1

A.F.R.

Court No.39

Case :- WRIT - A No. - 58554 of 2015

Petitioner :- Anurag Tripathi

Respondent :- U.P.P.S.C. And 2 Others

Counsel for Petitioner :- Anurag Tripathi in person

Counsel for Respondent :- C.S.C.,Ajay Kumar,Mahendra Narain Singh,

Ms. Meenakshi Singh

Hon'ble Dilip Gupta, J.

Hon'ble Amar Singh Chauhan, J.

The petitioner, who had responded to the advertisement issued by

the U.P. Public Service Commission, Allahabad

1

inviting applications for

appointments of Civil Judges (Junior Division) in the U.P. Judicial

Service, has challenged the key answers published by the Commission for

Question No.45 of General Knowledge (First Paper) - 'C' Series as also

Question Nos.10 and 21 of the Law (Second Paper) - 'C' Series of the

preliminary examination 2015.

The selections are made after holding a preliminary examination

and then a main examination followed by interviews. The preliminary

examination was conducted by the Commission on 6 September 2015.

The preliminary examination consisted of General Knowledge and Law

Papers. It was objective in nature, each question containing four options

out of which one option had to be selected by the candidates as the

correct answer. The General Knowledge paper was of 150 questions

carrying one mark each, while the Law Paper contained 150 questions

carrying two marks each. Thus, the total marks of General Knowledge

1the Commission

NeutralO7itationONocOlO)(D'q_Y7qLGx(xl“–

2

were 150 while that of Law Paper were 300. The result of the preliminary

examination was declared on 29 September 2015.

Initially, the key answers of the aforesaid papers were displayed on

the website of the Commission from 12 September 2015 and objections

were invited from candidates. In order to examine the objections, two

separate subject expert Committees were constituted by the Commission.

The Expert Committee, after considering the objections raised by the

candidates, deleted certain questions and marks have been awarded to

them on the basis of a formula which is as follows:

total number of marks X No. of correct answer given by the candidate

Total marks obtained = ________________________________________________________

total number of questions – number of deleted questions

The petitioner, who belongs to the general category, obtained 70

marks in General Knowledge Paper and 230 marks in Law Paper. Thus,

in total he obtained 300 marks whereas the cut off mark for the general

category was declared as 301. The main examination was conducted by

the Commission on 29 October 2015 and the petitioner was permitted to

appear at the main examination in view of the interim order dated 15

October 2015. The Court has been informed that interviews are being

conducted.

The petitioner has raised doubts on the answers to Question No.45

of General Knowledge paper and Question Nos.10 and 21 of Law paper-

'C' Series. Question 45 of General Knowledge (First Paper)-'C' Series

with the four options is as follows:

“45. Badrinath is located in

(a) Kumaun Himalaya

3

(b) Central Himalaya

(c) Himadri

(d) Trans-Himalaya”

The Commission had earlier declared option '(a)-Kumaun

Himalaya' as the correct answer to Question No.45 of the General

Knowledge Paper but subsequently the Expert Committee constituted by

the Commission to examine the objections submitted by the candidates

who had appeared in the preliminary examination, modified it to option

'(b)-Central Himalaya'.

The contention of the petitioner, who has appeared in person, is

that option '(a)-Kumaun Himalaya' which was earlier declared by the

Commission is the correct answer and option '(b)-Central Himalaya'

which was subsequently modified by the Commission is not the correct

answer.

The Commission has produced the report submitted by the Expert

Committee after examining the objections raised by the candidates. This

report mentions that after the separation of Uttarakhand from Uttar

Pradesh, the Central Himalaya in Uttarakhand has been divided into two

(i) Garhwal Himalaya and (ii) Kumayun Himalaya. Since Badrinath is

located in Chamoli District of Garhwal Himalaya which forms part of

Central Himalaya and Central Himalaya includes Kumaun Himalaya,

Garhwal Himalaya and Himadri, the nearest correct answer is Central

Himalaya.

