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A.F.R.

Court No. - 39

Case :- WRIT - A No. - 57187 of 2015

Petitioner :- Rohit Nandan Shukla

Respondent :- U.P.P.S.C., Allahabad And Another

Counsel for Petitioner :- Anil Sharma

Counsel for Respondent :- Ajay Kumar, Mahendra Narain Singh

Ms. Meenakshi Singh

Hon'ble Dilip Gupta,J.

Hon'ble Amar Singh Chauhan,J.

The petitioner, who belongs to general category, responded to an

advertisement issued by the U.P. Public Service Commission

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inviting

applications for appointments of Civil Judges (Junior Division) in the

Uttar Pradesh Judicial Service.

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. The General Knowledge paper was of 150 questions carrying one

mark each, while the Law Paper also contained 150 questions but of two

marks each. Thus, the total marks of General Knowledge were 150 while

that of Law Paper were 300. The result of the preliminary examination

was declared on 29 September 2015.

The petitioner has challenged the key answers of the preliminary

examination of two questions namely, Question Nos. 52 and 73 in 'C'

1. the Commission

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Series of General Knowledge Paper. The Commission proposed four

options (a), (b), (c) and (d) for each of the 150 questions and the

candidates were required to select the correct option.

Initially, the key answers of the aforesaid two 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 for these questions 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 81

marks in the General Knowledge Paper and 219 marks in Law Paper.

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

general category was 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 passed in

this petition. The Court has been informed that now interviews are being

conducted.

The answers to the two questions, on which doubts have been

raised by the petitioner, are as follows:

“52. Consider the statements:

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Assertion (A) : The State Election Commission is

appointed by the State Government

Reason (R) : It has the responsibility of holding

elections to the Panchayati Raj institutions.

Select the correct answer using the codes given

below:

(a)Both (A) and (R) are true and (R) is the

correct explanation of (A).

(b) Both (A) and (R) are true, but (R) is not the

correct explanation of (A).

(c) (A) is true, but (R) is false.

(d) (A) is false, but (R) is true.

73. The largest Mica producing State in India is:

(a) Jharkhand

(b) Andhra Pradesh

(c) Madhya Pradesh

(d) Rajasthan”

In regard to Question No. 52, the Commission had initially

published the key answer declaring (d) as the correct answer, but on

certain objections having been filed by the candidates, the Commission

revised the correct answer to option (a). According to the petitioner, the

correct answer is option (d).

Likewise for Question No. 73, the Commission initially declared

option (a) as the correct answer, but on objections having been raised by

candidates who had appeared in the examination, the Commission revised

the answer to option (b). According to the petitioner, the correct answer is

option (a).

We have examined the matter on the basis of material submitted by

Shri Anil Sharma, learned counsel appearing for the petitioner, Shri M.N.

Singh, learned counsel for U.P. Public Service Commission and Ms.

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Meenakshi Singh, learned counsel for the State, who has very ably

assisted the Court in the proceedings.

We shall first deal with Question No. 52. Assertion (A) is that the

State Election Commission is appointed by the State Government. Reason

(R) is that it has the responsibility of holding elections to the Panchayati

Raj institutions. Initially, the Commission declared option (d) as the

correct answer, but later on revised it to option (a).

Article 243K (1) of the Constitution deals with the elections to the

Panchayats and is as follows:

“Art. 243K (1) The Superintendence, direction and

control of the preparation of electoral rolls for, and the

conduct of, all elections to the Panchayats shall be

vested in a State Election Commission consisting of a

State Election Commissioner to be appointed by the

Governor.”

Learned counsel for the Commission has not been able to place

before the Court any material to substantiate that the State Election

Commission is appointed by the State Government. The State Election

Commission is constituted under Article 243K of the Constitution and it

is not appointed by the State Government. The State Election

Commissioner is appointed by the Governor of the State. We also called

upon Sri Tarun Agarwal, learned counsel for the State Election

Commission to verify the correct facts from the State Election

Commission. Learned counsel, on instructions, has categorically stated

that the State Election Commission has not been appointed by the State

Government and that it has been constituted under Article 243K of the

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Constitution. The Commission had initially declared option (d) as the

correct answer, but later on declared option (a) as the correct answer. The

reason which has weighed with the Committee constituted by the

Commission to hold that option (a) is the correct answer is that 'State

Election Commission holds the responsibility of conducting election of

municipalities also'. The Expert Committee completely failed to examine

as to whether Assertion (A) is correct or not. Obviously if Assertion (A)

is incorrect, then option (a) cannot be the correct answer because it says

that both (A) and (R) are true. We, therefore, have no hesitation in

concluding that option (a) cannot be the correct answer because Assertion

(A) is evidently not correct. Option (d) of Question No. 52 states '(A)' is

false.

We shall now proceed to examine whether Reason (R) is true or

not. As Article 243K, which constitutes the State Election Commission,

provides that the superintendence, direction and control of the preparation

of electoral rolls for, and the conduct of, all elections to the Panchayats

shall be vested in a State Election Commission, 'Reason (R)' that the State

Election Commission has the responsibility of holding elections to the

Panchayati Raj institutions is, therefore, correct. Option (d) states '(R)' is

true.

