The Maharashtra Public Service vs 2 The State Of Maharashtra
2012 Latest Caselaw 430 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                          
                           BENCH AT AURANGABAD
                      WRIT PETITION NO.7883 OF 2012 




                                                  
                                         
     The Maharashtra Public Service
     Commission, through its Secretary,
     3rd Floor, Bank of India Building,




                                                 
     Mahatma Gandhi Road, Fort,
     Mumbai.                                     Petitioner

           Versus




                                    
     1 Tejrao Bhagaji Gadekar,
                      
        age: 49 years, Occ: service,
        Resident of: B-11, Z.P.Quarters,
        Panchakki Road, Aurangabad.
                     
     2 The State of Maharashtra,
        through its Secretary,
        Education Department,
      

        Mantralaya, Mumbai.                                Respondents
   



     Mr.S.P.Shah,  advocate for the petitioner.
     Mr.R.S.Deshmukh,  advocate for Respondent No.1.
     Mr.S.K.Tambe, A.G.P. For Respondent No.2. 





       

                                      CORAM : R.M.BORDE &
                                                     U.D.SALVI, JJ.





                                      DATE     :03rd  December, 2012.


     JUDGMENT (Per R.M.Borde, J.):

1 Rule. Rule made returnable forthwith and heard

finally by consent of learned Counsel for respective parties.

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2 The petitioner - Maharashtra Public Service

Commission is taking exception to the decision rendered by the

Maharashtra Administrative Tribunal, Bench at Aurangabad, in

Original Application No.769/2011, decided on 13.12.2011. The

Tribunal, while allowing the Original Application tendered by

Respondent No.1 herein, granted a declaration that Respondent No.

1 has achieved the benchmark for general category prescribed by

the Commission for holding him eligible to appear for the

interview.

3 The Maharashtra Public Service Commission

undertook selection process for filling up 74 vacancies of the post

of Education Officer in State services. The Commission conducted

screening test of the candidates and results were declared on

17.07.2011. The Commission published first answer key soliciting

objections from the candidates and after receiving objections and

on consideration of same with the assistance of experts in the

field, published a revised answer key. The performance of

candidates, appearing at the examination, was evaluated as per

the revised answer key.

4 Respondent No.1 herein approached Maharashtra

Administrative Tribunal at Aurangabad by filing Original

Application No.769/2011. It is the contention of Respondent No.1

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that the revised answer key provided by the Commission is

erroneous so far as it relates to three questions, namely questions

at Sr.Nos.17, 53 and 118. According to Respondent No.1, he has

answered all the questions correctly and that he is entitled to get

more marks.

5 The Maharashtra Administrative Tribunal considered

the objection raised by Respondent No.1 in respect of answer to

question no.53 provided under the revised answer key and found

that the answer provided by the Commission is erroneous and that

the answer recorded in the first answer key is the correct answer.

The Tribunal, as such, granted interim relief and directed the

Commission to conduct interview of the candidate. The Tribunal

took up the matter for final disposal and recorded a finding that

the answers provided by the Commission in the revised answer key

relating to question nos.17 and 53 are incorrect and answers

provided in the first answer key were the correct answers. The

Tribunal granted a declaration that Respondent No.1, on the basis

of revaluation of his performance at the instance of Tribunal, has

secured 97.5 marks which are above the benchmark prescribed by

the Commission and as such, he is eligible to contest further by

appearing in the interview.

6 Question no.53 was, "as to which is the longest river in

the World?" and options provided were, (1) Ganga, (2) Nile, (3)

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Amazon; and (4) Brahmaputra. The first answer key recorded the

correct answer as (2) Nile, whereas, revised answer key recorded

the correct answer as option no.(3) Amazon. The Tribunal took

upon itself the task of examining the correctness of answer on the

basis of literature relied upon by the Expert Committee and ruled

that the answer provided by the Commission in the revised answer

key is incorrect and that "Nile" is the longest river in the world. In

paragraph no.6 of the judgment, the Tribunal has observed as

below:

"6 Firstly, about the answer to question no.

