industrial Development and Investment Corporation &Anr.
Versus Diamond and Gem Development Corporation Ltd.
&Anr. has also held that the Doctrine of Election is based on the rule of estoppel.
9. Question No. 85 CWP No. 5323 of 2023. Section 105 of the Transfer Q) In lease of That the Petitioner Claims that the A of Property Act, 1882 A immovable correct Answer as per key is Option defines lease. It, inter alia, property, what is (A) but since the Options (a), (b), provides that a lease of transferred? (c) all are correct, therefore, the immovable property is a
(a) Right to enjoy correct option should be Option (D) transfer of a right to enjoy the property instead of Option (A). such property. The right
(b) Interest in the Case relied upon: which is sought to be property i) Hindon Forge Pvt. Ltd. v. State of transferred by this
(c) Mesne profits UP category/specie of transfer
(d) All of the ii) Associated Hotels Of India Ltd vs of property i.e. lease of above. R. N. Kapoor 1959 AIR 1262 immovable property, is a right to enjoy the property.
CWP No. 5971 of 2023. No doubt in the context of That the Petitioner Claims that the Section 5 of the Act ibid, correct Answer as per key is Option the term 'transfer' is used in (A) but since the Options (a), (b), its widest and most generic
(c) all are correct, therefore, the sense, comprehending correct option should be Option (D) within its scope all species instead of Option (A). of contract which pass real rights or interest as they Section 105 of Transfer of Property are called in the Act, in Act refers to interest in property property from one person along with right to enjoy. to another. Right to enjoy Section 108 of ransfer of Property the property is also an Act, clause (j) and (k) further state interest in the property.
transfer of interest in property. But, the thrust of the
C question is to find out the
Cases relied upon: exact right or interest
1) Smt. Rajbir Kaur and Anr. v. S. which is transferred in
Chokesini and Co. 1988 AIR 1845 lease of immovable
2) Associated Hotels Of India Ltd property. In the given set
vs R. N. Kapoor 1959 AIR 1262 of options the most
3) B.M. Lall v. Dunlop Rubber Co. appropriate answer is
1968 (1) SCR 23 option A.
4) ICICI v. State of Maharashtra Thus, the panel is of the
and Ors. view that the official
answer key is correct
CWP No. 11312 of 2023.
The Petitioner submits that Question No.85 & 88 are contrary to each other if the answer to question 85 is believed to be option A, as reflected in the answer key, it would mean that in lease of an immovable property only right to enjoy the property is transferred and in lease of an immovable property no interest is created in the property. Further, if the answer to Question 88 is believed to the option C, as reflected in the answer key, it would mean that no interest is created in the property in case of a license, 33 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 34 however, in case of a lease interest is created in the property. The Petitioner submits that a harmonious reading of the two questions shows that they are contrary to each other and hence ought to be corrected and deleted.
10. Question No.88 CWP No. 11312 of 2023. The word/term "interest"
In which of the C used in the Transfer of C following The Petitioner submits that Question Property Act refers to the transactions, no No.85 & 88 are contrary to each real rights in the property. interest in the other if the answer to question 85 is In respect of property is believed to be option A, as reflected transaction/transfer of created? in the answer key, it would mean "lease, mortgage, tenancy A) Lease that in lease of an immovable etc, "interest/real right' in B) Mortgage property only right to enjoy the the immovable property is C) License property is transferred and in lease transferred from one D) Tenancy of an immovable property no person to another. On the interest is created in the property. contrary license refers to Further, if the answer to Question the permissive use of the 88 is believed to the option C, as property without reflected in the answer key, it would transmitting the interest in mean that no interest is created in the property to the the property in case of a license, licensee. Reference be however, in case of a lease interest made to BB Mitra & Sen is created in the property. The Gupta on The Transfer of Petitioner submits that a harmonious Property Act, 1882, 19th reading of the two questions shows Edition (2011), Kamal that they are contrary to each other Law House, Kolkata, and hence ought to be corrected and pp.1074-1075. deleted. Reliance being placed on Easement Act, 1882 is misplaced as the statute is territorially limited in its application and Section 52 of the Act itself specifies that the right transferred in license does not amount to an interest in the property.
