Jharkhand High Court
Aashish Kumar Chaurasiya vs State Of Jharkhand Through The ... on 18 April, 2018
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S).No. 568 of 2018
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Aashish Kumar Chaurasiya, son of Basudeb Chaurasiya, resident of village Bhendera, P.O. Bhendera, P.S. Navadih, Distt. Bokaro.
... ... ... ...Petitioner
-Versus-
1. State of Jharkhand through the Principal Secretary, Home Department, Govt. of Jharkhand, Ranchi.
2. The Director General of Police, Jharkhand, Ranchi.
3. The Inspector General of Police (Personnel), Jharkhand, Ranchi.
4. Jharkhand Staff Selection Commission through its Secretary, Ranchi.
... ... ... ....Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner :
Mr. Rajiv Ranjan, Sr. Advocate
Mr. Shray Mishra, Advocate
For the Respondents: Mr. Samir Sahay, AC to AG
Mr. Sanjoy Piprawal, Advocate
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06/ 18.04.2018 Heard learned counsel for the petitioner and learned counsel for the
respondents.
2. The petitioner has approached this Court with a prayer for quashing the merit list (Annexure-6) in terms of which candidates' names have been shortlisted for the physical test for recruitment to the post of Sub-Inspector from the post of Assistant Sub-Inspector and Constable in the limited competitive examination held on 26.11.2017, as several questions in the said examinations were framed erroneously, having wrong options in the multiple choice answer and some of the questions were out of syllabus.
Further prayer has been made for a direction upon the respondents to re-valuate/re-tabulate the answer scripts of the petitioner/ candidates appearing in the said examination, awarding marks for question which were framed erroneously and to re-publish the merit list of the candidates selected for physical test, as enough seats are still lying vacant. It has also been prayed that till then, the selection process of Sub-Inspector through the said examination be kept in abeyance.
23. The facts of the case lies in a narrow compass. The respondent Commission published an advertisement being Advt. No. 9 of 2017 for appointment of Sub-Inspector through a limited competitive examination for a total number of 1544 seats throughout the State of Jharkhand. The petitioner fulfilling the requisite criteria, submitted his application before the respondents and has also appeared in the written examination held on 26.11.2017. It is the further case of the petitioner that the written examination comprised three papers namely, i) General Hindi; ii) General Knowledge; and iii) General Studies. It is the specific case of the petitioner that the advertisement itself provided the specific provisions of Law from which the questions would be asked. After conclusion of the written examination, the Commission published the 1st answer keys mentioning therein the corrected choice of the answers to the multiple choice questions and has invited objections from the aggrieved candidates, so published between the period from 01.12.2017 to 08.12.2017. In response to that, several objections were filed by the candidates, who appeared in the said examinations and taking into consideration all such objections, a revised 2 nd answer key was published by the Commission on 28.12.2017. However, the 2nd revised answer key also contained several errors and as such, objections were filed by the candidates and consequently, the 3rd answer key was published by the Commission on 07.01.2018. Based on the 3rd answer key, the Jharkhand Staff Selection Commission published the merit list on 08.01.2018 comprising candidates selected for physical test. It is the specific case of the petitioner that in the written test several questions were erroneously framed by the respondents having wrong answers in multiple choice answer and some of them were out of syllabus thereby seriously impairing the petitioner's chances to score the 50% cut-off marks for selection in the written test for appointment to the post of Sub- Inspector. Hence, the petitioner has knocked the door of this Hon'ble Court for redressal of his grievances.
4. Mr. Rajiv Ranjan, learned senior counsel appearing for the petitioner strenuously urges that the respondents were duty bound to frame questions within the four corners of the syllabus so provided and the acts and action of the respondents in asking question beyond the purview of the syllabus was bad in law. Learned senior counsel further argues that as the questions are out of 3 syllabus equal marks thereof should have been awarded to all the candidates for the same. It has further been argued that no additional marks has been granted even for the questions which were either wrong or having erroneous answers or beyond the syllabus insptie of the fact that the respondents are duty bound to grant additional marks for those questions. Learned senior counsel further argues that out of total 1544 seats only 399 candidates have been shortlisted after physical test and as such, large number of seats are still lying vacant and hence, the case of the petitioner may be considered.
