Harshit Sharan vs The State Of Bihar
2023 Latest Caselaw 4547 Patna

        IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Letters Patent Appeal No.111 of 2023
                                      In
                Civil Writ Jurisdiction Case No.17803 of 2022
     ======================================================

1. Harshit Sharan, Son of Akhilesh Kumar Sharan, Resident of Town-

Motihari, P.O. and P.S.- Town Thana, District- East Champaran, Bihar- 845401.

2. Awadesh Kumar Chaudhary Son of Radhakant Chaudhary, Resident of Village- Gour Andhara P.O.- Andhara Tharhi, P.S.- Rudrapur, District- Madhubani, Bihar- 847401.

3. Munni Kumari Daughter of Late Fagu Besra Resident of village- Kushmaha, P.O.- Dariyapur, P.S.- Haveli, Kharagpur, District- Munger, Bihar- 811213.

4. Anuradha Kumari Daughter of Ajay Sharma Resident of Village-

Panchmahala, P.O.- Aganda, P.S.- Belaganj Gaya, Bihar- 804403.

5. Vivek Kumar Pandey Son of Baleshwar Nath Pandey Resident of P.S.-

Agamkuan, P.O.- Lohia- Nagar, Flat No,.- 1903, Jagdish Residency, Shanti Niketan Colony, Bhoot Nath Road, in front of SBI, NMCH, Kankerbagh, B.H. Colony Patna, Bihar- 800026.

6. Birendra Kumar S/o Kaushlendra Kumar Singh, Resident of P.S.- Bazar Samati, P.O.- Rajendar Nagar Road No.- 13B, Rajendra Nagar, Gumti, Shahpur, District- Patna, Bihar- 800016.

7. Ashish Deo Son of Tapeshwar Prasad Singh Resident of Town- P.O.-

Lataura, P.S.- Triveni Nagar, District- Supaul Bihar- 852139.

8. Ayush Chawla Son of Ramswaroop Prasad Yadav Resident of village-

Bakhari, P.S.- Fatehpur, P.O.- Nagwan Tarawan District- Gaya, Bihar- 805128.

9. Mumtaz Ali Son of Shaukat Ali Mohiuddinagar Resident of Town-

Samastipur, P.S.- Mohuddin Nagar, P.O.- District Bihar- 848501.

10. Om Prakash Son of Surendra Mishra, Resident of Village- Gandhinagar Bhuidhara, P.O.- Dhurlakh, P.S.- Musassil, District- Samastipur, Bihar- 848101.

11. Rishi Raj Son of Tuntun Singh Resident of Village- Nakki Nagar, P.S.-

Keshopur, P.O.- District- Jamalpur, Munger, Bihar- 811214.

12. Abhishek Kumar Son of Prem Kumar P.O.- Mahatma Gandhi Nagar, P.S.-

Agamkuan Samptachak Bhootnath Colony, District- Patna, Bihar- 800026.

13. Vipul Kumar Singh Son of Umesh Singh Resident of village- Bin Bahuara, P.O.- Nagra, P.S.- Madhuara, Saran, Bihar- 841442.

14. Digvvijay Singh, Son of Mohan Singh Resident of Gadhamalpur Balia, P.S.-

Pakri, P.O.- Garhmalpur, District- Ballia, Uttar Pradesh- 221709.

15. Subhash Kumar Son of Ram Swarsth Yadav Resident of village- Harnnahi, P.S.- Phesar, P.O.- Unthu, District- North West Delhi, Delhi. Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

16. Mona Daughter of Jyoti Kumar Resident of Pipra, P.O.- and P.S.- Parsa Bazar, District- Patna, Bihar- 804453.

17. Neeraj Kumar Singh Son of A.K. Singh Resident of P.O. and P.S.-

Manimajra, District- Chandigarh- 160101.

18. Nikhil Ranjan Tripathi Son of Udhao Prasad Tripathi Resident of Sikhara, P.O.- Sabarpur, P.S.- Khondare, District- Gonda, State- Uttar Pradesh, 271313.

19. Sarvesh Kumar Son of Shashi Bhushan Prasad, Resident of Village-

Pasraila, P.S.- Rajauli, P.O..- Targir, District- Nawada, Bihar- 805125.

