Gaurav Kumar vs State Of U P And Another
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Allahabad High Court

Gaurav Kumar vs State Of U P And Another on 27 May, 2024

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:95658-DB
 
Reserved
 
Court No.42
 
Case :- SPECIAL APPEAL No. - 353 of 2023
 

 
Appellant :- Gaurav Kumar
 
Respondent :- State Of U P And Another
 
Counsel for Appellant :- Seemant Singh
 
Counsel for Respondent :- C.S.C.,Siddharth Singhal
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Syed Qamar Hasan Rizvi,J.

(Delivered by Ashwani Kumar Mishra, J.)

1. This appeal is directed against the judgment and order dated 18.04.2023, passed by learned Single Judge in Writ-A No.3975 of 2023, whereby the writ petition filed by the appellant-petitioner has been dismissed.

2. Shorn of unnecessary details the facts of the case are that respondent no.2 Uttar Pradesh Subordinate Services Selection Commission, Lucknow (hereinafter referred to as 'Commission') held recruitment for 672 posts in different departments of the State Government vide Combined Lower Subordinate Service (General Selection) Competitive Examination 2019 pursuant to advertisement No.1 of 2019. The written examination (preliminary) was held on 30.09.2019 and 01.10.2019. On the basis of preliminary examination 15335 candidates were found eligible for appearing in the written examination (mains) vide result uploaded on the website of the Commission on 26.06.2020. The written examination (mains) thereafter was held on 21.10.2021 in two shifts. The appellant-petitioner has also appeared in the said written examination (mains). As per the scheme of examination each correct answer carried 2 marks while every wrong answer invited negative 0.5 marks. The appellant-petitioner claims that he has been awarded 306.5 marks in the Other Backward Caste (OBC) category, which is below the cut-off. He has asserted that question no.38 of Booklet Series-C of shift-I and question no.40 of Booklet Series-C of shift-II were rightly answered by him but the Commission has denied him marks for these two questions as the answer chosen by the Commission for these two questions are incorrect. The appellant-petitioner submitted that had the right answers been relied upon by the Commission he would have gained 5 marks (4 marks for correct answers and 1 mark for negative marking for these two questions). This would have worked out to 311.5 marks and merit of appellant-petitioner would have crossed the cut-off for the post of Assistant Consolidation Officer i.e. 310 marks in OBC category and Marketing Inspector i.e. 310.5 marks in OBC category. The appellant-petitioner contended that final result was declared only on 09.12.2022 by the Commission and soon thereafter the writ petition was filed being Writ-A No.216 of 2013. This writ petition contained certain deficiencies on account of which it was withdrawn whereafter a fresh writ petition being Writ-A No.3975 of 2023 came to be filed seeking following relief:-

"(a) Issue a writ, order or direction in the nature of Certiorari calling the records of the case and quashing the impugned answer key (undated) circular issued by the Secretary, Uttar Pradesh Subordinate Services Selection Commission, Lucknow at his official website, only to an extent of question no.38 of the written examination of shift-I and question No.40 of the written examination of shift-II held on 21.10.2021 and also the final result dated 09.12.2022 issued by the Secretary, Uttar Padesh Sub-ordinate Service Selection Commission, Lucknow on the basis of impugned amended answer key (undated) on the written examination in pursuance of the Advertisement No.1-Examination/2019 issued by the Secretary, Uttar Padesh Sub-ordinate Service Selection Commission, Lucknow.

(b) Issue a writ, order or direction in the nature of Mandamus directing the respondents to award 2 marks each for question No.38 of the written examination of shift-I and question No.40 of the written examination of Shift-II and also award 1 mark to the petitioner on account of having been deducted for negative marking.

(c) Issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the selection of petitioner on the post of Assistant Consolidation Officer and marking inspector on the basis of merit of the petitioner in the written examination in pursuance of the selection of Combined Lower Subordinate Service (General Selection) Competitive Examination, 2019 issued by the Secretary, Uttar Pradesh Subordinate Services Selection Commission, Lucknow.

(d) Issue any other suitable writ order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

3. Record reveals that the written examination (mains) was held on 21.10.2021 in two shifts. Answer key in respect of all questions of the booklet series of both the shifts was uploaded on the website of Commission on 01.11.2021. Opportunity was given to the candidates to file their objections on the link made available on the website by 07.11.2021. It is admitted that appellant-petitioner objected to two questions i.e. question no.38 of Booklet Series-C of shift-I and question no.40 of Booklet Series-C of shift-II. After considering the objections made to the answer key the Commission published final answer key on 19.01.2022. The objection raised by the appellant-petitioner to the above two questions were not accepted while publishing final answer key. On the basis of final answer key published on 19.01.2022 the Commission issued notification on 11.03.2022, calling upon 1861 candidates for next stage of selection. The petitioner qualified at this stage of recruitment. The Commission thereafter issued notification on 04.05.2022 commencing the document verification process. This was to be undertaken between 11.05.2022 to 26.05.2022. It is thereafter that final result has been published by the Commission on 09.12.2022 for 670 posts against 672 advertised posts. The two vacant posts pertained to physically handicapped category, which was carried forward to the next recruitment as none of the candidates for such category was available. The Commission vide its notification dated 16.01.2023 has forwarded recommendation to the concerned departments of the State . The selection process has thus been concluded by the Commission.

