Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : UPHESC Directed To Reevaluate Answer Sheets Applying Correct Option And Declare Result Afresh For Selection To Post Of Lecturers. Judgment/Order - WRIT - A No. 12344 Of 2017 Judgment/Order Dated - 28/4/2017 At Allahabad.
JUDGEMENT TITLE : Niraj Kumar Singh Vs. State Of U.P. And 2 Others On 04/28/2017 By Allahabad High Court
CASE NO : WRIT - A NO. 12344 OF 2017
CORAM : Hon'ble Vikram Nath,J. And Hon'ble Daya Shankar Tripathi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 37

Case :- WRIT - A No. - 12344 Of 2017
Petitioner :- Niraj Kumar Singh
Respondent :- State Of U.P. And 2 Others
Counsel For Petitioner :- Ramakant Singh
Counsel For Respondent :- C.S.C.,Archana Singh,Pragya Pandey
with
Case :- WRIT - A No. - 9069 Of 2017
Petitioner :- Ratan Kumar Patel
Respondent :- State Of U.P. And 10 Others
Counsel For Petitioner :- Rekha Singh,Anshul Nigam,Pankaj Saksena
Counsel For Respondent :- C.S.C.,Archana Singh,Pragya Pandey,Seemant Singh

Hon'ble Vikram Nath,J.
Hon'ble Daya Shankar Tripathi,J.
Both The Above Petitions Raise Common Question Of Law And Similar Facts As Such Have Been Taken Up Together. They Also Relate To The Same Examination Conducted By The Same Examining Body As Such Also It Is Convenient To Deal With Both The Petitions By This Common Order.
Facts In Brief Relating To Writ-A No.12344 Of 2017, (Niraj Kumar Singh Vs. State Of U.P. And Two Others) Are As Follows:-
The U.P. Higher Education Service Commission (in Short Referred To As The "Commission") Respondent No.3 Published An Advertisement No.46 Dated 19.03.2014 Inviting Applications For The Post Of Lecturers In Different Subjects For Different Aided Degree/Post-graduate Colleges In The State Of U.P. The Advertisement Has Been Filed As Annexure No.1 To The Writ Petition. The Petitioner Applied Against The Said Advertisement Under The General Category For The Post Of Lecturer In Geography. The Written Examination Was Scheduled For 22nd March, 2015. The Petitioner Appeared In The Examination And Was Allotted Question Booklet Series-(B) For The Subject Of Geography. The Answer Key Was Uploaded By The University And Objections Were Invited To The Same. The Petitioner Submitted Objections Against Two Questions Namely Question Nos.4 And 63. Question No.4 Related To General Knowledge Whereas Question No.63 Related To The Subject I.e. Geography. It Would Be Worthwhile To Mention Here That The Questions Of General Knowledge Were Same� For All The Subjects Whereas Subject Questions Were Different� For Each Subject. Before Us The Petitioner Has Pressed Only Insofar As His Objection To Question No.4 Is Concerned, Which Related To General Knowledge And It Was Common For All Subjects. Question No.4 Reads As Follows:-
Q.4. Who Is The Brand Ambassador Of BSNL (Bharat Sanchar Nigam Limited) ?
(a) Abhishek Bachchan.
(b) Amitabh Bachchan.
(c) Deepika Padukone.
(d) None Of The Above.
According To The Petitioner On The Date Of The Examination I.e. 22nd March, 2015, The Correct Answer Was None Of The Above Option-(d). According To The Commission The Correct Answer Was Deepika Padukone Option-(c).
According To The Petitioner Earlier Deepika Padukone [option-(c)] Had Been Engaged As Brand Ambassador Of B.S.N.L. On 17th August, 2008 For A Period Of One Year And Thereafter It Was Dayanidhi Maran Who Had Been Signed By The B.S.N.L. As Its Brand Ambassador W.e.f. 24.01.2015. Thus, According To The Petitioner On The Date Of Examination I.e. 22nd March, 2015 It Was Dayanidhi Maran Who Was The Brand Ambassador Of B.S.N.L. And Since Dayanidhi Maran Was Not Named As An Option, The Correct Answer Would Be None Of The Above-option-(d).
According To The Petitioner He Had Given The Correct Answer I.e. Option-(d) I.e. None Of The Above As Such He Would Be Entitled To Two Marks Having Attempted The Correct Answer. The Objection Of The Petitioner Apparently Was Not Accepted. He Qualified The Written Test And Was Called For Interview. The Final Result Of The Successful Candidates Was Declared On 8th February, 2017 In Which The Petitioner Was Not Shown As A Selected Candidate In The Select List And He Was Placed At Serial No.3 In The Waiting List.
According To The Petitioner He Has Obtained 0.5 Marks Less Than The Last Selected Candidate In The General Category And As Such, If He Is Allotted Two Marks For The Correct Answer Of Question No.4, He Would Fall In The Select List.