It, thus, reinforces the point that license does not involve transfer of an interest in the immovable property.
Thus, the panel is of the view that the official answer key is correct.
11. Question No. 91: CWP No. 4890 of 2023. The question posed is Q) The Petitioner claims that option A asking about the effect of A Acknowledgment "B" is the correct answer. acknowledgment after the after the period of The Petitioner relied upon Section period of limitation. The limitation: 25 of the Indian Contract Act. answer to the same is A) is of no effect Section 25 makes it clear that provided in Section 18 of B) gives rise to an acknowledgment is given after the the Limitation Act, 1963 independent and debt is barred, then it amounts to a which deals with the effect enforceable contract and can be enforced in the of acknowledgment in contract competent court of law as a separate writing. As per the same, C) neither (a) nor contract. It cannot be said that the an acknowledgment made
(b) said acknowledgment has no effect. in writing signed by the D) Both (a) and parties before the
(b) are correct CWP No. 5308 of 2023. expiration of the prescribed The Petitioner claims that the period of limitation gives correct answer of question 91 is not rise to a fresh period of "A" and the correct answer should limitation from the date of be on the basis of Section 25(3) of said acknowledgment. Indian Contract Acti.e., "B". Thus, to be effective, it The Petitioner relies on Section 25 must be made within the of the Indian Contract Act. prescribed period of The inadequacy of the consideration limitation. is a fact which the fact should take The objectors appear to into account in considering whether have been misled by the or not the consent was freely given. provision contained in the Since the question was ambiguous, Section 25 of the Indian thus the candidate opting for answer Contract Act, 1872 which 34 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 35 on the basis of Section 25 of the deals with agreement Indian Contract Act, cannot be without consideration as denied the benefit of marks. void unless it is in writing and registered or is a CWP No. 5323 of 2023. promise to compensate for That the Petitioner Claims that the something done or is a correct Answer of Question No.91 promise to pay a debt is answer "D" and the reasoning of barred by limitation law. which is duly Supported by Law is Sub-section 3 of the same stated as below: provides that an agreement That this Hon'ble court in RSA will be a contract and not No.2927 of 2015 decided on void, if it is a promise, 02.02.2015 (Saroop Singh Vs. made in writing and signed Rattan Singh (dead) through LRs) by the person to be charged wherein the counsel for respondent therewith, or by his agent placed reliance upon the judgment generally or specially of A.V. Murthy Vs. B.S. authorized in that behalf, to Nagabasavanna, 2002 (1) RCR pay wholly or in part a debt (Criminal) 745; wherein Hon'ble of which the creditor might Supreme Court has referred to have enforced payment but Section 25(3) of Indian Contract for the law for the Act 1872 and has accepted that even limitation of suits. the time barred debts also can be There is a vital distinction enforceable in the light of between 'promise to pay subsequent acknowledgment of time barred debt' under the liability. Hence, considering above said provision of the judgment and Section 25 (3) of the Contract Act from Indian Contract Act, Civil Suit 'acknowledgement' under cannot be dismissed on the ground the Limitation Act. Except of limitation, since it gives rise to an for the commonality of independent and enforceable being in writing the two contract. Thus Petitioner claims that are distinct in content, option (b) is correct option too. concept and operation. Moreover, as per Section 18 of Judgment in the case of Limitation Act, option (a) is also the Sama Dharman v S. correct answer. Natarajan, Crl. O.P. (MD) No. 3824/2012, by the CWP No. 9028 of 2023. Hon'ble High Court of That the Petitioner claims that the Madras, relied on by one correct Answer of Question No.91 of the objectors support the is answer "B" and the reasoning of above view. which is duly Supported by Law is The question is asking stated as below: about the effect of The important words in Section 5 of acknowledgement on the Limitation Act are "may be period of limitation, a admitted". The legislature has not question under the used the expression "shall be Limitation Act. 1963. The admitted". panel has considered the Perusal of the said provision makes cited judicial precedents it clear that even the and found those to be acknowledgement of debt is given inapplicable to the posed after the debt is barred then it question. A detailed amounts to be a contract and it can discussion on the cited be enforced in the competent court precedent is being obviated of law as a separate contract. It to avoid prolixity. cannot be said that the said Accordingly, the acknowledgement has no effect. objections raised by the candidates have no merits.