This report has been seriously disputed by the petitioner and it is

sought to be contended that Badrinath falls in Kumaun Himalaya and not

4

Central Himalaya. In support of his contention, the petitioner has placed

reliance upon certain books namely, 'Bhugol - Ek Samagra Addhyan' by

Mahesh Kumar Barnwal, 'Encylopaedia Britannica', 'Bharat Ka Bhugol'

by R.C. Tiwari, 'Geography of India' by Ram Chandra Tiwari, 'Bharat Ka

Bhugol' by Ramesh Singh and has contended that in all these books it has

been clearly stated that Badrinath village and Shrine in northeastern

Uttarakhand State is situated in Kumaun Himalaya. According to the

petitioner, all these books emphasise that Kumaun Himalaya extends

from river Satluj to the river Kali covering a length of about 320 kms. and

its highest peak is Nanda Devi (7818 mts). The peaks also include

Badrinath at 7069 mts, Kedarnath at 6940 mts, Trisul at 7120 mts and

others. The petitioner also contends that these books also emphasise that

Central Himalaya stretches from river Kali to river Tista covering a

distance of about 800 kms. and major part of it lies in Nepal except the

Sikkim Himalaya and Darjeeling Himalaya in West Bengal and does not

include Badrinath.

Faced with the report submitted by the Expert Committee

constituted by the Commission and the books placed before the Court by

the petitioner in person in regard to the location of Badrinath in the

Himalayas, we called upon learned counsel appearing for the

Commission and the petitioner in person to place before the Court any

other relevant material since the issue that is required to be decided is

whether Badrinath falls in Kumaun Himalaya or Central Himalaya. Ms.

5

Meenakshi Singh, learned counsel for the State has also very ably assisted

the Court in this matter and has placed the relevant material.

Himalayas have been divided on regional basis. They are Punjab

Himalayas, Kumaun Himalayas, Nepal Himalayas, Assam Himalayas,

Western Himalayas, Central Himalayas and Eastern Himalayas. We are

concerned with the Kumaun Himalayas and Central Himalayas and they

are described as follows:

“Kumaun Himalayas - Between the Satluj and the

Kali rivers is the 320 km long Kumaun Himalaya. Its

western part is called Garhwal Himalaya and the

eastern part is known as Kumaun Himalaya. The

general elevation is higher as compared to Punjab

Himalaya. Nanda Devi, Kamet, Trisul, Badrinath,

Kedamath and Gangotri are important peaks. Kumaun

Himalaya is also the sources of sacred rivers like the

Ganga and the Yamuna. There are several duns

between the Middle Himalayas and Shiwalik Hills.

Nainital and Bhimtal are important lakes.

Central Himalayas- The Central Himalayas extends

from Kali river in the west to the Tista river in the

east. It stretches from the distance of about 800 km.

All the three Ranges of the Himalayas are present

here. The Great Himalaya range attains maximum

height in this portion. It is the abode of some of the

highest and famous peaks of the world like Mount

Everest, Kanchanjunga, Makalu, Annapurna and

Dhaulagiri are located here. The Lesser Himalaya is

known as Mahabharat Lekh in this region. The range

is crossed by rivers like Ghagara, Gandak, Kosi, etc.

In between the Great and the Lesser Himalayas, there

are Kathmandu and Pokhra valleys which represent

lacustrine deposit.”

With regard to the location of Badrinath vis-a-vis the State of

Uttarakhand, the report of the Expert Committee mentions that since

Badrinath is located in Chamoli District of Garhwal Himalaya which

forms part of Central Himalaya and Central Himalaya includes Kumaun

6

Himalaya, Garhwal Himalaya and Himadri, the nearest correct answer is

Central Himalaya. This is obviously a wrong reading. Central Himalaya

does not include Kumaun Himalaya as they are two separate regions of

Himalayas. The relevant books produced before the Court by the

petitioner in person clearly support the position that Badrinath is located

in Kumaun Himalaya which lies between Satluj and Kali rivers and not in

Central Himalaya.

'Encylopaedia Britannica' mentions that Badrinath is situated in

Kumaun Himalayas and it is as follows :

“Badrinath, village (uninhabited in winter) and

shrine in northeastern Uttarakhand state, northern

India. It is situated in the Kumaun Himalayas along a

headstream of the Ganges (Ganga) River, at an

elevation of about 10,000 feet (3,000 metres). It is

located along the twin mountain ranges of Nar and

Narayan on the left bank of Alakananda River.”