The Expert Committee constituted by the Commission to examine

the objections filed by the candidates failed to examine the issue in its

correct perspective. It did not consider whether Assertion (A) is correct

and it mainly relied upon the answer to Reason (R).

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We, therefore, have no hesitation in concluding that option (d)

which was the correct answer initially published by the Commission is

the correct answer and the revision to option (d) as the correct answer on

the basis of certain objections, is not justified.

The next answer that has been assailed by the petitioner is the

answer to Question No. 73. According to the Commission, the largest

Mica producing State in India is Andhra Pradesh, while according to the

petitioner, it is Jharkhand. In this connection, it again needs to be noted

that initially the Commission declared Jharkhand as the correct answer,

but subsequently revised it to Andhra Pradesh.

In view of the conflicting versions placed before the Court by the

learned counsel for the petitioner and learned counsel for the

Commission, we called upon Shri Krishna Agarwal, learned counsel

appearing for the Central Government to seek information from the

Ministry of Indian Bureau of Mines, Government of India. Learned

counsel has placed before the Court the communication dated 25 April

2016 sent by the Director (S) in the Ministry of Mines, Indian Bureau of

Mines, Government of India, which is as follows:

“1) This office receives returns of minerals covered under

MCDR, 1988 in specified format. Based on the information

received in the returns, the state-wise production details of

crude Mica and Waste & Scrap Mica during 2010-11 to

2014-15 (P) is given below:

State-wise Production of Mica

(Quantity in tonnes)

Mineral State 2010-112011-122012-132013-142014-15

(P)(@)

Mica (Crude)India 1333189912561660 636

Mica (Crude)Andhra 1317178411771660 636

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Pradesh*

Mica (Crude)Bihar 0 0 0 0 0

Mica (Crude)Jharkhand0 1 0 0 0

Mica (Crude)Rajasthan16 114 79 0 0

Mica(waste

& Scrap)

India 731114186162551975211852

Mica (waste

& Scrap)

Andhra

Pradesh*

46487313741576267644

Mica (waste

& Scrap)

Bihar 14594632293933811378

Mica (waste

& Scrap)

Jharkhand0 0 782 2110 0

Mica (waste

& Scrap)

Rajasthan12042241511966352830

(P): Provisional: Source MCDR Returns: *: refers to the erstwhile

Andhra Pradesh for 2010-11 to 2013-14 and refers to the newly formed

Andhra Pradesh for 2014-15 @: upto January 2015.

It can be seen that Andhra Pradesh is the leading producer of

Mica (Crude) and Waste & Scrap Mica during the last few

years. Though Telangana was formed in June 2014, the

production was reported only from the mines located in the

newly formed Andhra Pradesh.

2) Subsequent to the release of IMYB 2013, this office has

released the Indian Mineral Year Book 2014 which contains

the production details of 2011-12, 2012-13 and 2013-14 (P).

Monthly Statistics of Mineral Production for March 2015

which contains the revised date for 2013-14 and provisional

date for 2014-15 was also released thereafter.

3) Vide notification GSR 423 (E) dated 10.02.2015, Mica

has been declared as minor mineral and hence the production

details for Mica is available till January 2015 for the year

2014-15.”

Learned counsel has also placed before the Production of Mineral

in March 2015 (excluding Atomic Minerals and Minor Minerals). Page

11 thereof deals with Mica. Both with regard to Mica (crude) and Mica

(waste and scrap), it states that Andhra Pradesh is the leading State in the

Country in the production of Mica.

Thus, from both the documents, it is more than apparent that it is

Andhra Pradesh, even after bifurcation into Telangana and Andhra

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Pradesh, that is the largest Mica producing State in the country. Thus, the

answer declared by the Commission is correct.

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

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and a Division Bench of this Court in Gulab

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

another

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, 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,

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and Rajesh

Kumar and others Vs. State of Bihar and others

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, 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

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

2(2010) 6 SCC 759

3 2016 (2) ADJ 701 (DB)

4(1983) 4 SCC 309

5(2013) 4 SCC 690

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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

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)

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

the Commission to Question No.52 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.52 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

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

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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

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

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

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

We have concluded that the answer to Question No. 52 of General

Knowledge 'C' Series has wrongly been determined by the Commission.

This error has resulted in the preparation of an incorrect list prepared 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.52 of

General Knowledge 'C'-Series.

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

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be number of candidates who could have appeared in the main

examination because of the correct answer given by them to Question

No.52 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

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

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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

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

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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

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.58554 of 2015 (Anurag Tripathi Vs. U.P.P.S.C. And 2 Others), 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

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

answer to Question No.52 of the General Knowledge 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 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.

Order Date :- 26.4.2016

Ishrat/SK

(Amar Singh Chauhan, J.) (Dilip Gupta, J.)