CWP No. 5971 of 2023. Thus, the Panel is of the view that the official The Petitioner claims that the answer key is correct. question is liable to be deleted since more than 2 sets of answers as "A", "B" and "D", and self-contrary in nature.
Section 23(3) of Indian Contract Act has been relied upon.
12. Question No. 94: CWP No. 4697 of 2023 The thrust of question is to Q) Condonation That the Petitioner claims that the C find out the key element in C of delay under correct Answer of Question No.94 the operation of Section 5 Section 5 of is answer "B" and the reasoning of of the Limitation Act, Limitation Act: which is duly Supported by Law is 1963. S.5 provides for the A) Can be stated as below: extension of the prescribed claimed as a The important words in section 5 of period for filing appeal 35 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 36 matter of right Limitation Act are "may be etc., if sufficient cause is B) Is a matter of admitted". The legislature has not shown to the Court to its discretion of the used the expression "shall be satisfaction. The existence Court admitted". of cause and thereafter its C) Sufficient Meaning thereby once the cause has due sufficiency is to be cause for the been found to be sufficient, still the adjudged by the Court delay has to be court is not bound to allow exercising its judicial shown condonation of delay. The court will discretion based on sound D) None of the also examine the overall principles. No straight above circumstances of the case and jacket formula can be laid particularly the effect of the down the exercise of condonation of delay upon opposite judicial discretion depends party. If the court finds that the on a large number of facts opposite has altered his position to and circumstances such an extent that condonation of obtainable in each case. delay would result into irreparable Various principles have loss to him then despite the been laid down/evolved by sufficiency of the cause, the court the Courts in order to shall not condone the delay. adjudge the sufficiency of cause.
CWP No. 6497 of 2023 The authorities cited by the
44. That the Petitioner Claims objectors do not lay down that the correct Answer of Question any rule of law that No.94 is answer "B" and the condonation of delay is reasoning of which is duly purely a matter of judicial Supported by Law is stated as discretion dehors the below: existence of element of
45. The important words in 'sufficient cause'. It cannot Section 5 of Limitation Act are be claimed as a matter of "may be admitted". The legislature right and discretion of the has not used the expression "shall court is founded on be admitted" showing of 'sufficient
46. Meaning thereby once the cause'. cause has been found to be Therefore, the candidates sufficient, still the court is not failed to analyse the bound to allow condonation of question as well as law delay. The court will also examine applicable thereto in right the overall circumstances of the perspective and adopted case and particularly the effect of pedantic approach without the condonation of delay upon realizing the depth of opposite party. If the court finds that question posed. the opposite has altered his position Thus, the Panel is of the to such an extent that condonation view that the official of delay would result into answer key is correct irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay. Power to condone delay under Section 5 of the Act is discretionary. Liberal Approach must be adopted which means that discretion must not be exercised arbitrarily.
CWP No. 5308 of 2023.
The Petitioner claims that the correct Answer of Question No.94 is answer "B" and the reasoning of which is duly Supported by Law is stated as below:
The important words in section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted"
Meaning thereby once the cause has been found to be sufficient, still the court is not bound to allow condonation of delay. The court will also examine the overall circumstances of the case and particularly the effect of the condonation of delay upon opposite party. If the court finds that the opposite has altered his position to 36 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 37 such an extent that condonation of delay would result into irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay.
Case relied upon: N. Balakrishnan v. N. Krishnamurthy 1999 (2) RCR (Civil) 578.
CWP No. 6684 of 2023.
