Allahabad High Court
State Of U.P. Thru. Sec. Home And 2 ... vs Pankaj Kumar on 6 May, 2015
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Chief Justice's Court AFR
Case :- SPECIAL APPEAL DEFECTIVE No. - 343 of 2015
Appellant :- State Of U.P. Thru. Sec. Home And 2 Others
Respondent :- Pankaj Kumar
Counsel for Appellant :- Piyush Shukla,S.C.
Counsel for Respondent :- Hari Om Khare
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Manoj Kumar Gupta,J.
The present special appeal has arisen from a judgment and order of a learned Single Judge dated 23 December 2014.
At the hearing, learned counsel appearing on behalf of the appellants has confined the appeal to the first operative direction contained in the impugned judgment and order which reads as follows:
"(1) The respondents shall draw a final merit list of OBC category candidates on the basis of evaluation of marks awarding 1.25 marks against each correct question to all the candidates in the written examination and extend the benefit of 7.50 marks admissible against six wrong questions equally to all and accordingly draw the overall merit list of selected candidates for appointment and determination of seniority as per rules."
The writ petition under Article 226 of the Constitution was filed by the respondent, seeking a certiorari for setting aside the final result dated 17 May 2010 of an examination conducted by the U P Police Recruitment and Promotion Board1 for recruitment to the post of police constables. Thirty five thousand vacancies were advertised for being filled up on the basis of direct recruitment. The respondent is a candidate who belongs to the OBC category for which, there was a reservation of 9450 posts. The written examination consisted of four parts and each part consisted of 40 questions. The total number of marks for each of the four parts was 50. A candidate was required to obtain a minimum of 33% marks in each of the four parts separately for clearing the examination and was also required to obtain an average of 35% of the total marks overall. Since each part contained 40 questions and was of 50 marks, 1.25 marks were to be allotted for every correct answer.
The difficulty which arose was due to the fact that in Part II, four questions were posed wrongly. Similarly, in Part IV, two questions had been posed wrongly. Hence, between Part II and Part IV, there were six wrong questions in all. The Board constituted a Committee for resolving the issue as to how the matter pertaining to the wrong question should be dealt with. The issue was placed before the Board on 28 April 2010, when a decision was taken to apply a uniform formula for the purpose of evaluation. This formula was notified on the official website of the Board and a notification was eventually published on 6 May 2010 by applying the formula to every candidate in a uniform manner. The formula was as follows:
"Correct answers multiplied by the total marks of the paper divided by the number of correct questions."
The learned Single Judge compared the marks which were obtained by the respondent, who was the petitioner before the Court, with three other hypothetical instances described as candidates, X, Y and Z respectively. The comparison was tabulated in the judgment. For the purposes of the controversy in the appeal, what appears to have been the drift of the approach of the learned Single Judge was that though the respondent had answered the same number of correct questions overall as the candidates hypothetically described as X, Y and Z respectively, the total number of marks obtained at the examination would vary. This was because the Board distributed the marks carried by the incorrectly posed questions by enhancing the average marks for every correct question in that part. Consequently, in Part II, where there were four incorrectly posed questions, the marks per question were enhanced to 1.3888. In Part IV, where there were two incorrectly posed questions, the average marks per question were enhanced to 1.3157. This was done uniformally for every candidate and the marks were allotted on the basis of this process of averaging. The learned Single Judge held that the Board should have either ignored the wrong questions altogether or should have awarded equal marks to all candidates in respect of the wrong questions, so that the rules of the game would stand unchanged during the process of recruitment. In other words, what the learned Single Judge held was that the only way to ensure a level playing field was to allot 1.25 marks for every incorrectly posed question to all candidates uniformly.
The issue before the Court is whether this conclusion of the learned Single Judge is correct or whether it transgressed the jurisdiction of the examining body to deal with an anomaly which had crept into the examination process in a fair and uniform manner for all candidates.
The manner in which marks should be distributed in an open competitive examination is for the examining body to devise. The authority which holds the examination is entitled to structure the examination and to allot marks in such a manner as would subserve the purpose of testing the knowledge of candidates who are being examined. As is the experience of such examinations which are conducted by examining bodies across the country, anomalies do occur, the usual one being where some questions are incorrectly posed or where in a multiple choice pattern, the key answer are wrongly indicated. Undoubtedly, one method of dealing with the anomaly is to allot full marks for the incorrectly posed questions to all candidates across the board. Doing so would ensure a level playing field. But this is not the only manner in which an anomaly in the examinations' process can be resolved. As long as the examining body has adopted a criterion which is not discriminatory and is uniformly applied to all similarly circumstanced candidates, the discretion of the examining body cannot be faulted on the ground that another formula appears to the Court to be more just and proper.
