Jyotika Nagil & Ors. v. The State of Haryana & Ors.

in the writ petitions alongwith the options given and the key answers are, thus, stated to be not correct on the basis of reference made to some text books. Some of the questions related to correction of sentences or based on the grammar and question marks are raised over the correct answers given in the key answers on the basis of some text books or the grammar books. Making reference to 10 questions, the petitioners have made an attempt to demonstrate that the key answers to these questions were wrong and accordingly the action of the respondents in failing the petitioners can not be sustained. It is pleaded that had the answers been given correctly in the key answers, the petitioners would have obtained the cut off marks for passing the test. The plea accordingly is that the respondents having committed this wrong would be under duty to give grace marks for the wrong answers and if that is done, all the petitioners would qualify in the test. The prejudice that has resulted to the petitioners on this count is that they are not in a position to apply for posts of JBT Teachers, which were advertised and for which the applications were to be submitted by

24.6.2010. It is, therefore, prayed to carry out correction and to declare the result accordingly. A short reply is filed on behalf of the Commission. Reply in detail is filed by respondent No.2. While responding to the plea that wrong answers have been given to 12 questions in the key, it is stated that the answering respondents had sought a report about the answers from the respective subject experts with regard to correct Civil Writ Petition No. 7232 of 2010 :{ 5 }: option and in this regard has placed the report on record as Annexure R2/1. As per the report, the option given to all these questions is termed as correct. The respondents would accordingly plead that the submission that the key answers are not correct is falsified in view of the report given by the subject experts. A detail mention is also made to the correct answers as given in the key to justify the same. An example in this regard is relating to question No.68 concerning the establishment of legislative council. As per the petitioners, the correct answer is Article 168, which was not given as an option in the key answers. However, as per the expert, Article 171 of the Constitution deals with the composition of the legislative council and not Article 168, which deals with constitution of legislature. Accordingly, prayer is made for dismissing the writ petitions. What is the scope of interference by writ court in such like cases would be the first question that will arise in this case at the outset. Counsel for the petitioners were at their vehement best to urge that the Court can interference in such like matters in exercise of writ jurisdiction to correct the error. The State counsel, however, was at total variance with this submission and would plead that the Court would exceed in its jurisdiction if it interfered in the matter by opining that the key answers given by the paper setter are wrong either on its own knowledge or on assumption or by relying on some text books or by adopting some such course, which would surely be beyond the scope of writ jurisdiction. In support of the respective stands, the counsel have Civil Writ Petition No. 7232 of 2010 :{ 6 }: made reference to some of the judgments. Very heavy reliance is placed by counsel for the petitioners on the case of Kanpur University and others Vs. Samir Gupta an others, AIR 1983 Supreme Court 1230. In this case, the Supreme court had held the students entitled to admission after re-evaluation of answer sheets in view of the errors and going through the key answers to the question papers after finding that the students answering correctly, could not be failed. This Court had the occasion of considering the ratio of law laid down in Kanpur University's case (supra), while deciding Civil Writ Petition No.15781 of 2010 (Virender Sharma and others Vs. State of Haryana and others). It is observed that controversy in this case arose mainly because of question being in the language of Hindi and English and the contention of the students was that correct answer to Hindi version of the question did not carry the same sense and one is not the exact translation of the other. The Hon'ble Supreme Court has observed that the Judges of the High Court, while deciding the case, have gone into the linguistic niceties and have accepted the contention of the students that there was a marked difference in the English and Hindi versions of some of the questions. Noticing the plea raised in this case, the Hon'ble Supreme Court observed that the finding of the High Court raised a question of great importance to the student community. It is further observed that normally one would be inclined to view especially if one has been a paper setter and an examiner, that the key answers furnished by the paper setter and accepted by the University as correct, should not be Civil Writ Petition No. 7232 of 2010 :{ 7 }: allowed to be challenged. It is further noticed that if the University had not published the key answers alongwith the result of the test, no controversy would have arisen in this case. Though the Court did not find this to be the correct approach, as future of hundred of students who were aspirants for admission to professional courses was involved, still the Hon'ble Court had approved the contention raised by the counsel appearing for the University to the effect that no challenge should be allowed to be made to the correctness of the key answers, unless, on the face of it, it is wrong. This can be so noticed from the following observations made by the Hon'ble Supreme Court while dealing with this limb of the submission made by counsel for the University in the case of Kanpur University (supra):- “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 man well-versed in the particular subject would regard as correct.”