That the Petitioner claims that the correct Answer of Question No.94 is answer "B" and the reasoning of which is duly Supported by Law is stated as below:
The important words in section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted"
Meaning thereby once the cause has been found to be sufficient, still the court is not bound to allow condonation of delay. The court will also examine the overall circumstances of the case and particularly the effect of the condonation of delay upon opposite party. If the court finds that the opposite has altered his position to such an extent that condonation of delay would result into irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay.CWP No. 9028 of 2023
That the Petitioner claims that the correct Answer of Question No.94 is answer "B" and the reasoning of which is duly Supported by Law is stated as below:
The important words in section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted".
Meaning thereby once the cause has been found to be sufficient, still the court is not bound to allow condonation of delay. The court will also examine the overall circumstances of the case and particularly the effect of the condonation of delay upon opposite party. If the court finds that the opposite has altered his position to such an extent that condonation of delay would result into irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay.
CWP No. 8614 of 2023That the Petitioner claims that the correct Answer of Question No.94 is answer "B"
The Petitioner states that the important words in Section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted". Meaning thereby once 37 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 38 the cause has been found to be sufficient, still the court is not bound to allow condonation of delay. The court will also examine the overall circumstances of the case and particularly the effect of the condonation of delay upon opposite party. If the court finds that the opposite has altered his position to such an extent that condonation of delay would result into irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay.
CWP No. 9256 of 2023That the Petitioner claims that the correct Answer of Question No.94 is answer "B" and the reasoning of which is duly Supported by Law is stated as below:
The important words in section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted". Meaning thereby once the cause has been found to be sufficient, still the court is not bound to allow condonation of delay. The court will also examine the overall circumstances of the case and particularly the effect of the condonation of delay upon opposite party. If the court finds that the opposite has altered his position to such an extent that condonation of delay would result into irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay.CWP No. 11695 of 2023
That the Petitioner Claims that the correct Answer of Question No.94 is answer "B".
The important words in Section 5 of Limitation Act are "may be admitted".
That Section 5 uses the word 'May'; it is clearly stated that an application 'may' be admitted. Therefore, discretion has been granted to courts to admit an application or any other matter after sufficient cause has to be shown to condone any delay, even then it is the discretion of the Court to condone or not condone the delay.CWP No. 7983 of 2023
Petitioner Claims that the correct Answer of Question No.94 is answer "B" and the reasoning of which is duly Supported by Law is stated as below:
The important words in Section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted"
Meaning thereby once the cause has been found to be sufficient, still the court is not bound to allow condonation of delay. The court will
38 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 39 also examine the overall circumstances of the case and particularly the effect of the condonation of delay upon opposite party. If the court finds that the opposite has altered his position to such an extent that condonation of delay would result into irreparable loss to him then despite the sufficiency of the cause, the court shall not condone the delay.
The Petitioner has relied on the case law N. Balakrishnan V. M. Krishnamurthi CWP No. 8366 of 2023 That the Petitioner Claims that the correct Answer of Question No.94 is answer "B".
The important words in Section 5 of Limitation Act are "may be admitted". The legislature has not used the expression "shall be admitted"
That Section 5 uses the word 'May'; it is clearly stated that an application 'may' be admitted. Therefore, discretion has been granted to courts to admit an application or any other matter after sufficient cause has to be shown to condone any delay, even then it is the discretion of the Court to condone or not condone the delay.
That the Petitioners have relied upon a Judgement by the Hon'ble Supreme Court dealing with the aforesaid Issue in the matter titled as Ramlal, Motilal and Chhotelal Vs. Rewa Coal Fields Ltd. AIR 1962 SC 361.
13. Question No. CWP No. 4890 of 2023 The official website of 103: That the Petitioner claims that the B Government of Deleted Q) Pench Tiger correct Answer of Question No.103 Maharashtra as well as the Reserve is located is answer "B" and the present map at the website of in which State? Petitioner had also marked the Government of Madhya A) Maharashtra Answer "B" and the Respondents Pradesh clearly shows that B) Madhya had arbitrarily deleted the question the Pench Tiger Reserve is Pradesh in the final answer key without any situated within the C) Karnataka basis. territorial boundaries of D) Kerala That the Petitioner contends that in both the states.
the proposed answer key issued by Thus, the Panel the respondents, the respondents recommends that marks have rightly mentioned the answer should be allotted to all the B to the Question No. 103. candidates who have opted However, the Respondents have either option A or option without any rationale, deleted the B. In the alternate the said question in their announcement question should be deleted as well as in the final answer key. as there is no option The Petitioner further contents that containing A and B. The once he has marked right answer to Panel leaves it to the the question, then in no judgment of the Hon'ble circumstances, the Respondents can Committee to take the final delete the said question and if there call. is any necessity arises to delete the said question, then the grace marks of the said question must be given to the Petitioner who has attempted one of the correct answer.