53, the Commission has now placed on record (marked Exh.X) xerox copy of a document which runs into two pages. First is the noting of the Expert Committee accepting that option

3 (river Amazon) is the correct answer and not option 2 (river Nile). The second sheet is

pertaining to literature relied upon by the Expert Committee and we reproduce the relevant portion as under:

"The length of a river can be very hard to calculate. There are many factors, such as the source, the identification or the definition of the mouth, and the scale of

measurement of the river length between source and mouth, that determine the precise meaning of "river length". As a result, the length measurements of many rivers are only approximations. In particular, there has long been disagreement as to whether the Nile or

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the Amazon is the world's longest river.

The Nile has traditionally been considered longer, but in recent years some Brazilian

and Peruvian studies have suggested that the Amazon is longer by measuring the river plus the adjacent Para estuary and the longest connecting tidal canal."

From the paragraph relied upon by the Expert Committee, it is evident that, traditionally Nile river is considered as longer and it is only in

recent years some Brazilian and Peruvian studies suggested that Amazon river is longer.

But for the purpose of this opinion also the Brazilian and Peruvian studies have added to the length of Amazon, the adjacent Para

estuary and the longest connecting tidal canal. If these details are taken into consideration, it can at least be said that while preparing question papers and first answer key; Expert

Committee did not take sufficient precaution to

incorporate only those questions for which answers will not be debatable. In spite of this literature, we are unable to agree with the view recorded by the Expert Committee. This is

because, even Brazilian and Peruvian studies have added to the length of river Amazon the adjacent Para estuary and the longest connecting tidal canal. We must say that the river Nile is the correct answer and therefore

applicant must get improvement of 1.25 marks for his correct answer to question no.53, since Key on that aspect is wrong, even after relying upon the literature that is referred by the Experts Committee.

7 On perusal of the reasons recorded by the Tribunal, it

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is evident that the Tribunal has expressed inability to agree with

the view recorded by the Expert Committee and recorded its own

finding that Nile is the correct answer and proceeded to award

additional marks in favour of Respondent No.1. Similar is the case

in respect of question no.17. While recording reasons in paragraph

no.8 of the judgment, the Tribunal has recorded its disagreement

with the view expressed by Expert Committee and recorded a

finding that answer provided by the Commission is incorrect,

whereas, answer provided in first answer key is the correct answer.

8 On perusal of the judgment delivered by the Tribunal,

it is evident that the Tribunal has entered into the area of

examining correctness of the opinion expressed by the Expert

Committee and recorded a finding that the opinion given by the

Expert Committee is incorrect. The Tribunal has taken upon itself

the task of examining the literature relied upon by the Expert

Committee and provided by the petitioner and has arrived at a

conclusion that the answers recorded in the revised answer key,

which was the basis for assessing performance of the candidate at

examination, was incorrect so far as it relates to two questions,

namely question no.17 and question no.53.

9 It is, thus, evident that the Tribunal has adopted role

of expert and encroached upon their field while examining

correctness of the answers provided by the Commission in the

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revised answer key. We are of the considered opinion that it was

not open for the Tribunal to encroach upon the field of experts and

record its own findings. The Tribunal cannot be said to possess

expertise to examine correctness of the answers provided by the

Commission. The Tribunal has exceeded its jurisdiction while

recording a finding that the answers provided by the Commission

in the revised answer key, relating to two questions, is erroneous.

In this context, it would be advantageous to refer to the judgment

of the Supreme Court in the matter of Himachal Pradesh Public

Service Commission Vs. Mukesh Thakur & another, reported in

(2010) 6 SCC 759. The Himachal Pradesh Public Service

Commission advertised 13 vacancies of Civil Judge (Junior

Division) providing the eligibility criteria and mode of selection.

Respondent, before the Supreme Court, tendered an application in

pursuance to advertisement and was called upon to appear for

written test. He failed to secure 45% marks in the paper of Civil

Law II though he had secured 50% marks in aggregate.

Respondent, before the Supreme Court, filed Writ Petition seeking

direction for revaluation of the paper of Civil Law II and

appointment to the said post as a consequential relief. The High

Court directed the appellant-Commission to produce answer sheet

of the Respondent and thereafter proceeded to pass an order

directing the appellant-Commission to arrange for a special

interview of the Respondent. The High Court recorded a finding

that there is inconsistency in framing question nos.5 and 8 and in

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evaluation of the answers to the said questions. The High Court

also directed to send answer papers of the Respondent to another

examiner and on revaluation, it was found that Respondent ought

to have secured 119 marks. On the basis of report of revaluation,

the High Court disposed of the writ petition directing the

Commission to issue letter of appointment to the Respondent.