The other publications produced by the petitioner are in Hindi and

are to the same effect.

Ms. Meenakshi Singh, learned counsel appearing for the State has

produced materials which support the case of the petitioner that Badrinath

is located in Kumaun Himalaya and not in Central Himalaya. The extracts

of 'Geography of India' by R.C. Tiwari, which have been placed by the

learned counsel in regard to Kumaun Himalaya and Central Himalaya,

are as follows:

“3. The Kumaun Himalayas - The Kumaun

Himalayas lie between the Satluj and the Kali rivers,

stretching to a length of 320 km and occupying an

area of about 38,000 sq. km. Its highest peak is Nanda

Devi (7817 m). Among the other peaks Kamet (7756

7

m), Trisul (7140 m), Badrinath (7138 m), Kedamath

(6940 m), Dunagiri (7066 m), Jaonli or Shiving (6638

m), and Bandarpunch (6320 m) and important.

Gangotri, Milam and Pindar are the main glaciers of

Uttarakhand. The important hill stations include

Mussorrie, Nainital, Ranikhet, Almora and

Bageshwar. The Kumaun Himalayas are connected to

Tibet by a number of passes namely, Mulinga-La

(5669 m), Pana Pass, Niti Pass (5068 m), Tun-Jun-La,

Shalsal Pass, Balcha Dhura, Kungrinbingri Pass,

Lampiya Dhura, Mangsha Dhura, Marhi La (4993 m)

and Lipu Lekh.

4.The Central Himalayas – This range stretches

from river Kali to river Tista for about 800 km

occupying an area of about 1,16,800 sq. km). A major

part of it lies in Nepal except the extreme part called

Sikkim Himalayas and in the Darjeeling District of

West Bengal. All the three Ranges of the Himalayas

are represent here. The highest peaks of the world like

Mount Everest (8850 m), Kanchanjunga (8598 m),

Makalu (8481 m), Dhaulagiri (8168 m), Annapurna

(8075 m), Gosaithan (8014 m) are situated in this part

of the Himalayas. It has very few passes. The passes

of Nathu-La and Jelep-La (4538 m in Sikkim) connect

Gangtok (Sikkim) with Lhasa (Tibet, China)”

Learned counsel for the Commission has not been able to produce

any document or extract from books which may substantiate the case of

the Commission that Badrinath is situated in Central Himalaya. The

report of the Expert Committee is neither based on any book nor on the

location of Badrinath in relation to Himalaya. It is, therefore, evident that

the answer declared by the Commission at the initial stage that Badrinath

is located in Kumaun Himalaya is the correct answer. The Committee that

was subsequently constituted by the Commission to examine the

objections completely misdirected itself and without any supporting

material wrongly determined that Badrinath is located in Central

8

Himalaya. In the face of overwhelming evidence that has been brought on

record, we have no doubts that Badrinath is located in Kumaun Himalaya.

The next issue that has been raised by the petitioner is with regard

to two questions of Law (Second Paper)- 'C' Series, being question

Nos.10 and 21.

Question No.10 with its options is as follows;

“10. Under Indian Penal Code, 1860 the defence of

'Consent' is not available in cases of

(a) Consent to cause death

(b) Consent to cause grievous hurt

(c) Both (a) and (b)

(d) None of the above”

In regard to the aforesaid question, the correct answer indicated by

the Commission is option '(c)'. According to the petitioner, the correct

answer is option '(a)'. Objections had been invited and the Expert

Committee also maintained the earlier view that option '(c)' is the correct

answer. The defence of consent is not available in cases of consent to

cause death and consent to cause grievous hurt both and, therefore, option

'(c)' is the correct answer. The petitioner is, therefore, not justified in

contending that option '(a)' is the correct answer.