CWP No. 5323 of 2023The Petitioner claims that both "A" and "B" are correct answers.
69. That the Petitioner 39 of 51 ::: Downloaded on - 03-06-2023 03:42:33 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 40 contends that in the proposed answer key issued by the Respondents, the Respondents have rightly mentioned the answer B to the Question No. 103. However, the Respondents have without any rationale, deleted the said question in their announcement as well as in the final answer key. The Petitioner further contents that once he has marked right answer to the question, then in no circumstances, the Respondents can delete the said question and if there is any necessity arises to delete the said question, then the grace marks of the said question must be given to the Petitioner who has attempted one of the correct answer.
14. Question No.117 CWP No. 9803 of 2023 The panel went through the Six months The Petitioner states that the correct C aforesaid four citations. C waiting period in answer to the question is option "A" The authority mentioned in divorce by mutual whereas in the answer key it has option A does not hold so; consent was held been marked as Option "C" the rather the Supreme Court to be not Petitioner states that in the specifically invoked mandatory in: Judgement mentioned in Option "C" Article 142 of the A) Nikhil Kumar i.e., in Amardeep Singh V. Harveen Constitution of India in v. Rupali Kumar Kaur AIR 2017 4417 it is clearly waiving off statutory (2016) 13 SCC mentioned that previously the same period of six months under 383 issue was decided in Judgement Section 13 (B) of Hindu B) Romesh mentioned at Option "A" i.e, Nikhil Marriage Act, 1955. On the Chander v. Savitri Kumar V. Rupali Kumar (2016) 13 other hand, in the authority (1995) 2 SCC 7 SCC 383. Therefore, the correct mentioned in option C, the C) Amardeep answer should be Option "A". Hon'ble Supreme Court Singh v. Harveen discussed the law in detail Kaur AIR 2017 and laid down certain SC 4417 parameters on the D) Durga fulfillment of which a Parsanna Tripathy trial/family Court can v. Arundhati waive off six months Tripathy (2005) 7 waiting period in a petition SCC 353 under Section 12-B of Hindu Marriage Act, 1955.
Thus, the Panel is of the view that the official answer key is correct.
11. Summary of recommendation qua the answer key to the abovesaid fourteen (14) questions is as under:-
Sr. Question No. Total Objections Remarks No.
1. 1 89 Changing of official answer key from option D to option C
6. 17 67 The official answer key is correct
12. 35 30 Referred to Recruitment Committee for final call
14. 37 45 The official answer key is correct
22. 64 1 Referred to Recruitment Committee for final call
24. 67 39 The official answer key is correct 40 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 41
26. 69 137 The official answer key is correct
27. 73 53 The official answer key is correct
34. 85 30 The official answer key is correct
37. 88 1 The official answer key is correct
39. 91 62 The official answer key is correct
42. 94 169 The official answer key is correct
46. 103 8 Referred to Recruitmnet Committee for final call
49. 117 7 The official answer key is correct
12. The matter was then considered by the learned Recruitment Committee in its meeting held on 13.02.2023. After consideration of recommendations as submitted by the Expert Panel, it was resolved that questions appearing at serial numbers 5, 6, 64 and 103 in the Copy of Question Paper Code 'A' be deleted with the consequence that no credit or discredit in respect of these questions be given irrespective of the fact whether these questions have been attempted by the candidates or not. In respect to question no. 35, it was resolved that no change is required for the proposed answer key and in respect to question no. 1, the Committee found anomaly in the proposed answer key, therefore recommended the change of answer from option D to option C. It was directed that proposed changes in the answer key of the preliminary examination held on 22.01.2023 be uploaded of the official website of this Court with the stipulation that any candidate may file online cross-objections on the "Cross-Objection Portal"
of the official website of this High Court while affording two days time and that cross-objections, if so received, should be put up before the Committee.
