The Bihar Staff Selection ... vs Anil Kumar Sharma
2023 Latest Caselaw 5052 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.276 of 2020
     ======================================================

1. The Bihar Staff Selection Commission through its Secretary, Veterinary College, Patna- 800014.

2. The Chairman, Bihar Staff Selection Commission, Veterinary College, Patna- 800014.

3. The Secretary, Bihar Staff Selection Commission, Veterinary College, Patna-

800014.

4. The Controller of Examination, Bihar Staff Selection Commission, Veterinary College, Patna- 800014.

... ... Appellant/s Versus

1. Anil Kumar Sharma, Son of Marchhu Sharma Resident of Village and P.O.-

Fakharpur, P.S.- Arwal, Dist- Arwal, Bihar- 804401.

2. Sudhanshu Kumar, Son of Ganesh Ji Pathak Resident of at and P.O.- Satwar, P.S.- G.V. Nagar, District- Siwan, Bihar- 841439.

3. Bikas Kumar Jha, Son of Sharwan Kumar Jha Resident of at and P.O.-

Shahpur, P.S.- Muffasil, Dist- Begusarai, Bihar- 851129.

4. Shakil Ahmed Khan, Son of Md. Wasim Khan Resident of Koshi Colony, Quarter No.- E/15, P.O. and P.S.- Birpur, Dist- Supaul, Bihar- 854340.

5. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

6. The Principal Secretary, Department of General Administration, Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Satyabir Bharti, Advocate Mr. Abhishek Anand, Advocate Ms. Kanu Priya, Advocate Ms. Sushmita Sharma, Advocate

For the Respondent/s : Mr.Kumar Kaushik, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

Date: 05-10-2023

The impugned judgment directed uploading of

key answers on the website of the respondent-Bihar Staff

Selection Commission (for brevity 'the Commission'),

invitation of objections from the candidates with respect to the

questions and answers, placing of it before a body of experts

and revision of results of the preliminary examination, if any

deletion or alteration is made in the questions or answers. It

was also directed that again the model key answers after

scrutiny by the expert body would be put in the website, in

accordance with which the results would be reviewed and if

no alteration or modification is required the results already

declared of the preliminary test would be given effect to.

There was a further direction to supply the marks obtained by

the petitioners in the preliminary test.

2. The learned Single Judge, while issuing the

said directions, emphasized the aspect of fairness and

transparency in the process of selection based on the judgment

of the Hon'ble Supreme Court in Kanpur University and

Others vs. Samir Gupta and Others; (1983) 4 SCC 309 and

the consistent dismal track record of the Bihar Staff Selection

Commission in its conduct of Multiple-Choice Objective Type Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

Tests.

3. We have heard Shri Kumar Kaushik, learned

Counsel for the petitioners-respondents herein, and Shri

Satyabir Bharti, for the respondents-appellants; the

Commission and its officers.

4. Shri Kaushik has highlighted the decision in

Samir Gupta (supra), as emphasized by the learned Single

Judge, which took note of the fact that there was always an

option to keep the answer key secret; which, however, would

be a malady worse than the disease, a disclosure would

endeavour to cure; which disease is the suffering of injustice

by the candidates, in silence and without any remedy. Learned

counsel also placed reliance on Rishal & Ors. v. Rajasthan

Public Service Commission & Ors.; (2018) 8 SCC 81; and

Harkrit Singh Ghuman v. Punjab & Haryana High Court &

Ors.; 2022 SCC OnLine SC 1111.

5. Shri Bharti, learned counsel appearing for the

appellant, on the other hand, highlighted, the caution

expressed by the Hon'ble Supreme Court in Ran Vijay Singh

& Ors. v. State of Uttar Pradesh & Ors.; (2018)2 SCC 357

by reason of the evaluation made by the courts of the answers

to an objective type test, thus creating a 'mess' (sic), which Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

could have been avoided by relying on the decision of expert

bodies. Learned Counsel also relied on a decision of this

Court in Bihar Police Subordinate Service Commission

through its Secretary & Ors. Vs. Ramesh Kumar & Ors.;

2019(2) PLJR 416 and a decision of the Hon'ble Supreme

Court in Vikesh Kumar Gupta v. State of Rajasthan & Ors.;

(2021) 2 SCC 309.

