Himachal Pradesh High Court

Jagdish Kumar vs State Of Himachal Pradesh on 23 December, 2021

Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                       .

            ON THE 23rd DAY OF DECEMBER, 2021.

                           BEFORE





         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN

                              &

     HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA



         Between:-
                   r        to
               CIVIL WRIT PETITION No. 7513 of 2021



         JAGDISH KUMAR, S/O SH. RANJEET SINGH,

         AGED 42 YEARS, R/O V.P.O. JAMTHALA,
         TEHSIL SADAR, DISTRICT BILASPUR,
         OCCUPATION-UNEMPLOYED.            ......PETITIONER.

         (BY SH. ADARSH K. VASHISTA, ADVOCATE)



         AND




    1.   STATE OF HIMACHAL PRADESH THROUGH
         ITS PRINCIPAL SECRETARY (EDUCATION),
         TO THE GOVDERNMENT OF HIMACHAL





         PRADESH.

    2.   HIMACHAL PRADESH PUBLIC SERVICE





         COMMISSION THROUGH ITS SECRETARY.
                                    ......RESPONDENTS.

         (SH. ASHOK SHARMA, ADVOCATE GENERAL,
         WITH SH. RAJINDER DOGRA, SENIOR ADDITIONAL
         ADVOCATE GENERAL, SH. SHIV PAL MANHANS
         AND SH. HEMANSHU MISRA, ADDITIONAL ADVOCATE
         GENERAL, FOR RESPONDENT-1)

         (SH. VIKRANT THAKUR, ADVOCATE,
         FOR RESPONDENT-2)




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                                      2




               This petition coming on for admission after
    notice this day, Hon'ble Mr. Justice Tarlok Singh




                                                               .
    Chauhan, passed the following:





                          ORDER

The instant petition has been filed for grant of

the following substantive relief:-

"That writ in the nature of mandamus may kindly be

issued directing the respondent No.2 to re-evaluate the answer of petitioner w.r.t. to 24, 34, 68 & 84 (series D) in view of the study material

placed on record and award the due and

admissible marks in his favour by referring the answers of the petitioner to a committee of experts. The respondent No.2 may further be

directed to recommend the candidature of petitioner to the respondent No.1 for appointment against the post of Lecturer (Pol. Sci) (School-new)

Class-III (Non-Gazetted)."

2. Respondent No.1 through respondent No.2-

Commission initiated the recruitment process by way of

Advertisement No.18/2019 dated 02.11.2019 for various

posts of Lecturer (School-New) Class III (Non-Gazetted) on

contract basis and as many as 40 posts in the subject of

Political Science were advertised out of which 4 posts were

reserved for economically weaker section. The petitioner

being fully eligible applied for the same and appeared in the

written examination under Roll No. 36002366. The

pre-revised and revised answer key were released on

14.03.2020 vide Annexure P-5(Colly). However, the

grievance of the petitioner is that the answers to questions

No.24, 32, 68 and 84 (Series D) are still incorrect, hence,

this petition.

3. What would be the scope of judicial review in

the given facts and circumstances of the case has recently

been considered by this Bench in CWP No. 4999 of 2021,

titled Upanshu Sharma vs. State of Himachal Pradesh

and another and connected matter, wherein it was

observed as under:-

"12. The powers of this Court to have opinion

different to that of the experts, in the matter of evaluation of answers in competitive examination, is

well defined. In this context, reference can be made to the judgment passed by the Hon'ble Supreme

Court in Maharashtra State Board of Secondary and Higher Secondary Education and another vs. Paritosh Bhupeshkumar Sheth and others (1984) 4 SCC 27, wherein it has held as under:

"29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely

reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those

.

formulated by professional men possessing

technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to

make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences

which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, r avoid any decision or interpretation of a statutory provision, rule or bye-law which

would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court

while deciding the instant case."

13. In Himachal Pradesh Public Service Commission vs. Mukesh Thakur and another

(2010) 6 SCC 759, the Hon'ble Supreme Court has

held as under:

"20. In view of the above, it was not permissible for the High Court to examine

the question paper 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 No.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 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."