10 The question, that arose before the Supreme Court, as

to whether in the absence of there being any provision for

revaluation or rechecking of answer sheets, was it permissible for

the High Court to direct revaluation of the answer sheets and as to

whether the Court can take the task of examiner/Selection Board

upon itself and examine discrepancies and inconsistencies in the

question papers and evaluation thereof. After considering rival

contentions, the Honourable Supreme Court, in paragraph 20 of

the judgment, has observed thus:

"20 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

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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."

11 In the reported matter, although selection process for

appointment of Civil Judges was a matter of challenge before the

High Court and objection was raised in respect of framing of

questions in the paper of Civil Law II, still the Supreme Court ruled

that it was not permissible for the High Court to examine question

papers and answer sheets itself when the Commission had

assessed inter se merit of the candidates. The Supreme Court has

observed that had it been other subjects like Physics, Chemistry

and Mathematics, it was not understood as to whether such course

could have been adopted by the High Court.

12 In the instant matter, the objections raised by

Respondent No.1 are referrable to the questions not concerning

Law, but in respect of Subjects Geography and General Knowledge.

The Tribunal took up itself the task of experts and in doing so,

overruled the opinion of experts. In our opinion, the Tribunal has

transgressed the limits while entertaining the challenge raised in

the Original Application. Apart from this, it is also to be taken

note of that whatever deficiencies, if any, are uniform to all those

candidates who appeared in the examination. The Tribunal ought

not to have entertained the petition of one candidate and issued

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directions to consider his claim. Consideration of claim of one of

the candidates, amongst numerous other similarly situated

candidates, is surely likely to cause injustice to those candidates

who have appeared for the examination and attempted those

questions. In our opinion, the Tribunal has exceeded its

jurisdiction in causing interference in the matter and issuing

directions to the Commission to consider claim of Respondent No.

1.

Respondent No.1 has placed reliance on the judgment

in the matter of State of U.P. and another Vs. Johri Mal,

reported in 2004 AIR SCW 3888 and more particularly paragraph

no.30 thereof, which reads thus:

"30 It is well settled that while exercising the

power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. In doing so, it is often argued by the defender of an

impugned decision that the Court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the

fact finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision maker's opinion on facts is final. But while examining and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the

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grounds of illegality, irrationality or procedural

impropriety. How far the Court of judicial review can reappreciate the findings of facts

depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational

or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touch-stone of the tests laid down by the

Court with special reference to a given case. This position is well settled in Indian

Administrative Law. Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the Court to review

the evaluation of facts by the decision maker."

14 According to Respondent No.1, for limited extent to

scrutinize the decision making process, it is always open to the

Court to review the evaluation of facts by the decision maker. It is

contended that the Tribunal has not committed any error in

entertaining the questions of facts while scrutinizing the decision

making process. We are afraid, that the submission canvassed by

the Respondent No.1, cannot be accepted for the reason that the

Tribunal, in the instant matter, has assumed the role of an expert

while entertaining the questions of facts and has even overruled

opinion of the experts. The Tribunal cannot be said to be

possessed of the expertise in the specialized field. Even in respect

of matters concerning the field of Law, as opined by the Supreme

Court, it is not permissible for the Courts or Tribunals to entertain

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the objection and substitute its own opinion in place of opinion of

the experts.

15 For the reasons recorded above, the judgment and

order passed by the Tribunal in Original Application No.769/2011,

decided on 13.12.2011, is unsustainable and deserves to be

quashed and set aside and same is accordingly quashed and set

aside.

Rule is accordingly made absolute. There shall be no

order as to costs. In view of disposal of Writ Petition, pending Civil

Application Nos.10728/2012 and 10729/2012 and 13559 of 2012

do not survive and stand disposed of.

                    U.D.SALVI                          R.M.BORDE
                  JUDGE                                  JUDGE
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