6. The subject 'Objective Type Test' was the

preliminary test in which 1st Inter Level Combined

Competitive Examination was held for 38 posts, with

numerous vacancies, by advertisement dated 01.09.2014. The

examinations were first scheduled from 29.01.2017 to

05.02.2017; which were cancelled. A re-test was conducted

from 8th to 10th December, 2018 in two sessions per day,

totaling six sessions. There were 150 questions in each

session and in total there were 900 questions in each of the

sessions, which were different. A total of 18,57,000

candidates applied for the test and 8,82,899 appeared for it.

The successful candidates numbered 63,739 against 13,120

vacancies.

7. The sole grievance of the petitioners was that

the model answer key was not uploaded on the website, which Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

is required on the grounds of fairness and transparency. It was

argued that by virtue of the directions issued in Md. Nafis

Nawaz Khan & Anr. vs. The State of Bihar & Ors.; (2016) 1

PLJR 667, it was mandatory for the Commission to publish

the model answer key, given opportunity to the candidates to

raise objections and then have the objections considered by an

expert body. It was also averred that the petitioners had

approached the Public Information Officer of the Commission

under the Right to Information Act, 2005 (for brevity 'Act of

2005') and also filed an appeal under the said Act of 2005 for

supply of OMR sheets, model answer key and the marks

secured by the petitioners.

8. In the counter affidavit, it was specifically

averred that the question of uploading of model answer key

came up for consideration before the Commission, suo moto,

and it was decided that it would be better that the answers

supplied by the question setters be scrutinized by a team of

experts, based on which an evaluation shall be done. Out of

the 900 questions, the team of experts had come to the

conclusion that 21 questions were either wrongly framed or

had incorrect answers and there were printing mistakes in two

questions. The Commission decided to delete these 23 Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

questions and it was felt that this is a more comprehensive

procedure since otherwise only the questions and answers

objected to would be put to an expert body. It was also

asserted by the Commission that there was no mandate that in

every MCQ test there should be a publication of model

answer keys and even the Union Public Service Commission

does not carry out such a procedure. There was also a

contention taken up by the Commission that this would ensure

expeditious conclusion of recruitment process, which,

otherwise, would lead to delay for reason of litigations

initiated.

9. The learned Single Judge kept in mind the

limited jurisdiction under Article 226 of the Constitution,

especially in a judicial review wherein there can be no

substitution of the opinion of an expert body, especially when

it comes to testing the veracity or correctness of answers to

questions from different subjects and areas. There should be a

finality given to the opinion of such experts, but still there is

also an obligation on the recruiting agency to maintain

transparency and fairness in the process of selection, which

would be furthered by the publication of the answer key,

inviting of objections, verification of objections by an expert Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

body and re-evaluation based on the suggestions of the expert

body, was the finding. A number of decisions were cited, from

which copious extracts were made to find that the option

chosen by the Commission to expedite the process of

selection created a situation where the candidates did not have

the opportunity to question the correctness of the results. The

learned Single Judge also highlighted the explanation of the

Commission in so far as the practice of uploading mark-lists

giving rise to unnecessary litigations; which was the malady

said to be worse than the disease in Samir Gupta (supra) thus

bringing that contention itself within the teeth of the dictum of

the Hon'ble Supreme Court.

10. Before we look at the merits of the matter, we

have to notice that the main examinations scheduled were

conducted by virtue of an interim order dated 08.12.2020 in

the appeal. A Division Bench of this Court had stayed the

impugned judgment finding prima facie no infraction of

statutory rules or directions issued on the judicial side. The

main examination, which was scheduled on 13.12.2020 was

directed to be proceeded with; the candidates appearing in the

examination to be notified; of the appearance or eventual

selection not conferring any right upon them, which would be Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

subject to the result of the appeal. The selection is said to have

concluded and the vacant posts filled up in the year 2021. The

appointed persons have been continuing in service and it has

to be observed that the appellant was directed to take out

substituted service; which has been done, but none have

appeared to contest the matter or defend the conduct of the

preliminary test and thus, support the Commission. Be that as

it may, it has also to be noticed that none, but the four writ

petitioners in the case agitate the cause as of now.

11. We bow down to the proposition, as laid down

in Samir Gupta (supra); half a century back. 'If the key

answers were kept secret in this case, the remedy would have

been worse than the disease because, so many students would

have had to suffer the injustice in silence' (sic) was the

statement made by the learned Judges in that case; based on

the facts of that case. The Hon'ble Supreme Court appreciably

spoke of the measure of the University in having published

the answer keys, which gave a sense of fairness and an

opportunity to scrutinize the system of examinations.