The petitioner has also assailed the answer to Question No.21 of

Law Paper. Question No.21 with its options is as follows:

“21. In a case of breach of terms on which injunction

was granted under Civil Procedure Code, 1908 the

Court may pass an order of

(a). attachment and sale of property,

(b). attachment of property and detention in civil

prison

(c). arrest and detention in civil prison for 3 months

(d). (a) and (c) both”

9

The correct answer initially published by the Commission to the

aforesaid question is option '(b)' and this was maintained even after the

objections. According to the petitioner, the correct answer is option '(d)'.

The answer declared by the Commission is correct because in a case of

breach of terms on which injunction was granted, the Court may pass an

order for attachment of the property and detention in civil prison. The

petitioner is, therefore, also not justified in asserting that option '(d)' is the

correct answer.

The issue before the Court is whether it would be appropriate for

the Court to interfere with the answers given by an Expert Body. Learned

counsel for the Commission has placed reliance upon the judgment of the

Supreme Court in H.P. Public Service Commission Vs. Mukesh

Thakur and another

2

and a Division Bench of this Court in Gulab

Chand Bharati Vs. U.P. Public Service Commission, Allahabad and

another

3

, to support his contention that the Court should restrain itself

from entertaining pleas regarding correctness of answers as it is for the

expert body like the Public Service Commission to determine them.

Learned counsel for the petitioner has, however, placed reliance

upon the decisions of the Supreme Court in Kanpur University, through

Vice-Chancellor and others Vs. Samir Gupta and others,

4

and Rajesh

Kumar and others Vs. State of Bihar and others

5

, to support his

contention that the key answers given by the expert body can be

examined by Courts on the basis of information contained in the text

2(2010) 6 SCC 759

3 2016 (2) ADJ 701 (DB)

4(1983) 4 SCC 309

5(2013) 4 SCC 690

10

books and other documents and that it would be unfair to penalize

students because of wrong key answers.

In the instant case, it needs to be emphasised that the preliminary

examination was an objective test in which one of the four options were

required to be marked by the candidates as the correct answer. Thus, the

answer would either be correct or wrong. It was not a subjective test

where different examiners may award different marks for the same

answer.

In Kanpur University (supra), the Supreme Court examined the

key answer to questions which were doubted by the candidates and

observed:

“16. Shri Kacker, who appears on behalf of the

University, contended that no challenge should be

allowed to be made to the correctness of a key

answer unless, on the face of it, it is wrong. 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. The

contention of the University is falsified in this case

by a large number of acknowledged text-books,

which are commonly read by students in U.P.

Those text-books leave no room for doubt that the

answer given by the students is correct and the key

answer is incorrect .

17.Students who have passed their Intermediate

Board Examination are eligible to appear for the

entrance Test for admission to the medical colleges in

U.P. Certain books are prescribed for the Intermediate

Board Examination and such knowledge of the

subjects as the students have is derived from what is

contained in those text-books. Those text-books

support the case of the students fully. If this were a

11

case of doubt, we would have unquestionably

preferred the key answer. But if the matter is

beyond the realm of doubt, it would be unfair to

penalise the students for not giving an answer

which accords with the key answer, that is to say,

with an answer which is demonstrated to be

wrong.”

(emphasis supplied)

In the instant case, we have seen that the key answer supplied by

the Commission to Question No.45 has been proved to be wrong not by

an inferential process of reasoning but it has clearly been demonstrated to

be wrong as no reasonable person well versed in that subject would

regard the answer given by the Commission to Question No.45 as correct.

Thus, when the matter is beyond any doubt, it would be very unfair

to penalise students, if they had opted for an answer, which is

demonstrated to be correct, but has not been found to be correct by the

Commission.

In Rajesh Kumar (supra), the Supreme Court examined an

examination, where 45 model answers out of 100 were found to be

incorrect but the list of selected candidates had already been sent to the

State Government for issuing appointment orders. The writ petitioners

had specifically averred that model key answer which formed the basis

for evaluation was erroneous. The High Court examined as to whether the

model answer was correct or not and the Supreme Court in this

connection observed that the High Court aptly examined the matter and,

on the basis of opinion of experts, found fault with the key answer. It,

therefore, upheld the view taken by the High Court that the result of the

12

examination was vitiated. The Supreme Court also observed that if the

result of the examination was vitiated by application of a wrong key

answer, any appointment made on the basis of such a key answer would

be unsustainable. However, as appointments had already been made and

such persons had worked for seven years, the Supreme Court protected

the appointments of such persons who had given wrong answers but

which was declared to be correct by the Examining Body and placed

them at the bottom of the select list. Persons whose answers were found

to be correct by the Court were given the benefit.