. The Hon'ble Supreme Court, however, interfered in this case in the peculiar facts of the case where there was some fault in the translated version of the questions in Hindi. The legal position otherwise is well established, as is noticed by the Hon'ble Supreme Court, that the key answer should be assumed to be correct and that these should not be held to be wrong by inferential process of reasoning or by a process of rationalisation. Civil Writ Petition No. 7232 of 2010 :{ 8 }: Counsel for the petitioners had then made reference to a decision of the Single Bench of this Court in CWP No.14553 of 2010 (Surender Singh Vs. Haryana Public Service Commission and another) decided on 13.9.2010. No doubt, issue in this case arose in regard to the correctness of the answers provided in the key answers and the Court had considered the same and had issued some directions for carrying out corrections in the result. However, the learned Single Judge, after considering the ratio of law laid down in Kanpur University's case (supra) and a recent decision of the Hon'ble Supreme Court in Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another, (2010) 6 SCC 759, has culled out a ratio of law that would emerge and it is noted as under in Para 43 of the judgement:- “Considering the impact of the two judgments noticed above, I am of the considered opinion that providing selection process is the function of the statutory authority and the said process should be left to the authority. In such circumstances, this Court would not transpose its' opinion so as to substitute the correct answers in the `Answer Key'. Ultimately, the learned Single Judge went on to issue direction to constitute a Committee, which was required to consider the questions given out and the answers provided in the key answers in the context of arguments addressed by the counsel. Directions were also issued for re-drafting the papers of the candidates and for re-checking and preparing a new merit list. Such a direction in the Civil Writ Petition No. 7232 of 2010 :{ 9 }: light of law culled out by learned Single Judge would have to be considered in the context of facts emerging in that case. In any case, the High Court had filed an appeal against this judgment and the Division Bench, by way of an interim order, had held as under:- “In view of the above, it is ad-interim directed that in respect of Question No.99 of Booklet Series `A', the answer key be rectified and the answer sheets are required to be evaluated accordingly, as stated above. Question No.30 of Booklet Series `A' be deleted and then evaluate the answer sheets. After carrying the above exercise, the result may be declared and put on the website of the High Court forthwith.” Thus, the view of the Single Judge was not fully upheld by the L.P.A. Bench. Ultimately, the appeal filed by the High Court was rendered infructuous and, thus, the judgment of the learned Single Judge can not be said to have acquired finality or considered to be of a binding precedent. The scope of interference by writ court in such like matters has recently been considered by the Hon'ble Supreme Court in Himachal Pradesh Public Service Commission's case (supra) and this, in my view, would be a binding precedent for the Courts to follow. It may not be possible for the Courts to take any different view than what is expressed in this case. The Hon'ble Supreme Court has held that court cannot take upon itself task of examiner or Selection Board and examine discrepancies and inconsistencies in the Civil Writ Petition No. 7232 of 2010 :{ 10 }: question papers and evaluation thereof. It is further observed that it is not possible for the High Court to examine question papers and answer sheets itself, particularly, when the State Public Service Commission had assessed inter se merit of the candidates. The Supreme Court was dealing with recruitment to the judicial service wherein the High Court has directed the Commission to produce the answer sheets before it and after going through the answer sheets had directed the Commission to arrange special interview for the candidate after forming a view that there had been some inconsistency in framing two questions and in evaluation of the answer to said question. Against this order passed by the High Court, the Himachal Pradesh Public Service Commission had approached the Supreme Court when operation of this order was stayed by the Supreme Court. During the pendency of the appeal, the High Court had directed the Commission to send the answer sheets of the candidates to another examiner holding the rank of Reader in law in Himachal Pradesh University for revaluation. This order was again challenged before the Hon'ble Supreme Court. The examiner so appointed by the High Court had awarded some different marks to the candidate on the basis of which the High Court had disposed of the writ petition directing the Commission to issue appointment letter to the candidate. The Hon'ble Supreme Court got the said answer sheet evaluated from another eminent professor of law with the consent of the parties, who awarded only 82 marks to the candidate against 119 awarded by an examiner detailed by High Court. Submission was Civil Writ Petition No. 7232 of 2010 :{ 11 }: also made that there was no provision of revaluation or re-checking of the answer sheets and the comparative merit of the candidate was to be assessed on the basis of questions as posed and if there was some inconsistency in framing of the questions/marking of particular question, it would be the same in case of all the candidates and, therefore, it was not permissible for the court to direct revaluation of the answer sheets of a particular candidate. The Hon'ble Supreme Court on the basis of pleas raised before it, formulated three basic questions, which arose for consideration before this court and these were as under:- (i) As to whether it is permissible for the court to take the task of examiner/Selection Board upon itself and examine discrepancies and inconsistencies in the question papers and evaluation thereof? (ii) Whether the court has the power to pass a general order restraining the persons aggrieved to approach the court by filing a writ petition on any ground and depriving them of their constitutional rights to approach the court, particularly, when some other candidates had secured the same marks i.e. 89 and stood disqualified for being called for interview but could not approach the court? (iii) Whether in the absence of any statutory provision for revaluation, the court could direct for revaluation? After making reference to large number of precedents, the Hon'ble Supreme Court has held that it is the settled legal Civil Writ Petition No. 7232 of 2010 :{ 12 }: proposition that the court cannot take upon itself the task of statutory authorities. In this regard, reference is made to Hindustan Shipyard Ltd. V. Dr. P.Sambasiva Rao, (1996) 7 SCC 499, Govt. of Orissa V. Hanichal Roy, (1998) 6 SCC 626, LIC Vs. Asha Ramchhandra Ambekar, (1994) 2 SCC 718 and A. Umarani Vs. Coop. Societies, (2004) 7 SCC 112. Having so observed, the Hon'ble Supreme Court finally has held as under:- “In view of the above, it was not permissible for the High Court to examine the question papers 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 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”. The Hon'ble Supreme Court has also observed that the issue of revaluation of answer book is no more res integra. Reference is made to the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 to observe that the Civil Writ Petition No. 7232 of 2010 :{ 13 }: Supreme Court had rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by this court. It was observed that even the policy decision incorporated in the Rules/ Regulations not providing for rechecking/ verification/ revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. 