20. Amrita Kumari Daughter of Krishna Murari Sharma, Kaswan Kasain, P.O.-

Kaswan, P.S.- Parasbigha, District- Jehanabad, Bihar- 804419.

21. Subhadra Bharti Daughter of Late Ram Barayan Singh Chowk Nagar Ward No.- 11, P.S.- and P.O.- Jainagar, District- Madhubani, Bihar- 847226.

... ... Appellant/s Versus

1. The State of Bihar through the Principal Secretary, General Administration Department, Government of Bihar, Ptna.

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

3. The Special Secretary, General Administration Department, Government of Bihar, Patna.

4. The Bihar Public Service Commission, Bailey Road, Patna.

5. The Chairman, Bihar Public Service Commission, Bailey Road, Patna.

6. The Secretary, Bihar Public Service Commission, Bailey Road, Patna.

7. The Joint Secretary-cum-Controller Examination, Bihar Public Service Commission, Bailey Road, Patna.

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

For the Appellant/s : Mr.Abhinav Srivastava, Advocate For the B.P.S.C. : Mr. P.K. Shahi, AG Mr. Lalit Kishore, Sr. Advocate Mr. Sanjay Pandey, Advocate Mr. Nishant Kumar Jha, Advocate For the State : Mr.P.K. Verma (AAG-3) Mr. Sanjay Kumar Ghosarvey, A.C. to AAG-3 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 13-09-2023

1. A massive selection and appointment exercise

called the 67th Combined Competitive Examination was

conducted by the Bihar Public Service Commission (for brevity

"the Commission"), the 4th respondent herein. The selection is

conducted for appointment to 16 different posts under 16

different services and cadre, of the State and the total vacancies

advertised are 555.

2. The process of selection includes a Preliminary

Examination of the MCQ type, a Main Written Examination and

an Interview. The advertisement produced along with the writ

petition, was dated 24.09.2021. The Prelims were conducted on

30.09.2022. After the examinations, the Model Answer Key was

uploaded on 01.10.2022 calling for objections, if any, to the

answers. The final Answer Key and the result of the Preliminary

Examination was published on 17.11.2022. The schedule of

Main Examinations was published on 25.11.2022, with

examinations to be held on 29.12.2022 to 31.12.2022, as per

Annexure-5. Subsequently, on 26.11.2022, a revised result was

published by the respondent-Commission wherein the answer to

one of the questions in the English and Hindi version were

found to be under different alphabetical choices. The appellants Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

have challenged the final results published on the ground that

there have been changes made to the correct answers for nine

questions, which according to them is contrary to that coming

out from the Text Books prepared by the National Council of

Educational Research and Training (NCERT) and others,

Encyclopedia Britannica, the news uploaded by the All India

Radio, the relevant pages of the U.N. General Assembly Draft

Resolutions and so on and so forth.

3. Immediately, it is to be noticed that nowhere in the

writ petition there is an averment with respect to the answer

marked by the individual petitioners as against the questions, the

answers to which are objected to. Definitely, it cannot be the

contention that all the writ-petitioners had marked the correct

answer, as they discern from the various authoritative books and

documents, with respect to all the nine questions identically. The

attempt is for a re-evaluation, on the mere submission that the

answers to nine out of the 150 questions are wrong according to

the specific documents pointed out by the writ-petitioners. This

is not to say that the answers projected by the appellants are

definitely correct; especially when the Commission through its

counter affidavit speaks of repeated evaluation made by

different Expert Committees both on the objections raised and, Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

on the discretion exercised by the Commission. The appellants,

on the aforesaid contention of nine questions having been given

wrong answers seek a re-evaluation, when the main examination

has already been conducted.

4. The learned Advocate General prays for an

immediate hearing especially on the ground that the

Commission has deferred the publication of the results only on

the ground of the pendency of the appeal. The writ petition was

filed on 17.12.2022 before the scheduled main examination and

the matter having come up before the learned Single Judge on

22.12.2022 the writ petition stood dismissed in limine. The main

examinations were held between 29.12.2022 to 31.12.2022. The

appeal was filed on 13.01.2023 wherein there was no stay

granted despite which the Commission has withheld the results,

out of deference to the principle of lis pendens.