To buttress his arguments, learned counsel for the petitioner places reliance on the following judgments:-
1) Ran Vijay Singh & Ors. Vs. State of U.P. & Ors. [(2018) 2 SCC 357];
2) P.K. Velson & Ors. Vs. Union of India & Ors. [(2005) 11 SCC 192];
3) Manish Ujwal & Ors. Vs. Maharishi Dayanand Saraswati University & ors. [(2005) 13 SCC 744];
4) Kanpur University & Ors. Vs. Samir Gupta & Org. [AIR 1983 SC 1230]
5. In order to strengthen his arguments, learned senior counsel draws the attention of the Court towards para-30.2 of the judgment reported in case of Ran Vijay Singh (supra), which is reproduced herein below:-
"30.2 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."
6. Learned senior counsel further argues that admittedly 11 questions were out of syllabus carrying one marks each and as such, petitioner is entitled for grace marks and hence, a direction may be given to the respondents to consider the case for granting grace marks. The petitioner is not pressing for any re-evaluation. It has further been argued that ratio laid down in case of Rakesh Kumar Vs. State of Jharkhand & Ors. [2018 (1) JBCJ 641 (HC)] is not applicable in the instant case, rather, the ratio laid down in case of Manish Ujwal (supra) is fully applicable in the instant case.
7. Per contra, counter-affidavit has been filed by the respondents. Mr. 4 Sanjoy Piprawall, learned counsel appearing for the respondents argues that Jharkhand Staff Selection Commission, after conducting the examination, published the model answers and also invited objections/ suggestions from the aggrieved candidates. Pursuant thereto, the candidates have also submitted their objections/ suggestions before the J.S.S.C. which was placed before the experts committee for verification and correction and on the basis of the advice and correction made by the experts committee, the final revised model answers were published and on the basis of final revised model answers, the answer sheets of the candidates were evaluated and thereafter, the candidates, who have secured the minimum qualifying marks in terms of the advertisement, were allowed to appear in the physical test and medical fitness test and as such, there is no illegality in publication of the results and making recommendation for appointment of the successful candidates. Learned counsel further argues that the opinion/ suggestions of the experts committee is binding on the J.S.S.C. and the J.S.S.C. does the evaluation work of the answer sheets on the basis of opinion of the subject experts. Learned counsel further submits that J.S.S.C. has already made recommendation for appointment of the successful candidates and petitioner has also not made those successful candidates as party-respondents in the instant writ application and as such, this writ application is not maintainable and fit to be dismissed by this Hon'ble Court on the ground of non-joinder of necessary party. Learned counsel further submits that the petitioner has thrown challenge to the selection process, after conclusion of the selection process, which is an afterthought of the petitioner and the same cannot be entertained at this stage. Learned counsel further argues that no objections were ever raised during the examination neither any representation was preferred regarding grace marks. The results have been challenged after the same has been published. If at all aggrieved, it was open for the petitioner to challenge the same before publication of the results. The writ petitioner has chosen to challenge the results and process of selection and the questions are claimed to be out of syllabus, only after being declared unsuccessful. Learned counsel draws the attention of the Court towards para-34 of the counter-affidavit, which is reproduced herein below:-
"34. That, it is stated that instant Writ Application is also 5 not maintainable and fit to be dismissed by this Hon'ble Court in view of the fact that J.S.S.C. has already made the recommendation for appointment of the successful candidates and Petitioner has also not made those successful candidates as party Respondents in this Writ Application and as such the instant Writ Application is not maintainable and fit to be dismissed by this Hon'ble Court on the ground of Non-Joinder of necessary parties."
8. To strengthen his argument, learned counsel for the respondents places heavy reliance on the following judgments:-
i) Ran Vijay Singh & Ors. Vs. State of U.P. & Ors. [(2018) 1 JLJR 99];
ii) Himachal Pradesh Publish Service Commission Vs. Mukesh Thakur & Anr. [(2010) 6 SCC 759]; &
iii) Smt. Prabha Ranjan Gupta Vs. State of Jharkhand & Ors. [(2014) 3 JCR 291 Jhr.].
9. Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered view that since already the examination is over and the results have been published and this writ petition has been preferred after publication of the results, no interference is warranted in the instant case. Even if the petitioner has made out a case that 11 questions, carrying one marks each, were out of syllabus and as such, the petitioner is entitled for grace marks of those questions, cannot be entertained on the following grounds:-
(i) The examination is over and the results have been published.
(ii) Petitioner has approached this Court after fully participating in the process of examination and only after being declared unsuccessful.
(iii) Even if vacancies are still there, no right has accrued to the petitioner for appointment as filling-up of the vacancies totally lies within domain of the employer and not the legal right of the candidates.
(iv) Petitioner never raised objection and rather, accepted and fully participated in the examination. None other than the petitioner have approached this Court with a prayer for grant of grace marks.6
10. The Hon'ble Apex in case of Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr. (supra) has held as under:-
"20. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent no.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.
24. The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth etc. AIR 1984 SC 1543, wherein this Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under.
..........It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act...
.......The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act........."7
In the recent judgment of Hon'ble Supreme Court reported in case of Ran Vijay Singh & Ors. Vs. State of U.P. & Ors. (supra), the Hon'ble Supreme Court has held as under:-
"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."
The Division Bench of this Hon'ble Court in case of Rakesh Kumar Vs. State of Jharkhand & Ors. (supra), relying on the judgment of Hon'ble Supreme Court passed in the case M.C Gupta (Dr.) V. Arun Kumar Gupta (Dr.), reported in (1979) 2 SCC 339, has also reiterated the same. Relevant para of the judgment passed in case of M.C Gupta (Dr.) V. Arun Kumar Gupta (Dr.) is reproduced herein below:-
"When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be."
11. Mr. Rajiv Ranjan, learned senior counsel appearing for the petitioner places heavy reliance on the judgment reported in case of P.K. Velson & Ors. Vs. Union of India & ors. (supra) for consideration of the case of the petitioner for granting grace marks. However, the said judgment is not at all applicable in the instant case, as in case of P.K. Velson in respect of similar screening test earlier other candidates had also been given grace marks and the Court had held that in peculiar facts of the case, appellants were entitled to be treated similarly but in the case in hand none of the candidates have been given the grace marks 8 and there is no question of any discrimination or similarity. The Hon'ble Supreme Court had interfered in peculiar facts and circumstances but here no case is made- out for interference and the case is distinguished. The petitioner is not entitled to get grace marks as the other candidates, who have appeared in the examination, passed the same and as such, petitioner was not entitled to get any grace marks. The facts of the present case is entirely different to that of P.K. Velson's case. The other cases relied upon by the learned counsel for the petitioner is also not applicable in the instant case.
Similar issue fell for consideration before this Hon'ble Court in W.P.(C). No. 4184 of 2005 (Bimlesh Kumar Vs. Jharkhand Public Service Commission & Anr.) and this Hon'ble Court, while dismissing the said writ application, has held that petitioner had appeared in the examination without any objection and subsequently, writ application has been filed after results have been declared and appointments have been made and as such, I find no merit in this writ application, which is, accordingly, dismissed.
12. The Hon'ble Apex Court in case of Ran Vijay Singh & Ors. Vs. State of U.P. & Ors. has clearly held that, in the event of a doubt, the benefit should go to the examination authority rather than to the candidate. Even if some questions were out of syllabus, the candidates cannot take benefits out of it for allotment of grace marks.
13. As a cumulative effect of the aforesaid observations, rules, guidelines, legal propositions, I do not find any illegality or any infirmity in the recruitment process conducted by the respondents-JSSC for appointment to the post of Sub- Inspector from the post of Assistant Sub-Inspector and Constable in the limited competitive examination held on 26.11.2017. There is no merit in the instant writ application.
14. Resultantly, the writ petition stands dismissed.
(Dr. S.N. Pathak, J.) kunal/-