Facts In Brief Relating To Writ-A No.9069 Of 2017, (Ratan Kumar Patel Vs. State Of U.P. And 10 Others) Are As Follows:-
The Petitioner Had Applied For The Post Of Lecturer In Law Under The Category Of Other Backward Class. He Was Given Series-A Booklet. This Petitioner Had Raised An Objection With Regard To Question No.94 Which Is Of The Subject I.e. Law. The Question Reads As Follows:-
Q.94. The Sexual Intercourse By A Man With A Woman With Her Consent Would Not Be Rape, If She Has Attained The Age Of :
(a) 15 Years.
(b) 16 Years.
(c) 17 Years.
(d) 18 Years.
According To The Petitioner, The Correct Answer Is Option-(d) : 18 Years After The Criminal Law Amendment Act, 2013 Whereas The Commission In Its Answer Key Had Uploaded Option-(b) : 16 Years As The Correct Answer. Petitioner Had Filed His Objections. The Petitioner Also Qualified The Written Examination And Was Called For Interview. The Final Result Of The Selected Candidates Was Declared On 25.01.2017 In Which The Petitioner Has Been Shown To Have Secured 167.72 Marks Whereas The Last Selected Candidate In The OBC Category Has Secured 167.97 Marks That Shows A Difference Of Only 0.25 Marks. Petitioner Was Placed At Serial No.4 Of The Combined Waiting List And At Serial No.1 In The Waiting List Of OBC Category. According To The Petitioner, He Had Attempted The Correct Answer I.e. Option-(d) : 18 Years But Has Not Been Awarded 2 Marks For The Right Answer. In Case, These 2 Marks Are Awarded, The Petitioner Would Be Included In The Final Select List Of OBC Category.
In Both The Writ Petitions We Had Granted Time To The Learned Counsel For The Commission To Obtain Instructions. From The Instructions It Is Apparent That The Facts As Narrated In The Petition Are Correct And Are Not Disputed. In Writ Petition No.9609 Of 2017 Which Was Filed Earlier At Point Of Time We Had Also Required The Learned Counsel For The Respondent-Commission To Inform The Court As To What Would Be The Effect Of Directing Re-evaluation Treating Option-(d) As The Correct Answer Of Question No.94 Of Series-A Booklet Of Subject Law And Also The Effect Of Fresh Preparation Of The Result Of Lecturer-Law After Deleting Question No.94 And Then Preparing The Merit List. The Commission Filed An Affidavit Sworn On 11th April, 2017 In Which It Was Suggested That There Would Be Lesser Disturbance In Getting A Fresh Result Prepared By Deleting Question No.94 Rather Than Re-evaluating By Treating Option-(d) As The Correct Answer. We Will Deal With This Aspect Of The Matter At A Later Stage.
However, For The Reasons Recorded In This Order We Are Not Accepting The Suggestions Given By The Commission But Are Proceeding To Direct For Re-evaluating The Answer-sheet Of Subject Law Treating Option-(d) As The Correct Answer Of Question No.94 Of Series-A Booklet.
We Have Heard Sri Ashok Khare, Learned Senior Advocate Assisted By Sri Ramakant Singh, Learned Counsel Representing The Petitioner In Writ-A No.12344 Of 2017, Sri Pankaj Saxena, Learned Counsel Representing The Petitioner In Writ-A No.9069 Of 2017, Learned Standing Counsel For The State-respondents Smt. Archana Singh, Learned Counsel Representing Respondent-Commission In Both The Writ Petitions, Sri V.K. Singh, Learned Senior Advocate Assisted By Ms. Pragya Pandey, Learned Counsel For The Respondent No.9 In Writ-A No.9069 Of 2017 And Sri Seemant Singh, Learned Counsel Representing Respondent Nos.4 To 7, 10 And 11 In Writ-A No.9069 Of 2017.
The Main Objection Raised By The Learned Counsel For The Respondents Is With Regard To The Delay Caused By The Petitioners In Filing The Writ Petition. The Second Objection Raised Is To The Effect That The Petitioners Having Accepted The Final Answer Key Rejecting Their Objections To The Initial Answer Key And Appearing In The Interview And Thereafter Having Not Been Selected In The Final List, They Are Now Estopped From Filing The Present Petitions As The Same Is Barred By Principle Of Estoppel And Acquiescence. Another Ground Taken Is That The Commission Took Expert Opinion And It Being Bound By The Expert Opinion Had No Choice But To Accept The Same. It Is Also Submitted By The Learned Counsel For The Commission That As The Final Results Have Been Declared And List Of Selected Candidates Has Been Forwarded To The State Government It Has No Further Ole To Play And It Cannot On Its Own Take Up The Task Of Reevaluation.