5. We heard the matter elaborately on 29.08.2023 and

after hearing the learned Advocate General we were of the

opinion that there should be a counter affidavit filed placing on

record the arguments addressed, especially since the writ

petition was dismissed in limine; which is now placed on record

in the appeal.

6. Shri Abhinav Srivastava, learned counsel appearing Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

for the appellants, vehemently contended that the challenge

raised is a very serious one especially considering the fact that

the future of the appellants is at stake and all of them have failed

to reach the minimum bench-mark of the cutoff marks in their

respective categories; falling short by one or two marks.

Immediately, we have to notice that even if re-evaluation is

conducted, there is no guarantee that the individual appellants

would get even one mark more, since as specifically noticed

herein above, there is no averment as to which of the appellants

marked the answers, which according to them is correct, in so

far as the nine questions highlighted. There is not even a bland

statement that all the appellants had marked the correct answers

pointed out by them, as against the nine questions. Further, we

reminded the learned counsel that no single case can be

considered more serious than the other, since every litigant

approaches this Court with all seriousness and in the hope that

their grievances would be addressed judiciously, equitably and

with deep thought and analysis. We cannot place any case on a

pedestal, above others, as being more serious in nature though

there could be expediency urged by reason of advancing age,

irreparable injury and many other grounds; one of which would

be that urged in the present case of the selections being held up Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

indefinitely for reason of the pending appeal.

7. The Commission has not proceeded with the

selection, only since, if a reevaluation is ordered then there

would be the question of a fresh conduct of Main Examinations,

if more persons obtain the cutoff marks. In this context, we also

have to observe that there can also be persons in the revised

result being omitted; which would again bring forth the

compelling objection of none of the successful candidates

having been impleaded in the writ petition, even in a

representative capacity. On a conspectus of the aforesaid

reasoning, we reject the contention of the learned counsel, in so

far as a primacy to be given to the present case, in its evaluation,

which we would assert, we do in every case which comes before

us, and otherwise we would be failing in our onerous duty, as

enjoined upon by the Constitution of India and as expected by

the citizenry of this land.

8. The learned Advocate General also raised a

preliminary objection in so far as the appellants having not

objected to the answer-key published when objections were

invited. This was countered by the learned counsel for the

appellants pointing out that many of the corrections were made

even without any objections and some of the appellants had Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

raised objections with respect to the questions & answers. In

any event, when the appellants raised the question of incorrect

answers having been shown in the answer-key for the purpose

of a reevaluation, this Court is bound to consider the challenge

on the anvil of the larger public interest involved, especially

looking into whether the defects pointed out are gross enough to

interfere with a due selection process.

9. The learned Single Judge found that the writ-

petitioners cannot challenge the process, much less the

assessment criteria as incorrect, when they have with open eyes

applied for the post and subjected themselves to the procedure

of selection as detailed in the advertisement. This assumes

significance, especially when the opportunity provided for

raising objection was not availed by the writ-petitioners.

10. With due respect, we are unable to accept the said

proposition since the appellants do not challenge the process of

selection or the method of evaluation or even the assessment

criteria, but merely points out that with respect to nine

questions, the answer-key adopted by the Commission indicates

wrong answers. It is also not correct to say that none have filed

objections since some of them have raised their objections and

in any event, the questions pointed out are said to be those in Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

which there were corrections made by the Commission suo

motu, on an expert evaluation. The learned Single Judge also

negatived the ground raised of the corrections in the answers

made by the Expert Committee, having not disqualified any

single person, but only made room for 15 additional candidates.

The said contention alone could not have resulted in an

interference being caused to the publication of results of the

Preliminary Examination. We find our complete agreement with

the reliance placed by the learned Single Judge on the decision

of the Hon'ble Supreme Court in Ran Vijay Singh and Others

v. State of Uttar Pradesh and Others; (2018) 2 SCC 357.

Learned counsel for the appellants also relied on a decision of

the Hon'ble Supreme Court in Richal and Others v. Rajasthan

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

11. Richal (supra) was a case in which the Hon'ble

Supreme Court issued directions to reevaluate the answer-sheets

at least with respect to the persons who had approached the

Court and who were not appointed till that date. Therein, again a

massive exercise was conducted wherein more than 13,000

posts of school lecturers for various subjects were advertised.

