Kushagra Raj vs State Of U.P. And Another
2022 Latest Caselaw 21349 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on: 23.09.2022
 
Judgment delivered on : 16.12.2022
 

 
Court No. - 33
 

 
Case :- WRIT - A No. - 6293 of 2022
 

 
Petitioner :- Kushagra Raj
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Kshitij Shailendra,Sandeep Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Kshitij Shailendra, learned counsel for the petitioner and Shri Shailendra Singh, learned Standing Counsel for the State-respondent.

2. By means of this writ petition, petitioner has prayed for issuance of a writ of certiorari quashing the impugned final answer key, UPRI Series 'B' subject Hindi language (TET-2021) dated 7.8.2022 issued by respondent No. 2, Secretary, Examination Regulatory Authority, U.P. Prayagraj concerning Question No. 47 only as well as consequential result dated 8.4.2022 to that extent. Further prayer has also been made to issue a writ of mandamus commanding the respondents especially the Secretary, Examination Regulatory Authority, U.P., Prayagraj to award 01 mark to the petitioner in respect to Question 47 of Part II paper of Hindi language contained in Booklet Series "B" (TET 2021) and revise the result of the petitioner on the basis of correct marking.

3. Learned counsel for the petitioner submits that in TET-2021 the petitioner has illegally been declared as "not qualified" on the basis of impugned final answer key for UPRI Series 'B' Part II, subject Hindi language dated 07.04.2022 issued by the Secretary. Examination Regulatory Authority. UP. Allenganj, Prayagraj (Allahabad).

4. Learned counsel for the petitioner contends that an advertisement was issued for recruitment under U.P.T.E.T. -2021 and applications were invited from the eligible candidates through online application with guidelines.

5. In pursuance thereof petitioner filled his online application form for Upper Primary Level as unreserved candidate with registration no 2906229452. The petitioner was allotted roll number bearing Roll no. 122028014116 and examination was held on 23.01.2022, in which the petitioner appeared. The respondent No. 2 published tentative key answers on the website on 27.01.2022 in respect of examination held on 23.01.2022 by calling the objections from the candidates, who were dissatisfied with the tentative key answers. Accordingly, petitioner filed his objections on 1.2.2022 against 3 questions i.e. question Nos. 47, 48 and 98 along with the evidence and relevant material The respondent no. 2 published impugned final key answers on 07.04.2022, whereby objection of petitioner in respect of question No. 48 was accepted and in respect of questions no. 47 and 98 the same was turned down. Thereafter, respondent no. 2 published the result of UPTET-2021 on 08.04.2022, whereby the petitioner allotted 89 marks and declared not qualified by 01 mark.

6. Learned counsel for the petitioner submits that the question No. 47 asked in the aforesaid examination was as under:-

"47. fuEufyf[kr essa okpu vfHko`R;kRed mn~ns'; gS

47.

1- /kS;ZiwoZd lquukA

2- lkfgR; dk jlkLoknu djukA

3- Hkk"kk vkSj lkfgR; esa :fpA

4- LokuqHkwr fopkjksa o Hkkoks dks vfHkO;Dr djukA"

47. Learned counsel for the petitioner submits that petitioner marked option No. 4 as the right answer, while the respondent no. 2 erroneously treated the option no. 3 as the right answer. Consequently, the respondent no. 2 treated the option exercised by the petitioner in his answer sheet as wrong. Learned counsel for the petitioner submits that according to Youth Competition Times, the answer given by the petitioner was found the true answer, which has been published by him in the name of UPTET/CTET solved papers with explanation especially for the Teacher Eligibility Examination.

7. Learned counsel for the petitioner submits that answer published by the Arihant publication in name of UPTET practice sets and Kiran Institute of Career Excellence especially prepared for UPTET 2021, the answer given by the petitioner has been found to be true and right answer.

8. Learned counsel for the petitioner submits that earlier, the respondent no. 2 asked the same question in the year 2017, wherein he awarded marks and treated the right answer given by the petitioner but in the present examination, he changed the option without any basis and also against the material, which is totally illegal, unfair, arbitrary and against the provision of law

9. Thus, the present writ petition has been filed with the prayer to direct the respondents to re-evaluate the answer sheets on the basis of the answers as given by the petitioners in the objections placed before respondents-Commission and declare the result of the petitioner accordingly.

10. Shri Shailendra Singh, learned Standing Counsel submits that petitioner has raised the objection against question Nos. 47, 48 and 98 and after examining by the subject experts, the objection for Question No. 47 and 98 was found incorrect and the answer key declared by the Regulatory Authority was found to be correct whereas objection with regard to Question No. 48 was found to be correct. Since the answer key has been examined by the subject experts and the petitioners have not pleaded mala fide as against the respondents, as such no judicial review would lie and the writ petition is liable to be dismissed.

11. Shri Shailendra Singh, learned Standing Counsel has specifically mentioned that panel of examiners and experts is an independent body as the same has been constituted under Regulation 12 of the U.P. High Education Service Commission (Procedure for Selection of Teachers) Regulations, 2014, which reads as follows:-

"(1) The Chairman Examination Committee shall prepare for every subject, a list of persons qualified for appointment as examiners and submit the same for approval fo the Commission, such list shall be revised at least once in every two years:

Provided that a person included in the previous list shall be eligible for inclusion in the revised list.

(2) The list referred in sub-section (1) shall contain, as far as possible, information about the persons included therein regard to their academic qualifications, teaching experience at the degree and the postgraduate levels or professional experience and, the particulars, of the earlier examinations conducted by the Commission in which they acted as examiners.

(3) The Chairman Examination Committee shall, with the prior approval of the Commission, appoint Paper Setters and Moderators from amongst the persons included in the list referred to in sub-section (1).