Learned Standing Counsel Has Adopted The Arguments Advanced On Behalf Of The Commission And Private Respondents.
There Is No Objection By The Respondents With Regard To The Correct Answers As Stated By The Petitioners.
On The Other Hand, The Petitioners Submitted That Purity Of Competitive Examination Has To Be Maintained At All Costs. The Commission Cannot Take Lame Excuse Of Delay And Estoppel For Their Own Fault And Also Cannot Shift Their Burden Of Not Looking Into The Correct Answers And Approving Them Merely On The Advise Of The Expert Committee, Which Had Suggested That Wrong Answers Were Correct. More Meritorious Candidate Needs To Be Selected And Cannot Be Made To Suffer For The Fault Of The Commission.
Learned Counsel For The Petitioners Relied Upon The Following Decisions In Support Of Their Submissions:-
(1) Vikas Pratap Singh And Others Vs. State Of Chhatisgarh And Others, (2013) 14 SCC 494.
(II) Rajesh Kumar And Others Vs. State Of Bihar And Others, (2013) 4 SCC 690.
(III)�Judgment And Order Dated 26.04.2016 Passed By This Court In Writ-A No.57187 Of 2015 Rohit Nandan Shukla Vs. U.P.P.S.C., Allahabad And Another.
On The Other Hand, Learned Counsels For The Respondents Have Relied Upon The Following Decisions:-
(I)��� Madras Institute Of Development Studies And Another Vs. K. Sivasubramaniyam And Others, (2016) 1 SCC 454.
(II)� Judgment And Order Dated 21.10.2016 Passed By The Supreme Court In Civil Appeal No.9092 Of 2012, (Ashok Kumar And Another Vs. State Of Bihar And Others).
(III) Judgment And Order Of This Court Dated 29.07.2016 Passed In Special Appeal No.24 Of 2012 Banaras� Hindu University And Another Vs. Sri Krishna Rai And Others.
We Now Deal With Each Of The Cases Relied Upon.
Cases Relied Upon By The Petitioner's Counsel.
In Vikas Pratap Singh And Others Vs. State Of Chhattisgarh And Others (supra), A Set Of Eight Questions And Model Answers Of Another Set Of Eight Questions Found Incorrect And It Was Held By The Apex Court That No Illegality Can Be Said To Have Crept In If Irregularities In Evaluation Are Corrected By Re-evaluation And Undeserving Select Candidates Identified And Replaced With Deserving Candidates.
In Rajesh Kumar And Others Vs. State Of Bihar And Others (supra), Matter Of Answer Sheets Evaluated On Basis Of Erroneous Model Answer Key Was Involved And It Was Held By The Apex Court That Proper Relief Is To Direct Re-evaluation Of Answer Sheets With Correct Answer Key.
In Rohit Nandan Shukla Vs. U.P.P.S.C., Allahabad And Another (supra), The Matter Of Evaluation On Basis Of Wrong Answer Key Was Involved And It Was Held By The Division Bench Of This Court That It Is The Duty Of The Commission To Award Marks On The Basis Of A Correct Answer Key. Relevant Portion Of The Judgment Is Reproduced Below:
"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."
Cases Relied Upon By The Respondent's Counsel.
In Madras Institute Of Development Studies And Another Vs. K. Sivasubramaniyan And Others (supra), It Has Been Held By The Apex Court That It Is Now Well Settled That If A Candidate Takes A Calculated Chance And Appears At The Interview, Then, Only Because The Result Of The Interview Is Not Palatable To Him, He Cannot Turn Round And Subsequently Contend That The Process Of Interview Was Unfair Or The Selection Committee Was Not Properly Constituted.
In Ashok Kumar And Another Vs. State Of Bihar And Others (supra), Selection Process Challenged On The Ground That The Appointment Process Was Vitiated Since Under The Relevant Rules, The Written Test Was Required To Carry Eighty Five Marks. After Considering The Matter, It Has Been Held By The Apex Court That It Was Not Open To The Appellants After Participating In The Selection Process To Question The Same, Once They Were Declared To Be Unsuccessful.
In Banaras Hindu University And Another Vs. Sri Krishna Rai And Others (supra), It Has Been Held By The Division Bench Of This Court That When Petitioners Participated In The Interview And No Protest Has Been Lodged By Them At The Said Point Of Time, They Can Not Challenge The Selection Proceedings On The Ground That The Same Is Not At All In Consonance With The Statutory Provision.
In The Present Case, Answer Sheets Have Been Examined On The Basis Of Wrong Answer Key. It Is Not The Case Of The Petitioner That Any Procedural Illegality Has Been Committed By The Respondents, In The Selection Process. We Are Of The Considered View That The Law Laid Down In The Aforesaid Cases Of Vikas Pratap Singh (supra), Rajesh Kumar (supra) And Rohit Nandan Shukla (supra) Are Fully Applicable To The Facts And Circumstances Of This Case.