13. As many as 35 cross-objections were received against the proposed change in respect to question no.1 in the answer key. The matter was reconsidered by the learned Committee and it was resolved on 41 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 42 21.02.2023 that question no.1 also should be deleted being ambiguous.
Certain cross-objections received through e-mail qua deletion of two questions, were also considered, but finding no substance therein said cross-
objections were rejected. Answer key was directed to be finalized and result prepared through the service provider. Final answer key was uploaded on 21.02.2023.
14. Learned counsel for the petitioners in different writ petitions submitted that taking preliminary examination admittedly does not vest any candidate with the right of selection and that the only right which would accrue to the candidates would be to make him/her eligible to take the main examination i.e., the next step for selection and while stating that being fully conscious of the settled position that an Expert opinion should not ordinarily be tinkered with, they vehemently argued that as the Court is not alien to the subject to law, therefore the abovesaid may not apply stricto sensu.
Vehement arguments have been raised by learned counsel for the petitioners in respect to all the questions while submitting qua some of the questions, that deletion thereof is not made out at all and furthermore in respect to some of the questions, two or more options are correct, therefore said questions should have been deleted.
15. In respect to deletion of question no.1, it has been categorically argued that once the Expert Panel had recommended change of the final answer key from option D to C, deletion of the said question was not called for. It was argued that incorrect change in the answer key has caused manifest injustice to the petitioners, some of whom have obtained such marks that if they had the benefit of questions deleted (which are stated to have been correctly answered), they would be eligible to take the main examination. With the deletion of some of the questions, some of the 42 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 43 petitioners, it is submitted, have been put to specific disadvantage. Apart from reiterating the objections as raised by the petitioners qua the answer key to fifteen questions as dealt with by the Expert Committee, certain additional arguments were also raised qua some of the questions by learned counsel.
16. Learned counsel for the petitioners have urged that in the given facts and circumstances, where glaring discrepancies are apparent on the face of it, interference by this Court is called for and another Expert Committee comprising of retired High Court Judges should be constituted to look into the matter and in the meanwhile, petitioners should be permitted to take the main examination provisionally subject to decision of the said Expert Committee.
17. We also take note of the additional argument raised on behalf of the petitioner in CWP No.11695 of 2023 to the extent that no marks have been awarded to her for her answer to question no.101 of Set B i.e., Question No.10 of Set A. It is her case that she had blackened option D as answer to question no.101 which is the correct answer as per the answer key.
She was not awarded any marks for the same. As per information received by her, there was overwriting on her OMR Sheet at option A also, due to which no marks were granted for this answer. Learned counsel for the petitioner submits that it is only a few dots which are visible under option A to question no.1 and the complete option D has been blackened by the petitioner, therefore she should be awarded marks for the same.
18. Original OMR Sheet of the said petition was produced before us and we found that option D of question no.101 was completely blackened and option A was partially blackened by the petitioner, inasmuch as the complete centre portion of option A was blackened and it is not a case of 43 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 44 few dots appearing at option A.
19. Learned counsel for the said petition on examining the original OMR Sheet himself is unable to deny that in terms of instruction no. 2 contained in the OMR sheet itself, she is not entitled to any marks for the same.
20. Learned counsel for all the petitioners, while reiterating that opinion of the Expert Panel and learned Recruitment Committee is required to be revisited, prayed that all these writ petitions should be allowed.
21. Learned counsel for respondent no.3 while refuting the arguments raised on behalf of the petitioners submitted that process of selection is being carried with strict adherence to the provisions of law and that there is no ground whatsoever which calls for setting aside of the answer key released on 21.02.2023. It is submitted that an Expert Panel was duly constituted and thereafter the matter considered by the learned Recruitment Committee itself and necessary action taken. It is thus prayed that all these writ petitions be dismissed.