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. As has been held, 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 drawbacks in the policy incorporated in the rules or regulations would 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 a prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. Thus, the law on the subject, which would emerge from these judgments is to the effect that in the absence of any provision or statutory rules/regulations, the court should not generally direct revaluation. The law, thus, can be summed up to say that the Courts can not take on the role of examiner or the evaluator or that of the Civil Writ Petition No. 7232 of 2010 :{ 14 }: Selection Board to examine discrepancies either in the question papers or the answer sheets. Courts can not also examine the question paper or the answer sheet itself. Obviously, if the Courts would start doing so, they would assume the role of examiner, paper setter and evaluator, which is to be left to the expert body. It is with reason and purpose that the courts are to assume the answer given in the `key answer' to be correct. Any interference in this regard would tend to make them to take on the role of paper setter, which would be beyond the purview of judicial review. As is well understood, the judicial review generally speaking is not directed against a decision but is directed against the `decision making process'. Any exercise to observe that a particular question is discrepant or the answer in the key answer is not correct, would tend to be going beyond the permissible grounds of judicial review. As observed in the case, of Public Utilities Commission of the District of Columbia Vs. Pollak, (1951) 343 US 451, the judicial process demands that a Judge moves within the frame work of relevant legal rules and the covenanted modes of thought for ascertaining them. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. In the background of law, as would emerge from the authoritative pronouncements of the Hon'ble Supreme Court in Himachal Pradesh Public Service Commission's case (supra), no Court, in my considered opinion, would be justified to take the task of examiner/Selection Board upon itself to examine discrepancies and inconsistencies in the question paper and the evaluation thereof. Civil Writ Petition No. 7232 of 2010 :{ 15 }: The scope of judicial review is well defined and on the basis of this, the Hon'ble Supreme Court has categorically held that it is not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. As observed by the Court, if there was any discrepancy in framing the questions or evaluation of the answers, it could be for all the candidates and not for the particular person who is the petitioner before the Court. As has been very aptly observed, the High Court had gone into the question of examining the answer sheets, which related to law. In this context, the observation that if the subjects had been physics, chemistry or mathematics, then the High Court would not have been in any position to adopt the course, which it did. Finally, the Hon'ble Supreme Court has held that such a course was not permissible for the High Court. This Court, while deciding Surender Singh's case (supra) and the LPA Bench in Surender Singh's case (supra) appear to have gone into examining the answers to the questions set in the question paper and had issued direction for correction on the basis of their own understanding. This approach appears to be irreconcilable with the observations made by the Hon'ble Supreme Court in Himachal Pradesh Public Service Commission's case (supra). The Court has apparently directed the said exercise to be done in a manner which had not received the approval of the Hon'ble Supreme Court. Subject dealt with by the Court was relating to law and so it may not have countered any difficulty. Had it been any other field, the Civil Writ Petition No. 7232 of 2010 :{ 16 }: Court was bound to encounter difficulty. This aspect has already been highlighted to bring home the point emphasized by the Hon'ble Supreme Court. In fact, the counsel for the petitioner would require of this Court to do the same, which has been clearly disapproved by the Hon'ble Supreme Court. The counsel has left number of extracts from the text books to say that the answers given in the key were wrong, as per these text books. It is not for this Court to see the same. That would not fall within the purview of judicial review. The danger involved in adopting such a mode can very well be demonstrated from the stand taken by the respondents. Respondents would rely upon the report given by experts to vouchsafe that the answers given in the key answers are correct, which are stated to be incorrect and would urge that these answers are rather correct. The justification as offered in Annexure R2/1 can not be easily ignored, as has been exemplified by making reference to one of the answers given in the options, which is stated to be incorrect. I am, thus, of the considered opinion that the prayer made in the writ petitions is beyond the scope of judicial review and direction as prayed for can not be allowed in view of the law laid down by the Hon'ble Supreme Court. As per the clear position of law as enunciated and noticed above, it is not within the domain of this court to examine the question papers or the answer sheets to notice any discrepancies or inconsistencies either in setting the questions or evaluation thereof. The question paper as set was equally applicable Civil Writ Petition No. 7232 of 2010 :{ 17 }: to all the candidates, who appeared in the exam. No particular prejudice would have been caused to the petitioner in any case. It is certainly not within the jurisdiction of this court to see if any question has been asked out of syllabus or some answers are required to be corrected or if some grace marks are to be awarded. The prayer made in the writ petition would be beyond the scope of judicial parameter for this Court to interfere. The writ petitions, therefore, have no merit and are accordingly dismissed. December 01, 2010 Khurmi ( RANJIT SINGH ) JUDGE