The examination consisted of two papers, one in General

Studies and the other in the respective subject. The Commission Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

declared the result against which several writ petitions were

filed, in which there was a direction to upload the revised

answer-key along with report of experts on the website. A report

was published deleting 18 questions in Paper-I upon which the

second round of litigation commenced, which was dismissed

both by the learned Single Judge and the Division Bench. An

Expert Committee was appointed by the Hon'ble Supreme

Court wherein over all 22 answers in all the nine subjects for

which the Experts were appointed, reexamined and revised the

answers. Again, objections were raised even with respect to the

Expert Committee's recommendations.

12. In Richal (supra), a decision in Kanpur

University v. Samir Gupta; (1983) 4 SCC 309 was referred to

wherein it was said that an easy way out of such controversies

being raised, is not to publish the key-answers at all, which

would be a remedy worse than the disease, of subjecting the

applicants to grave injustice. The learned Judges agreed that the

key-answers should be assumed to be correct unless it is

demonstrably proved to be wrong and not by an inferential

process of reasoning or by a process of rationalization. In the

said case, the contention of the University was falsified by a

large number of acknowledged Text Books. The subsequent Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

objections to the Expert Committee recommendations were

negatived and inter alia it was directed that the Rajasthan Public

Service Commission would revise the results of the candidates

including all the appellants, on the basis of the report of the

Expert Committee constituted by the Hon'ble Supreme Court,

without affecting the result of those candidates whose names

were already included in the select-list published. The persons

who come out successful were directed to be appointed in the

1045 vacancies which remained out of the total 13,000.

13. In the present case, we see that there has been, not

one, but re-assessment by three Expert Committees appointed

by the Commission which we shall refer to from the counter

affidavit. We are of the opinion that the principle that applies to

the present case is that unequivocally declared in Ran Vijay

Singh (supra) where emphasis was laid on finality to the result

of public examinations and speedy disposal, in case of judicial

interference, keeping in mind the larger public interest. The

Hon'ble Supreme Court termed the approach of the High Court

in evaluating some answers by itself as erroneous, especially

when the matter stood delayed for eight years. The law laid

down on the subject is available in Paragraphs 30.1 to 30.5,

which are extracted hereunder:-

Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

"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 scrutinise 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."

14. We refuse to look into the specific questions and

answers pointed out by the learned counsel for the appellants,

especially keeping in mind Paragraph 30.3, as available in the

above extract. We also emphasize the further finding of the

Hon'ble Supreme Court in Ran Vijay Singh (supra) that

sympathy or compassion does not play any role in the matter of

directing or not directing re-evaluation of an answer-sheet. The

entire examination process does not deserve to be derailed only Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

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. We

bow to the above propositions declared in Ran Vijay Singh

(supra) and look at the above exercise with the above principles

in the back of our minds.

15. A detailed counter affidavit has been filed by the

respondents which indicates that a total of 3,20,656 candidates

appeared at 1153 examination centers spread over 38 districts of

Bihar on 30.09.2022 for 555 posts. The Preliminary Test had

150 objective type questions of different subjects including

General Knowledge and General Science, captioned as General

Studies Paper. The OMR type answer-sheets had multiple

choice alternative answers for each question and there was no

negative marking. The question paper of General Studies was

set by the experts of different subjects and to avoid copying, the

question papers were printed in four series, where the options

were jumbled up and it differed in each of the different series.

16. The Commission on 01.10.2022 published a

notice in the daily newspapers intimating the publication of the Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

question booklet, with answers in all the series, on the official

website of the Commission. Objections were also called for

which had to be submitted before 5:00 P.M. on 05.10.2022. An

Expert Committee was constituted to evaluate the key-answers

given by the question-setters and objections/suggestions

submitted to the Commission. The Expert Committee was of the

opinion that out of 150 questions of General Studies Paper

options of 08 questions had to be changed. A copy of the report

is produced as Annexure-C. Again, evaluation of the answer-

sheets of the candidates were done and result was published on

17.11.2022 declaring 11607 candidates as successful. The

appellants and their Roll Numbers, category, marks obtained

and cut-off marks for the respective category are detailed in

Paragraph 16. Many of them fall short of 1 to 5 marks.