However, it has to be emphasized that publication of answer

keys was not laid down as a rule, by neither the afore-cited

decision nor in the various decisions cited before us. Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

12. In M/s Nafis Navas Khan (supra), a Division

Bench of this Court was considering the validity of a Teachers

Eligibility Test (TET) in which on detection of incorrect

answers, the Authority which conducted the test decided to

grant one mark to all those questions found wrong by the

expert body. In a writ petition, a learned Single Judge faulted

the said decision on the ground that the candidates who

marked incorrect answers would steal a march over the

meritorious ones if such grace marks are allowed for incorrect

answers. It was directed that there would be a re-evaluation

after deletion of those questions found to be wrongly framed.

The Division Bench approved the directions of the learned

Single Judge and also issued general directions to maintain

fairness and ensure transparency in the examination process.

One of such directions was in the following manner:-

"40. (a) Immediately after a multiple choice question test is held, it shall be obligatory for the Committee or the Body, which conducts such a test, to undertake an exercise, before evaluating the answer-sheets, to ascertain whether the questions were correctly framed having definite answers. In case any objections are invited from the candidates and such objections are received, they must be looked into by a body of the experts, who would not only be required to ascertain whether the questions were correctly framed or not, but they would also be required to examine as to whether the model answers, prepared by the question-setter, are correct or not, for the purpose of correct evaluation of answer-sheets;

Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

The Division Bench, it has to be emphasized, did not lay

down publication of model answer key as an imperative rule,

but merely spoke of such publication as one measure by

which the authority could ascertain whether the questions are

correctly framed and the answers too are correct.

13. Rishal (supra) was a case in which the answer

keys were published and the objections invited, which gave

rise to a number of litigations in which the revised answer key

was directed to be published along with the report of the

experts. The second round of litigation was dismissed by the

learned Single Judge and the Division Bench also rejected the

appeals. While directing to revise the results in accordance

with the report of the expert committee appointed by the

Hon'ble Supreme Court, it was reiterated that publication of

key answers is a worthy step to achieve transparency and

provide an opportunity to the candidates to assess the

correctness of their answers.

14. Harkirat Singh Ghuman (supra) was one

other case in which the Hon'ble Supreme Court interfered

with the recruitment and opined that to ensure transparency,

OMR sheets may be provided to the candidates and a

provisional answer key uploaded inviting objections to ensure Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

fairness in the process of selection. While opining so, it was

also stated in paragraph-26 that "This is one of the

mechanisms by which fairness and transparency which is a

sine qua non in the public employment can be resorted to"

(sic).

15. We cannot but observe that the publication of

answer keys, inviting of objections, putting the objections to

an expert body and re-evaluation on the basis of any

modifications suggested by the expert body, has been stated to

be one of the methods to ensure transparency and fairness of

the selection process; but not the only method or exercise.

16. In Bihar Police Subordinate Service

Commission (supra), a Division Bench of this Court noticed

the judgment in Central Board of Secondary Education v.

Aditya Bandopadhyay; (2011) 8 SCC 497, in which it was

declared that the candidates could move an application for

supply of answer books under the Right to Information Act in

order to raise any grievance. There is a reference to the

petitioners having filed an application under the Right to

Information Act and a further appeal also, but there is nothing

stated as to what transpired in the said proceedings. Even in

the present proceedings, there is nothing produced as to any Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

wrong answers having come in the answer keys based on

which evaluation was conducted, as discernible from a

response to the RTI query.

17. Ran Vijay Singh (supra) summarized the

principles regulating the scope of judicial review and

emphasized that sympathy or compassion do not play any role

in the matter of directing or not directing re-evaluation. The

entire process of selection conducted by the U.P. Secondary

Education Services Selection Board and the various litigation

which ensued, were stated to have created a mess, especially

when a learned Single Judge had entertained the batch of writ

petitions when an earlier one was dismissed by a co-ordinate

bench. The learned Judges had specifically referred to

Maharashtra State Board of Secondary and Higher

Secondary Education v. Paritosh Bhupeshkumar Sheth;

(1984) 4 SCC 27, which reiterated the cardinal principle that

it is not within the legitimate domain of the Courts to

determine whether the purpose of a statute can be served

better by adopting any policy different from what has been

laid down by the legislature or its delegate and to strike down

as unreasonable a bye-law, merely on the ground that the

policy enunciated therein, does not meet with the approval of Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

the Courts in regard to its efficaciousness for implementation

of the object and purposes of the Act. It was also declared that

in the absence of specific provision conferring a right upon an

examinee to have his answer books re-evaluated, no such

direction can be issued.