4. It is thereafter that the appellant-petitioner has filed the writ petition in which counsel for the Commission raised an objection to the maintainability of the writ petition on the ground that the petitioner acquiesced to the final answer key published on 19.01.2022 and, therefore, he is estopped from subsequently challenging the answer key in respect of question no.38 of Booklet Series-C of shift-I and question no.40 of Booklet Series-C of shift-II. Learned Single Judge has sustained the objection of the Commission to the filing of writ petition and writ petition has been dismissed vide impugned judgment and order by observing as under:-

"Be that as it may, the fact that the petitioner has qualified in the written examination and subsequently participated in the document verification process, is not disputed by the learned counsel for the petitioner. As the petitioner stood lower in the merit, therefore, he was not selected.

As the petitioner is acquiesced to the process of selection and has participated in the document verification without raising any whisper against the answer key, therefore, it is not open to the petitioner to challenge the same after the result of selection has been declared and the selection process is complete.

In such view of the fact, this Court is of the opinion that the writ petition lacks merit, and is accordingly, dismissed with no order as to costs. "

Thus aggrieved, the appellant-petitioner has preferred the present appeal.

5. Shri Seemant Singh, learned counsel appearing for the appellant-petitioner has placed reliance upon a judgment of the Lucknow Bench in Special Appeal No. 1 of 2020 to submit that cause of action has arisen to the appellant only when final result has been published and the writ petition could not have been dismissed for the reasons recorded by learned Single Judge.

6. The contention advanced on behalf of appellant-petitioner is opposed by Shri Manish Goel, learned Senior Counsel assisted by Shri Siddharth Singhal for the Commission. Shri Goel has placed reliance upon certain judgments in the case of Pradeep Kumar Rai and others vs. Dinesh Kumar Pandey (2015) 11 SCC 493, Madan Lal and others vs. State of J & K and others (1995) 3 SCC 486, Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others (2002) 6 SCC 127, Ashok Kumar and another vs. State of Bihar and others (2017) 4 SCC 357, K.H. Siraj vs. High Court of Kerala and others (2006) 6 SCC 395, High Court of Judicature at Allahabad vs. Robin Singh and others 2022 SCC Online All 486, Pramod Kumar Singh and others vs. State of U.P. and others 2022 SCC Online All 588 to submit that writ petition has rightly been dismissed as petitioner has not challenged the final answer key within a reasonable period of time. It is also submitted that the appellant-petitioner having acquiesced to the final answer key has taken the chance at the recruitment and having ultimately failed to secure adequate merit for selection cannot be allowed to challenge the answer key in respect of two questions at this belated stage.

7. On behalf of the respondent Commission reliance has also been placed upon judgment of the Supreme Court in U.P. Subordinate Service Selection Commission & another vs. Brijendra Pratap Singh and another being Civil Appeal No.7720 of 2021 to submit that bonafide decision of Commission ordinarily should not be interfered with in exercise of writ jurisdiction.

8. In reply, on behalf of the appellant-petitioner reliance has been placed upon a Division Bench judgment of this Court in Kapil Kumar and others vs. State of U.P. and others, 2023 (12) ADJ 338 (DB) to submit that in similar circumstance a Coordinate Bench of this Court has not only entertained the writ petition but allowed it also.

9. We have heard learned counsel for the parties and have perused the materials available on record.

10. During the course of hearing of appeal, we have also examined the two questions in respect of which the appellant-petitioner has raised his objection. The first question i.e. question no.38 of Booklet Series-C of shift-I alongwith available options to be chosen by the candidate is as under:-

"Which of the following combinations of Bank and their objectives is correct?

(A) IDBI - Short term Loans

(B) NABARD - Industrial

(C) RRB - Agricultural Finance

(D) RBI - Long-term Loans"

11. Similarly, question no.40 of Booklet Series-C of shift-II is as under:-

"Which of the following is the commercial unit of electric power?

(A) ampere

(B) watt

(C) joule

(D) kWh"

12. So far as the question no.38 of Booklet Series-C of shift-I is concerned, the candidate is required to indicate as to which of the four combinations is correct. The Commission has indicated option 'C' to be correct which is RRB - Agricultural Finance. RRB stands for Regional Rural Bank. In respect of this question the appellant-petitioner submits that in addition to option 'C', option 'D' is also correct. Option 'D' is Reserve Bank of India - Long-term Loans.