14. In Central Board of Secondary Education through Secretary, All India Pre-Medical/Pre-

Dental Entrance Examination and others vs. Khushboo Shrivastava and others (2014) 14 SCC 523, the Hon'ble Supreme Court while noticing

the judgment in Maharashtra State Board of Secondary and Higher Secondary Education case (supra) has held as under:

"11. In our considered opinion, neither the

learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to

Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters......."

15. A Division Bench of this Court in Rustam

Garg and others vs. Himachal Pradesh Public Service Commission, ILR 2016 Vol. (2), 591,

while dealing with an identical proposition has held as under:

"17. In view of the aforesaid exposition of law, we have no doubt in our mind that even when the revised key answers are impugned with respect to questions relating to the subject of law, it is not permissible for this Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates. It is not for the Court to take upon itself the task of the statutory

authorities and substitute its own opinion for that of the experts."

.

4. The similar reiteration of law can be found in

another decision of the learned Division Bench of this Court,

authored by one of us (Justice Tarlok Singh Chauhan) in

Bhupinder Singh vs. State of Himachal Pradesh and

another 2021 (1) Him. L.R. (DB) 6 and in CWP No.

5.

r to 5524 of 2021 titled Smt. Mamta Thakur vs. State of

H.P. and Others, decided on 27.09.2021.

We may, at this stage, refer to a fairly recent

judgment rendered by three Judges of the Hon'ble Supreme

Court in Vikesh Kumar Gupta and another vs. State of

Rajasthan and others (2021) 2 SCC 309 wherein the

Hon'ble Supreme Court held that though re-evaluation can

be directed, if rules permit, however, deprecated the

practice of re-evaluation and scrutiny of the questions by

the Courts which lack expertise and it was further held that

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. Courts have to show deference and

consideration to the recommendations of the Expert

Committee, who have expertise to evaluate and make

recommendations. It shall be apposite to refer to the

relevant observations as contained in paragraphs 13 to 17

which read as under:-

"13. The point that arises for the consideration of this Court is whether the revised Select List dated 21.05.2019 ought to have been prepared on the

basis of the 2nd Answer Key. The Appellants contend that the Wait List also should be prepared on the basis of the 3rd Answer Key and not on the basis of

the 2nd Answer Key. The 2nd Answer Key was

released by the RPSC on the basis of the recommendations made by the Expert Committee constituted pursuant to the directions issued by the

High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before

the Division Bench which were disposed of on

12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis

of the 2nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed the RPSC to prepare revised Select List and apply it only to the Appellants before it.

14. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re-

.

evaluation and scrutiny of the questions by the

courts which lack expertise in academic matters. It is not permissible for the High Court to examine the

question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur (2010)

6 SCC 759. Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and

make recommendations (See- Basavaiah v. H.L.

Ramesh (2010) 8 SCC 372.

15.Examining the scope of judicial review with

regards to re-evaluation of answer sheets, this Court in Ran Vijay Singh v. State of U.P. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize

the answer sheets of a candidate as it has no expertise in the matters and the academic matters

are best left to academics. This Court in the said judgment further held as follows: (Ran Vijay Singh

case9, SCC pp. 369-70, paras 31-32)

"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."

.

16. In view of the above law laid down by this Court, it was not open to the Division Bench to have

examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated

12.03.2019. Reliance was placed by the Appellants on Richal v. Rajasthan Public Service Commission (2018) 8 SCC 81. In the said judgment, this Court

interfered with the selection process only after

obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is

not relevant for adjudication of the dispute in this case.

17. A perusal of the above judgments would make it clear that courts should be very slow in interfering

with expert opinion in academic matters. In any event, assessment of the questions by the courts

itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the

serious damage caused to administration due to lack of sufficient personnel."

6. Keeping in view the aforesaid exposition of law,

the relief, as claimed by the petitioner cannot be granted.

The petitioner has not been able to show any provision

governing the process of selection from which he may

derive the relief as claimed. The relief as claimed in this

petitioner.

r to petition is not permissible and cannot be granted to the

7. Lastly and more importantly, even this petition

otherwise will not be maintainable as the petitioner failed

to even file his objections to key answers and is thus

estopped from filing the instant petition.

8. Accordingly, there is no merit in this petition and