In H.P. Public Service Commission (supra), the dispute was with

regard to revaluation of answer sheets. It is as a result of revaluation that

the candidate secured 119 marks and, therefore, was found eligible to be

called for interview. This decision would, therefore, not help the

Commission. The High Court had found that there had been some

inconsistency in framing Question Nos.5 and 8 and in evaluation of the

answer to the said questions. The questions were not objective but subject

in nature. It is in this context that the Supreme Court observed that it was

not permissible for the High Court to re-examine question paper and the

answer sheet itself.

In Gulab Chandra Bharati (supra), the Expert Committee had

proceeded to delete four questions and marks were awarded on the basis

of a formula that had been determined by the Commission. The deletion

of these four questions was called in question. Since no material could be

13

placed by the petitioner to assail the finding of the Expert Committee, the

opinion of the Expert Committee was relied on by the Court.

In the present case, what needs to be noticed is that appointments

have not been made as yet and, as stated by the learned counsel, only

interviews are being held. It is on the basis of the marks declared by the

Commission in the preliminary examination that candidates were called

to appear at the main examination and they have been called for interview

on the basis of the marks awarded in the main examination.

It is clear from the aforesaid discussions that the Commission has

wrongly declared option '(b)' to Question No.45 of General Knowledge

C-Series paper of the preliminary examination to be correct, whereas the

correct answer is 'Kumaun Himalaya'. This error has resulted in the

preparation of an incorrect list prepared by the Commission for calling

candidates to appear at the main examination. The petitioner has appeared

at the main examination on the basis of the interim order passed in this

petition but his result has not been declared.

The issue before the Court is whether relief should be granted to

the petitioner alone or to all the candidates who had appeared at the

preliminary examination but had not been permitted to appear at the main

examination even though they may have secured sufficient marks if the

Commission had determined the correct key answer to Question No.45 of

General Knowledge 'C'-Series.

14

It is contended by the learned counsel appearing for the

Commission that only the petitioner should be granted the relief as other

candidates have not approached the Court.

In our considered opinion, it is the duty of the Commission to

award marks on the basis of a correct key answer. When large number of

candidates appear at an examination for seeking appointments and the

selection is very competitive, even one wrong answer to a question can

alter the fate of many candidates. The petitioner may be entitled to appear

at the main examination if he gets 301 marks because the answer to one

question is correct but the Commission has marked it wrong. There may

be number of candidates who could have appeared in the main

examination because of the correct answer given by them to Question

No.45 but which has been found to be incorrect by the Commission. We

are conscious that the main examination has already been held and

interviews are going on but it is also a fact that the final result has not

been prepared. It would be wholly unjust to deprive such candidates who

could not appear at the main examination for this reason. The purity in

the selection process has to be maintained. The mistake committed by the

Commission has to be rectified and the candidates who appeared at the

preliminary examination cannot be made to suffer because of the mistake

of the Commission. Such a course is being adopted as at present

appointment orders have not been issued and only interviews are being

conducted on the basis of the marks of candidates who had appeared at

the main examination and the criteria determined by the Commission. In

15

such circumstances, it is considered appropriate to direct that relief

should not be confined to the petitioner alone but to all the candidates

who had appeared at the preliminary examination.