22. We have heard learned counsel for the parties at length and have gone through the file and record as produced before us with their able assistance.
23. It is to be noted at the outset that written statement has been filed in some of the writ petitions i.e., CWP Nos.4630, 6497, 4697, 4890, 5308, 5323, 6593, 6684, 7983, 8366, 9028, 9803, 10483, 9256, 8614 and 5971 of 2023. Learned counsel for the parties had agreed that it was not necessary for individual written statements to be filed in all the writ petitions. CWP Nos.11237, 11312, 11926 and 11695 of 2023, in which notice of motion was not formally issued as yet were also taken up for hearing at request of learned counsel with the requisite information being 44 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 45 made available by learned counsel for respondent no.3.
24. It is a settled position of law that judicial restraint is always to be exercised qua interference with answer keys provided by Expert Committees in exercise of jurisdiction under Article 226 of the Constitution of India. The Hon'ble Supreme Court in Kanpur University, through Vice Chancellor and others Vs. Samir Gupta and others, 1983(4) SCC 309, has observed as under:-
"16....... We agree 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. It 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 as correct........."
25. The Hon'ble Supreme Court in case of Ran Vijay Singh and others Vs. State of U.P and others (2018) 2 SCC 357, while dealing with the question of revaluation or scrutiny of answer sheets held as under:-
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
(i) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
(ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-
evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;
(iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate - it has no Expertise in the matter and academic matters are best left to academics;
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(iv) The Court should presume the correctness of the key answers and proceed on that assumption; and
(v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."
xx xx xx xx
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse - exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic 46 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 47 example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination
- whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
26. Insofar as the argument that this Court not being an alien to the subject of law, should examine the objections raised as in appeal, is devoid of any merit, hence rejected. In this respect gainful reference can be made to a Division Bench Judgment of this High Court in CWP No. 698 of 2022, decided on 14.01.2022, titled as Penaaz Dhillon Vs. State of Haryana and others, wherein challenge was to the result of preliminary examination of the HCS (Judicial Branch) Examination 2020-21 for the post of Civil Judge (Jr. Division). Challenge had been raised to the answer key in the said case. While referring to judgment of the Hon'ble Supreme Court in H.P. Public Service Commission Vs. Mukesh Thakur and others, 2010 (6) SCC 759, it was held that merely because the subject happens to be law, the Court would not arrogate to itself the powers of the Expert Committee.
27. The Hon'ble Supreme Court while reiterating and reaffirming its earlier decisions, held as under in U.P.P.S.C and others Vs. Rahul Singh and others, 2018 AIR (Supreme Court) 2861:-
"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 47 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 48 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."
28. Details of objections raised by the petitioners, their consideration by the Expert Panel and their evaluation by the learned Recruitment Committee has been reproduced in the foregoing paras. We have also gone through the Original Report of the Expert Panel produced before us. Learned counsel for the petitioners had referred to the judgments, which have admittedly been considered by the Expert Panel as well as the learned Recruitment Committee. Having considered the recommendation of the Expert Committee as further considered, deliberated and decided by the learned Recruitment Committee, details of which as supplied to us and as have been reproduced in the foregoing paras, we find no glaring mistake or opinion which is unreasonable, calling for interference in exercise of jurisdiction under Article 226 of the Constitution of India. In the given factual matrix, we do not consider it necessary or appropriate to render a further detailed discussion on each and every individual question.
29. We do not find any such glaring discrepancy in the matter which calls for the matter being referred to another Expert Committee.
Routine constitution of such Expert Committee/s has been deprecated by the Hon'ble Supreme Court in Haryana Public Service Commission Vs. State of Haryana and others, Civil Appeal No. 7727 of 2019 (arising out of SLP (C) No. 30800 of 2018). In the said case, Haryana Public Service Commission, had undertaken the selection process to appoint 133 Assistant Professors of Geography (College), for which an objective type question 48 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 49 paper was set up wherein candidates were required to answer 100 questions.