(4) In making such appointments every care shall be taken to ensure that no person as so appointed who was found guilty of misconduct by any university, Government or Government body, or against whom any inquiries or investigations are pending or allegations of misconduct, or whose integrity is doubtful. Any person whose work as Head Examiner, Paper Setter or Valuer is found to be unsatisfactory by the Commission shall not be reappointed for that purpose."

12. The examiners as well as experts being an independent body, their decision cannot be interfered as the same is given after proper consultation and research. He further submit that in case of any mistake, the benefit of change in the answer key is given to each and every candidate, after following due process. The change in the tentative answer key can be made only after the expert opinion, the Commission takes into consideration the objections as raised by the candidates and after placing the same before the experts, the answer key is uploaded. The deletion of answer can be possible only after the experts opinion and benefit of deleted question is given to each and every candidate, in such a manner that there is no discrepancy or discrimination with any candidates.

13. Learned Standing Counsel submit that there is no provision of re-evaluation, therefore, the re-evaluation of answer sheets cannot be permitted as prayed by the petitioners. In support of their submission, they relying upon the judgement of High Court of Tripura Vs. Tirtha Sarathi Mukherjee and Others, reported in 2009 II SCALE 708, H.P. Service Commission Vs. Mukesh Thakur and Others, reported in AIR 2010 SC 2620 and Ran Vijay Singh and Others Vs. State of U.P. and Others, reported in AIR 2018 SC 52.

14. Learned Standing Counsel submit that the writ petition is not maintainable and the same is liable to be dismissed.

15. I have considered the submissions made on behalf of learned counsel for the parties and have gone through the records of the present writ petition.

16. The issue of re-evaluation of answer book or sheet is no more res integra. This issue has been considered by the Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth & Ors., reported in AIR 1984 SC 1543, wherein the Apex Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Apex Court further held that even the policy decision incorporated in the Rules/Regulations providing for rechecking/ verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Apex Court held as under:-

"In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate as to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. 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. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.

In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. 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 draw-backs in the policy incorporated in a rule or regulation will 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 prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution."

17. This view referred to above has been approved, relied upon and reiterated by the Apex Court in the case of Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, reported in J.T. 2004 SC 380 observing as under:

"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and nothing them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks."

18. This Court feels that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheets. The law is well settled that the burden is on the candidates, not only to demonstrate that the key answer is incorrect but also to show that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The Constitutional Courts must exercise great restrain in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. The Court should not over step its jurisdiction by giving the directions for re-evaluation which would amount to judicially reviewing the decision of the expert in the field.

19. The legal position in this respect has been summarised in case of Ran Vijay Singh and Ors. Vs. State of U.P. and Ors., reported in (2018) 2 SCC 357 which is follows:-

"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 scrutinize 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."

30.6 20. Undoubtedly, the Courts cannot judicially review the expert opinion unless and until the key answer is patently wrong.

21. There is no doubt that the candidates put in great efforts while preparing for an examination, it must not be ignored that even the examination authorities as well as experts put in equally great efforts to successfully conduct the examination, therefore 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.

22. Therefore, the Court should restrain itself in interfering with the efforts put in by the candidates as well as the examination authorities unless and until the mistake is apparent on the face of record and no research has to be done in proving the same, as the same will be an unending process resulting in uncertainty and confusion.

23. Keeping in mind the aforesaid, the Court in case of U.P.P.S.C. and Ors. Vs. Rahul Singh and Ors. reported in AIR 2018 SC 2861 has observed as follows:-

"Unless the candidate demonstrate that the key answers are patently wrong on the fact of it, the Courts cannot enter into the academic field, weigh the pros cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct."

24. Indubitably, conducting and holding of examinations in a most fitting and fair manner is peremptory and is solemn duty of examining body to provide for fair procedure, rules, regulations or bye-laws, keeping in mind that the career and fate of the students depends upon the result of the examinations.

25. A Constitution Bench of the Apex Court in the case of University of Mysore Vs. C.D. Govinda Rao & Anr., reported in AIR 1965 SC 491, has held that where the decision under challenge has been taken by the Committee of Expert, "normally the Courts should be slow to interfere with the opinion expressed by the experts" unless there are allegations of mala fide against any of the Members of the Expert Committee. The Court further observed as under:-

"........It would normally be wise and safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than Courts........"

26. It is settled law that when a decision is taken by the Committee of Expert having high academic qualifications and long experience in the specialised field, the Courts should not normally interfere in the matters unless there are compelling circumstances for doing so.

27. The aforesaid issue is also well settled in view of the judgement of Apex Court in case of Bihar Staff Selection Commission Vs. Arun Kumar ,reported in (2020) 6 SCC 362. There are otherwise catena of judgements of Supreme Court holding that in the competitive selection test, prayer for re-evaluation of marks cannot be accepted unless a rule for it exists.

28. Taking into consideration the settled position of law in the matters where the answer key is disputed, this Court in case of Jitendra Singh Vs. Union of India and Another, passed in Writ C No. 53877 of 2017, has held that the Court has to proceed on the assumption and presumption that the answer key is correct as the same is based on experts opinion given by the persons specialised. In the event of any doubt, benefit should go to the examination authority rather than to the candidate. It is with a rider that the Court should not re-evaluate or scrutinize the answer sheets of the candidates as it has no expertise in the matter, the academic matters are best left to the academicians there being no scope of judicial review in the matter.

29. In view of the above settled position of law, this Court finds no good ground to interfere in the present writ petition. The writ petition fails and is dismissed accordingly. No order as to costs.

Order Date :- 16.12.2022

Ravi Prakash