17. When a request was made by some candidates

including some of the appellants to re-examine the final answer-

key again of 13 questions, the Commission again arranged a

meeting of subject experts on 23.11.2022 and found that out of

the 13 questions answer of 12 questions require no change. One

of the questions on which an objection was raised had two

correct answers at its options. Further result was published

wherein 15 candidates came to be additionally included. On Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

08.12.2022 the Commission constituted a meeting of new

subject experts to re-examine the final answer key with respect

to the 13 questions on which objections were raised, which

committee also reiterated the opinion of the earlier committee.

Obviously, re-evaluations were made at least on three instances

based on the objections raised by the candidates, even beyond

the time stipulated.

18. We would briefly refer to some of the questions;

rather answers which were corrected by the experts, though we

are not to find on their correctness or otherwise. Question

number 1 was with respect to who established trade relations

with the Roman Empire; for which the petitioners claim the

correct answer is 'more than one above'. In Annexure C to the

counter-affidavit it is explained by the Expert Committee that

though individual traders had connections earlier, it was the

Kushanas who established organized trade between the empires.

Question number 6 was on the social reforms of William

Bentick and the petitioners claim abolition of slavery by the Act

of 1843, was after his death in 1839. However, the experts are of

the opinion that The Charter Act of 1833 provided for relief to

slaves and ultimately led to the Act, which abolished slavery

and hence the correction was made. Question number 97 was Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

the resultant weight of iron when it rusts; which the petitioners

claim increases initially and then decreases; but the experts

assert that it goes on increasing due to the formation of rust in

the long run. Question number 147 is about the State/Union

Territory chosen to host G20 Summit in 2023, which the

petitioners say is the Union Territory of National Capital

Territory of Delhi; but the experts say it is Delhi. The question

itself is, which State/Union Territory is chosen, and from the

options given 'Delhi' is the correct answer. The question

numbers referred to hereinabove are those from D series of the

OMR sheets which are respectively question numbers 64, 69, 15

and 36 in A series, as referred to in Annexure-C to the counter

affidavit. Insofar as Question numbers 2, 38, 125 & 143 in D

series, the provisional answer key and the final are the same and

the petitioners did not object to it at the provisional stage. As far

as Question number 20 is concerned; the only one remaining out

of the nine objected to, Pushyabhuti is said to be the founder of

Vardhana dynasty though Prabhakaravardhana is the first

notable king. We find absolutely no reason to interfere with the

evaluation at the preliminary stage.

19. We also keep in mind the larger public interest

involved in so far as the selection being derailed only for reason Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

of the present complaint regarding nine questions out of a total

of 150 questions; which objections we found not to be

sustainable or tenable. We are quite conscious of the fact that

many of these appellants have fallen short by 1 to 5 marks.

Without prejudice to our findings on the objections raised, it is

not clear in which of the nine questions the appellants answered

correctly; individually or collectively, in accordance with their

assertion of the correct answers. Further, as we noticed, none of

the candidates who were selected are impleaded even in the

representative capacity. The Main Examination is also over and

there is prejudice caused in so far as the candidates selected for

the mains being kept waiting indefinitely. The expert committee

report evidences an analysis of the answers, against which

untenable objections are raised.

20. We find absolutely no reason to interfere with the

judgment of the learned Single Judge though on the different

reasoning as stated herein above. We dismiss the Letters Patent

Appeal leaving the parties to suffer their respective costs.

21. We notice that the Letters Patent Appeal arises

from one of the writ petitions which was disposed by a common

judgment in two writ petitions. The consideration was separate

as seen from the impugned common judgment and in such Patna High Court L.P.A No.111 of 2023 dt. 13-09-2023

circumstance, we are of the opinion that the appellants were not

required to file two appeals from the common judgment which

would have been the normal practice though they were not

parties to the other writ petition filed by a similarly placed

candidate.

22. The Letters Patent Appeal stands dismissed

affirming the judgment of the learned Single Judge rejecting the

writ petition.

23. Interlocutory Application(s), if any, shall stand

closed.

(K. Vinod Chandran, CJ)

Partha Sarthy, J: I agree.

(Partha Sarthy, J) P.K.P./-.

AFR/NAFR
CAV DATE                05.09.2023
Uploading Date          13.09.2023
Transmission Date