Ashok Yadav vs State Of U.P. And 2 Others
2021 Latest Caselaw 1169 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 1186 of 2020
 

 
Appellant :- Ashok Yadav
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Sheikh Obaidullah,Radha Kant Ojha (Senior Adv)
 
Counsel for Respondent :- C.S.C.,Prabhakar Awasthi
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Rohit Ranjan Agarwal,J.

Order on Delay Condonation Application.

Since the matter has heard on merit and decided as such delay in filing of the appeal is condoned as otherwise no objection has been taken by the counsel for the non-appellant.

Order on Appeal.

By this appeal, a challenge is made to the judgment dated 12.07.2019 whereby a writ petition preferred by the petitioner-appellant was dismissed. It is a case where an advertisement was issued by the respondents to invite application for selection on the post of Village Development Officer. After holding selection, result was declared on 20.07.2018. For the category of Other Backward Class (in short O.B.C.) the cut off marks were 77. The petitioner-appellant secured 76 marks, thus was short of one mark.

A writ petition was filed to challenge the decision of the U.P. Subordinate Services Selection Commission to change the answer of Question No.68 in "D" series. It has not been disputed that after publication of the answer key, objections were invited followed by expert opinion in reference to the objections. The answer to question 68 of "D" series with option B was taken to be correct on expert opinion.

The petitioner-appellant has challenged the aforesaid with the prayer that option C be taken as correct answer to question No.68 of "D" series. The writ petition was dismissed by the learned Single Judge after referring the judgment of the Apex Court in the case of U.P. Public Service Commission through its Chairman and another Vs. Rahul Singh and another reported in (2018) 7 SCC 254.

Learned counsel for the petitioner-appellant submits correct answer of question No.68 of "D" series is option No.C and not B, as given by the expert.

To substantiate the argument, he has made reference of an interim order passed by the court on 18.12.2019 in Service Single No.34270 of 2019 by Lucknow Bench. In the order dated 18.12.2019 reference of the expert opinion of the University has been given to show correct answer to be option C for question No.75 of "C" series.

In view of aforesaid, a prayer is made to govern this case by the out come of the writ petition pending before the Lucknow Bench. It is also submitted that option B of question No.68 of "D" series is a wrong answer on the face of it. Prayer is accordingly to set aside the judgment of the learned Single Judge with acceptance of the prayer made in the writ petition.

We have considered the arguments made by the learned counsel for the appellant and perused the record.

The facts narrated in the proceeding reflects publication of answer key by the respondents on completion of selection and invitation of objection. The objection to certain questions were raised by the candidates. The expert opinion was taken thereupon by the Commission.

As per the expert opinion, correct answer of question No.68 "D" series was option "B" and accordingly determination of marks were made. The petitioner-appellant had marked at option C to question No.68 of "D" series.

The expert opinion has been challenged without any material to support. No reference book or any material has been produced to reflect correct answer of question No. 68 to be option C and not option B. In absence of any material to support the argument, the court cannot go against the opinion of the expert.

The judgment of the Apex Court in the case of U.P. Public Service Commission through its Chairman (Supra) covers the issue. The relevant paras of the judgment are quoted here under for ready reference:-

10. In Ran Vijay Singh Vs. State of U.P., (2018) 2 SCC 357 this Court after referring to a catena of judicial pronouncements summarized the legal position in the following terms:-

"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:

30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;

30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;

30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate--it has no expertise in the matter and academic matters are best left to academics;

30.4. The court should presume the correctness of the key answers and proceed on that assumption; and

30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."

11. We may also refer to the following observations in Paras 31 and 32 which show why the Constitutional Courts must exercise restraint in such matters:-

"31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse -- exclude the suspect or offending question.

32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not;

whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."

The judgment aforesaid applies to the facts of this case. It is not a case where petitioners produced material to show expert opinion to be incorrect on the face of the record. Merely making a statement cannot nullify the expert opinion.

So far as the interim order passed by the High Court Bench at Lucknow, we find that the court has taken opinion of Department of History, University of Lucknow, though the selection was not conducted by the University. The order does not show as on what basis the University was got involved to seek its opinion. The court should not examine the correctness of the answer and that too when the expert opinion exist. It is in the light of the judgment in the case of U.P. Public Service Commission through its Chairman (Supra).

The judgment aforesaid was not brought to the notice of the learned Single Judge of Lucknow Bench. It is more so when no reference of book has been given to show that answer selected by the expert is wrong on the face of the record. The court should not enter into the issue rather it should exercise its jurisdiction with utmost restrain. The correctness of answer should not normally be examined by the High Court.

The reference of the judgment of the Apex Court in the case of Kanpur University through Vice Chancellor Vs. Samir Gupta (1983) 4 SCC 309 is also relevant. Para 16 of the said judgment is quoted hereunder:-

"16..........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 rationalization. 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 judgment of the Apex Court in the case of Kanpur University through Vice Chancellor (Supra) shows that there would be an assumption of correctness of the answer selected by the Commission unless it is shown to be wrong and it can be when adequate material is produced for the aforesaid purpose.

The petitioner-appellant has failed to produce any reference Book or material to show answer of the question No. 68 of "D" series to be correct, as was given by him.

It is also that whenever any material is produced to show an answer to be wrong on the face of it and if any opinion is to be sought by the court, it should be through the agency which has conducted the selection and not by any other agency.

In view of discussion made above, we do not find any reason to cause interference to the judgment of the learned Single Judge.

The appeal accordingly fails and is dismissed.

Order Date :- 20.1.2021

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