13. The appellant-petitioner admits that option 'C' is correct. What is, however, submitted is that option 'D' is also correct. On this the parties are at issue, inasmuch as the counsel for the Commission states that Reserve Bank of India is India's central bank and is a body responsible for regulation of Indian banking system. It acts as regulatory and supervisory authority of the banking sector. In furtherance of its functions the Reserve Bank of India also regulates Long-term loans but that cannot be said to be its objective.

14. So far as the question no.40 of Booklet Series-C of shift-II is concerned, the candidate was required to specify the commercial unit of electric power. The four possible options have been indicated and according to the appellant-petitioner the correct answer is option 'B' (Watt) and not option 'D' (Kilowatt). The Commission, on the other hand, states that though 'Watt' is an unit of electric power but the question posed to the candidate is to specify the commercial unit of electric power. According to the Commission, the commercial unit of electric power is 'Kilowatt' (option D), inasmuch as 'Watt' (option D) is not the commercial unit of electric power.

15. Though various literatures have been relied upon by both the sides but we find that the view taken by the Commission in the facts of this case is a plausible view. So far as the question no.38 of Booklet Series-C of shift-I is concerned, admittedly the Regional Rural Banks have their objective of providing agricultural finance. The appellant-petitioner also admits that option 'C' is the correct answer. The argument of the appellant-petitioner that option 'D' (RBI Long-term loans) is also correct, on account of which question no.38 has two correct options making the question itself incorrect, cannot be accepted. We find substance in the view taken by the Commission that the candidate was required to choose the option only from the alternatives suggested to him. The option 'C' (RRB - Agricultural Finance) ultimately chosen by the Commission is the correct answer, which remains undisputed. The other option i.e. option 'D' (RBI Long-term loans) may appear to be a plausible option but in terms of the objective of a bank, the option suggested by the Commission seems preferable as the objective of RBI cannot be specified as long-term loans, when it has the larger object of regulating the banking sector itself. Moreover, the Courts would generally be reluctant to interfere with the opinion of the Commission which is based upon the expert advise received by it unless it is shown to be wholly irrational or palpably incorrect.

16. Similarly, in respect of question no.40 of Booklet Series-C of shift-II, we find that the option 'D' (Kilowatt) chosen by the Commission being the unit of commercial electric power is the plausible view, inasmuch as 'Watt' (option D) though is a unit of electric power, but is not the commercial unit of electric power, inasmuch as sale of electric power is not in terms of 'Watt' as it is too small to be the basis for sale of electric power.

17. Having given our thoughtful consideration to the submissions of the appellant we find that, on merits the appellant-petitioner has no case inasmuch as the answers chosen by the Commission are clearly permissible and cannot be termed as wholly incorrect or irrational.

18. On this aspect we are guided by the words of caution expressed by the Supreme Court in a series of judgments, limiting the scope of examination of such issues by the High Court. In para 9 and 10 of the judgment of the Supreme Court in Secretary (Health), Department of Health and Family Welfare & Anr. vs. Dr. Anita Puri (1996) 6 SCC 282, the Court observed as under:-

"9. .........It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation. Thus considered, we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was arbitrary or that the selection made by the Commission was in any way vitiated.

10. In the aforesaid premises, we set aside the judgment of the Division Bench of the Punjab and Haryana High Court and allow this appeal. The writ petition filed by the respondents stand dismissed, there will be no order as to costs."

19. In a recent decision of this Court in Nitesh Kumar Singh Yadav Vs. State of U.P. and others (Neutral Citation No.- 2024:AHC:50401-DB), this Court reiterated the principle in para 26, which is reproduced hereinafter:-

26. We are of the considered view that in the matter of public examination where large scale recruitment are undertaken some play in the joints would have to be conceded to the examining authority. It is possible that the question may not have been framed in the best possible manner or a better formulation may be advisable, but it cannot be a ground to hold the question itself to be wrong as long as the question can be understood by a candidate and can be answered. Unless it is shown that the question is wrong or the formulation of question is such that the candidate could not have understood the question or answered it, we would not be justified in interfering with the question itself.

20. As we have already come to the conclusion that challenge of the appellant-petitioner to the answer to the two questions has no substance, we are of the view that there is no necessity for us to examine the question as to when exactly the cause of action has arisen to the petitioner in the matter. This question is, therefore, left open. The appeal otherwise lacks merit and is, accordingly, dismissed.

21. The original record placed by the Commission shall be returned to it.

Order Date:- 27.05.2024

Ashok Kr.