The Court may have taken a different view in restricting the relief

to the petitioner alone if appointments had been offered after the

interviews and such persons had worked for some period of time. If any

mistake can be corrected before the appointment is made, it should be

corrected because candidates should not be made to suffer on account of

such discrepancy. In Rajesh Kumar (supra), the Supreme Court pointed

out that the High Court was justified in moulding the relief prayed for and

issuing directions considered necessary not only to maintain the purity of

the selection process but to also ensure that no candidate earned an

undeserved advantage over others by applicable of an erroneous key. The

observations of the Supreme Court are as follows:

“15. …...............The writ petitioners, it is evident, on a

plain reading of the writ petition questioned not only

the process of evaluation of the answer scripts by the

Commission but specifically averred that the “Model

Answer Key” which formed the basis for such

evaluation was erroneous. One of the questions that,

therefore, fell for consideration by the High Court

directly was whether the “Model Answer Key” was

correct. The High Court had aptly referred that

question to experts in the field who, as already

noticed above, found the “Model Answer Key” to

be erroneous in regard to as many as 45 questions

out of a total of 100 questions contained in ‘A’

series question paper. Other errors were also found

to which we have referred earlier. If the key which

was used for evaluating the answer sheets was itself

defective the result prepared on the basis of the

same could be no different. The Division Bench of

the High Court was, therefore, perfectly justified in

holding that the result of the examination insofar

16

as the same pertained to ‘A’ series question paper

was vitiated. This was bound to affect the result of

the entire examination qua every candidate

whether or not he was a party to the proceedings.

It also goes without saying that if the result was

vitiated by the application of a wrong key, any

appointment made on the basis thereof would also

be rendered unsustainable. The High Court was, in

that view, entitled to mould the relief prayed for in

the writ petition and issue directions considered

necessary not only to maintain the purity of the

selection process but also to ensure that no

candidate earned an undeserved advantage over

others by application of an erroneous key.”

(emphasis supplied)

It is in this context that the Supreme Court also observed that the

most natural and logical way for correcting the evaluation of the scripts

was to correct the key and get the answer scripts re-evaluated on the basis

thereof and there was no necessity of holding a fresh examination. Such a

process would also not give any unfair advantage to any candidate.

However, the Supreme Court protected the interest of the candidates who

had already been appointed and had worked for seven years and the

observations are :

“21. ............. It goes without saying that the appellants

were innocent parties who have not, in any manner,

contributed to the preparation of the erroneous key or

the distorted result. There is no mention of any

fraud or malpractice against the appellants who

have served the State for nearly seven years now.

In the circumstances, while inter-se merit position

may be relevant for the appellants, the ouster of

the latter need not be an inevitable and inexorable

consequence of such a re-evaluation. The re-

evaluation process may additionally benefit those

who have lost the hope of an appointment on the

basis of a wrong key applied for evaluating the

answer scripts. Such of those candidates as may be

ultimately found to be entitled to issue of

appointment letters on the basis of their merit shall

17

benefit by such re- evaluation and shall pick up

their appointments on that basis according to their

inter se position on the merit list.”

(emphasis supplied)

It also needs to be noted that only a very limited number of

candidates will be disturbed. Each question of General Knowledge paper

is of one mark only and only answers to two questions, one in this

petition and other in the connected petition bearing Writ Petition

No.57187 of 2015 (Rohit Nandan Shukla Vs. U.P.P.S.C. & Anr.), which

has also been decided by order of date, have been found to be incorrect.

It would, therefore, be just and proper for the Court to direct the

Commission to determine the marks of all the candidates, who had

appeared at the preliminary examination, on the basis of the correct

answer to Question No.45 of the General Knowledge 'C' Series paper. In

case, candidates who have not been able to appear at the main

examination but are found to be entitled to on the basis of a fresh

revaluation done by the Commission, the Commission would have to take

appropriate steps for conducting the main examination for such

candidates and consequently hold interviews, if they are entitled to be

called, in accordance with the marks awarded to them at the main

examination and the procedure and guidelines set out for this purpose.

The Commission need not hold the main examination or interviews for

the candidates who have already appeared at the said examination and are

found to be eligible to appear even after the declaration of the revised

result of the preliminary examination but if any candidate has appeared

and is not found to be eligible as he has not secured the requisite marks

18

after the revised result, his candidature can always be cancelled. The

main examination, it is reiterated, should be held only for such candidates

who now become eligible to appear at the main examination after

revision of marks in the preliminary examination but could not appear

earlier. This process should be undertaken at the earliest.

The writ petition, accordingly, succeeds and is allowed to the

extent indicated above.

Date:26.04.2016

SK

(Dilip Gupta, J.)

(Amar Singh Chauhan, J.)