18. In Ran Vijay Singh (supra), the High Court

had itself ascertained the corrections of the key answers to

seven questions, which was held to be beyond its jurisdiction.

The Hon'ble Supreme Court, in the medley of facts, which led

to the observation that it created a mess, postulated for itself

three options; (i) to nullify the entire re-evaluation, (ii) to go

by the third set of results; (iii) or cancellation of the

examination itself; which third option was categorically found

to be not at all feasible. Only considering the massive exercise

undertaken by the Board, pursuant to the directions of the

High Court, the middle path was chosen to direct declaration

of the third set of results, however, protecting those

candidates who may be declared unsuccessful, who were also

appointed as trained graduate teachers as a result of the first

and the second declaration of results.

19. We are faced with a like situation, where a

number of candidates who turned out successful in the main Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

examination have been appointed and the petitioners herein

are those who did not turn out successful in the preliminary

examination itself.

20. Vikesh Kumar Gupta (supra) also held that

re-evaluation is an option only if the rules permitted it and the

High Court cannot examine the question papers and answer

sheets by itself, particularly, when the Commission had

assessed the inter se merit of the candidates. It was opined

that the Court should show deference and regard to the

recommendations of an expert committee.

21. In the background of the above declarations

of law applicable to the facts of each case, we have to look at

the present controversy agitated in the above case. We cannot,

with all the respect at our command, agree with the learned

Single Judge that the Commission while adopting one option

had only kept in mind the aspect of the ensuing litigation, for

reason of which alone, the publication of the answer key was

not permitted. We have to notice the specific contention taken

in the counter affidavit that the Commission had considered

the issue and had decided to have the questions and answers

examined by a committee of experts. It has also come out that

23 questions were deleted from consideration out of a total of Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

900 questions. Though the expediency in making recruitments

would have been one of the considerations, we cannot find it

to be the sole and reigning consideration in deciding the

matter. As has been held, there was a method chosen for

ensuring transparency and fairness, which was to put the

questions and answers through an expert committee

constituted, and comprising of experts in different subjects.

As has been pointed out in the various decisions, there are

various options available and this was one of the option

available to the Commission; the choice of which cannot be

faulted.

22. All India Railway Recruitment Board v. K.

Shyam Kumar; (2010) 6 SCC 614, examined a similar issue,

both under the principles of Wednesbury unreasonableness

and the test of proportionality. The Wednesbury principles,

apply to a decision which is so reprehensible in its defiance of

logic or of accepted moral or ethical standards, that no

sensible person who applies his mind to the issue to be

decided could have arrived at the subject decision, as

observed by the Hon'ble Supreme Court. Proportionality, on

the other hand, is a test which is capable of more precise and

fastidious examination of the issue, requiring an intrusive Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

review of a decision made by a public authority, wherein the

courts venture to "assess the balance or equation" struck by

the decision-maker. In that case also, the learned Judges found

the Board, which cancelled the examination to have had three

options, out of which one was chosen. The choice was found

to be reasonable and also satisfying the proportionality test.

23. We find that in the present case also, the

decision of the Commission to carry out an exercise of the

entire answers to the 900 questions and also the questions,

being verified by an expert authority based on which 23

questions and answers were deleted was definitely a

reasonable option. It has to be observed that definitely there

could have been a publication of the model answers in which

event, as has been stated by the Commission itself, the

examination would have been confined to those questions and

answers on which an objection was raised. A more

comprehensive examination was done by an expert body in

the present case and it can be definitely said that this struck a

correct balance. Here also, the action of the Commission

satisfies the test of reasonableness and also of proportionality.

It has to be reiterated that at no point, any of the decisions

cited; right from the Samir Gupta (supra), held that the Patna High Court L.P.A No.276 of 2020 dt. 05-10-2023

publication of answer sheets and calling for objections would

be the only procedure by which transparency and fairness can

be ensured.

24. On the above reasoning, we allow the appeal

setting aside the judgment of the learned Single Judge.

25. Interlocutory application(s), if any, shall stand

closed.

(K. Vinod Chandran, CJ)

Partha Sarthy, J: I agree.

(Partha Sarthy, J) Sujit/-

AFR/NAFR                NAFR
CAV DATE                25.09.2023
Uploading Date          06.10.2023
Transmission Date