It was contended before the learned Single Judge that out of 100 questions, most of them are either ambiguous or without correct answer key. Expert Committee was constituted, which on going through the question paper in detail gave its opinion regarding seven questions. Learned Single Judge on going through the question paper concluded that four more questions were ambiguous, therefore should be deleted from consideration. Division Bench in appeal against the decision of the learned Single Judge, while holding that it was not for the learned Single Judge to carry out the exercise of an expert, passed orders for appointing another Expert Committee, which was subject matter of challenge before the Hon'ble Supreme Court in Haryana Public Service Commission's case (Supra). The Hon'ble Supreme Court held that if judgment of Division Bench is allowed to stand, there would be no finality to the selection process and especially keeping in view the fact that there was no allegation as such against the Expert Committee, who in its wisdom had submitted its report.
30. We must note at this stage that much stress had been laid on the fact that deletion of question no.1 is unfair on the premise that the Expert Panel had recommended change of answer to question no.1 from option D to C and the same was accepted by the learned Recruitment Committee at the first instance on 13.02.2023. Therefore, deletion of question no.1 was incorrectly directed by the learned Recruitment Committee at a subsequent stage, working to the detriment of a number of candidates, who would otherwise have been eligible to take the Mains examination, having answered the said question correctly. However, we find no merit in this argument in view of the discussion in the foregoing paras. We further reiterate that having perused meeting note dated 17.02.2023 of the learned 49 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 50 Recruitment Committee we find that decision to delete Question no.1 was a well deliberated process after taking note of 35 cross-objections which were received against the proposed answer key to question no.1. It is reiterated that we have deliberately not entered the realm of discussion on the individual questions as in terms of the arguments as raised before us for the reason that we do not find the opinion and the recommendation of the Expert Panel and the decision taken by the learned Recruitment Committee to be discrepant or unreasonable which calls for any interference. As has been held by the Hon'ble Supreme Court in case of Ran Vijay Singh (Supra), in the event of doubt, benefit necessarily has to be given to the examination authority rather than the candidate and exclusion of an offending question has been found to be correct way out.
31. The Hon'ble Supreme Court in High Court of Tripura through Registrar General Vs. Tirtha Sarathi Mukherjee and others, 2019 (2) SCT 117, held that the right to seek a writ of mandamus is based on the existence of a legal right and corresponding duty with the answering respondent to carry out public duty. In the absence of any provision, the writ Court, it is held would exercise its powers only in a situation which is rare and exceptional. No such exceptional circumstance has been pointed out in these writ petitions.
32. It is pertinent to note that there is no allegation whatsoever against the Expert Panel or the learned Recruitment Committee. In-fact, learned counsel for the petitioners have been at pains to express that there is categorically no allegation or any mala fide alleged either against the Expert Panel or learned Recruitment Committee and that they would point out only the discrepancies on the basis of which they seek relief.
33. In the given factual matrix, we find no ground whatsoever to 50 of 51 ::: Downloaded on - 03-06-2023 03:42:34 ::: Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 51 interfere in the matter as in our considered opinion, learned counsel for the petitioners are unable to point out any such glaring discrepancy(ies) which call for interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
34. Learned counsel for the petitioners has also been unable to point out any illegality or irregularity to indicate that the process and procedure followed was not justified or was unfair in any manner.
35. It is necessary to note at this juncture that some miscellaneous applications have been filed by some unsuccessful candidates seeking intervention on the ground that they are similarly situated as the petitioners in the said writ petitions. Hearing was afforded to learned counsel for said applicants as well.
36. Keeping in view the facts and circumstances as above, we do not find any ground whatsoever which calls for interference by this Court in the present writ petitions.
37. No other argument has been raised.
38. All the writ petitions are accordingly dismissed with no order as to costs. Pending applications are also disposed of accordingly.
( LISA GILL ) JUDGE (RITU TAGORE) June 01 , 2023. JUDGE s.khan Whether speaking/reasoned : Yes/No. Whether reportable : Yes/No. Neutral Citation No:=2023:PHHC:080579-DB 51 of 51 ::: Downloaded on - 03-06-2023 03:42:34 :::