In the present case, the significant aspect which, with respect, has been missed in the judgment of the learned Single Judge, is that candidates were required not only to obtain an average of 35% marks, as a passing percentage overall but, in addition, were required to obtain at least 33% marks in each of the four parts of the examination. Each of the four parts dealt with different subjects, these being respectively: (i) General Knowledge; (ii) Numerical and Mental Ability; (iii) Aptitude Test; and (iv) Intelligence Quotient Test. Each of the parts was, therefore, intended to test a different faculty of the individual candidates. The method which was followed by the examining body in the present case was to distribute the marks which were carried by the incorrectly posed questions evenly amongst the remaining questions in the two parts, namely, Part II and Part IV where the wrong questions occurred. Hence, the marks attributable to the four wrong questions in Part II and to the two wrong questions in Part IV were distributed between the remaining questions in those parts. This method cannot be regarded as arbitrary or extraneous in view of the fact that candidates were required to obtain a minimum passing standard in each of the four parts separately, apart from securing minimum passing marks in the examination overall. The formula was applied uniformly to all candidates across the board.
The learned Single Judge compared the marks obtained by the respondent with three hypothetical instances described as candidates X, Y and Z respectively. The danger of striking down a decision of an administrative authority on the basis of hypothetical instances is illustrated by the case in point. Aberrations cannot be the basis of deciding upon the legality of the decision making process or the decision of an administrative authority. That cannot be the parameter for the application of judicial review. While exercising the power of judicial review in such matters, the task of the Court is to deduce as to whether the authority has applied a standard which is extraneous or one which no reasonable body of person would adopt. As we have noted, the standard was applied uniformly and was based on an objective foundation.
The next aspect of the judgment and order of the learned Single Judge which merits emphasis, is that the first operative direction commands the appellants to draw a fresh merit list only for OBC candidates by awarding 1.25 marks to each of the six wrong questions equally to all candidates. The final select list has not been disturbed in respect of other candidates and the exercise is directed to be carried out only in respect of OBC candidates. This, in our opinion, would be impermissible because a different standard of assessment would apply to one category as distinct from another. The standard of assessment has to be uniform.
Reliance has been placed by the learned Single Judge on a decision of the Supreme Court in Anil Kumar v. State of U.P.2, decided on 18 July 2014. In that case, an examination was conducted for recruitment to the post of Sub-Inspector in the civil police and eighteen questions were set in an erroneous manner. Some of the candidates approached the High Court which directed that full marks be awarded in respect of eighteen erroneous questions only to those candidates who had approached the High Court. Some of the candidates, thereafter, moved a Division Bench of this Court which passed an interim order. The interim order was challenged by the State and its functionaries. The interim order was vacated by the Supreme Court and the selected candidates were directed to proceed for their training and join their posts. In this view of the matter, the Supreme Court issued directions to the effect that 3358 candidates who had joined on their posts and were working would not be disturbed. The Board was directed to award full marks to all candidates irrespective of whether they had approached the Court. If a candidate had not answered the erroneous questions, that was to be proportionately reduced. This decision, which arose from an interim order of the High Court, was in the background of the fact that the High Court had directed the awarding of marks for erroneous questions only to those candidates who had approached the Court. The Supreme Court held that confining the benefit to only those who had moved the High Court was improper and the same benefit would have to be extended to all. The issue which arises in the present case was not the subject matter of the decision of the Supreme Court as would be clear from a reading of the order dated 18 July 2014.
For these reasons, we have come to the conclusion that operative direction no.(1) which is challenged in the present appeal is erroneous. The special appeal would have to be allowed and is, accordingly, allowed by setting aside the first operative direction issued by the learned Single Judge extracted in the earlier part of this order.
We may also record the statement which has been made on behalf of the appellants that since the judgment of the learned Single Judge was rendered in a batch of two writ petitions, the State is in the process of filing a special appeal in the companion matter as well.
The special appeal is, accordingly, disposed of in these terms. There shall be no order as to costs.
Order Date :- 6.5.2015
RKK/-
(M.K. Gupta, J) (Dr. D.Y. Chandrachud, CJ)
Chief Justice's Court
Civil Misc. (Delay Condonation) Application No.153448 of 2015
In re:
Case :- SPECIAL APPEAL DEFECTIVE No. - 343 of 2015
Appellant :- State Of U.P. Thru. Sec. Home And 2 Others
Respondent :- Pankaj Kumar
Counsel for Appellant :- Piyush Shukla,S.C.
Counsel for Respondent :- Hari Om Khare
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Manoj Kumar Gupta,J.
There is a delay of 62 days in filing this special appeal, which is condoned in public interest since sufficient cause has been shown in the affidavit filed in support of the delay condonation application.
The application stands disposed of. There shall be no order as to costs.
Order Date :- 6.5.2015
RKK/-
(M.K. Gupta, J) (Dr. D.Y. Chandrachud, CJ)