Whereas In Cases Of Madras Institute Of Development Studies And Others (supra), Ashok Kumar And Another (supra) And Banaras Hindu University And Another (supra) Relied Upon By The Respondents The Matter Of Procedural Illegality Involved In The Selection Process Was Under Challenge Hence, The Aforesaid Case Laws Are Not Applicable To The Facts And Circumstances Of This Case.�
From The Above Facts And Circumstances And The Legal Position As Discussed Above The Following Situation Emerges.
(i) In This Highly Competitive World Today What To Say Of One Mark Even A Fraction Can Alter The Fate Of A Candidate.
(ii) Purity Of Examination Has To Be Strictly Maintained. Re-evaluation Of Correct Answers Is The Right Method To Prepare The Final Result.
(iii) More Meritorious Candidate Needs To Be Selected Over And Above The Less Meritorious Candidate. A Less Meritorious Candidate Cannot In Any Way Be Given Preference Or Priority Or Any Other Kind Of Advantage By Taking A Technical Plea To Non-suit A More Meritorious Candidate.
(iv) Merely Because Deletion Of A Question And Then Evaluating� Would Be An Easier Task And Would Affect Less Number Of Candidates This Suggestion Cannot Be Accepted. The Only Correct Remedy Is To Re-evaluate The Answer-sheets And Award Marks To The Correct Answer And Accordingly Prepare The Result Afresh.
(v) In The Present Case, None Of The Selected Candidates Have Been Given Appointment As Such Rights Of None Of The Selected Candidates Can Be Said To Be Affected And Therefore No Notice Need Be Issued To The Selected Candidates Whose Result Could Be Affected. It Is The Fault Of The Commission In Not Correctly Evaluating The Answer-sheets And Therefore The Commission Itself Is The Appropriate Authority To Correct Its Own Mistakes By Getting The Answer-sheets Re-evaluated On The Two Questions Mentioned Above.
(vi) The Petitioners Had Objected To The Wrong Answer Displayed By The Commission In The Model Answer Uploaded On The Website And Therefore It Cannot Be Said That The Petitioners Were Careless Or Negligent.
(vii) The Objection Taken By The Respondent-Commission And The Learned Counsel For The Private Respondents That This Petition Suffers From Laches/delay/principle Of Estoppel And Acquiescence Cannot Be Accepted For The Reason That The Commission For Its Own Mistakes Cannot Get Away On Hyper Technical Objections And Play With The Life And Fate Of More Meritorious Candidates.
(viii) Both The Petitioners Are Losing Their Selection By Fraction Of Marks. They Have Attempted The Right Answer. It Would Be Unjust To Non-suit Them On Hyper Technical Grounds. They Are More Meritorious And Deserve To Be Selected Over And Above The Candidates Who Had Given Wrong Answers And Have Been Selected.
(ix) The Objection Taken By The Respondent-Commission That It Has Already Forwarded The Result To The State Government As Such It Cannot Proceed Any Further In The Matter And Has Become Funtus Officio Cannot Be Accepted. The Examining Body Is The Commission And It Is The Commission And Commission Alone Which Has To Correct Its Mistakes. The State Government Has Still Not Issued Any Appointment Letters. The State Will Not Have Any Role To Play In The Re-evalution As It Is The Commission Which Has Conducted The Examination.
For All The Reasons Recorded Above Both The Writ Petitions Succeeds And Are Allowed. Writ Of Mandamus Is Issued To The Respondent U.P. Public Service Commission To Get The Answer-sheets Of All The Candidates Re-examined/re-evaluated Treating Option-(d) Of Question No.4 Of General Knowledge Of Series-B Question Booklet And Declare The Result Accordingly And Also Re-evaluate The Answer-sheets Of The Candidates Who Are Applicants For The Post Of Lecturer In Law By Treating Option-(d) As The Correct Answer Of Question No.4 Of Series-A Question Booklet And Thereafter Declare The Result. Any Candidate Who Is Now Selected On The Basis Of This Re-evaluated Result And Has Not Been Interviewed Will� Be Interviewed Afresh And Thereafter Final Results Be Published.
It Is Further Provided That Till Such Time The Commission Carries Out The Exercise As Directed Above And Declares Final Result Afresh, The State Government Shall Not Proceed In The Matter Of Issuing Appointment Letters. It Would Be In The Interest Of The Commission,� The State And Also The Candidates That The Exercise For Re-evaluation As Directed Above Is Taken Up At The Earliest And The Commission Would Be Well Advised To Conclude The Fresh Exercise And Declare The Final Result Afresh As Soon As Possible.
Writ Petitions Are Allowed As Above

Go to Navigation