Uttarakhand High Court
Tarun Sahni vs Uttarakhand Public Service ... on 13 September, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE VIPIN SANGHI, C.J.
AND
SRI JUSTICE RAKESH THAPLIYAL, J.
Judgment reserved on: 25.07.2023
Judgment delivered on: September 13, 2023
WRIT PETITION (S/B) No. 229 OF 2023
Tarun Sahni. .......Petitioner.
Versus
Uttarakhand Public Service Commission,
and another. .......Respondents.
Counsel for the petitioner: Ms. Swati Verma, learned counsel for
the petitioner.
Counsel for the respondents: Mr. Alok Mehra, learned counsel for
the respondent no. 1.
Mr. Pankaj Miglani, learned counsel
for respondent no. 2.
With
WRIT PETITION (S/B) No. 242 OF 2023
Dristi Marhwa and others. .......Petitioners.
Versus
Uttarakhand Public
Service Commission. .......Respondent.
Counsel for the petitioner: Ms. Snigdha Tiwari, learned counsel
for the petitioner.
Counsel for the respondents: Mr. Alok Mehra, learned counsel for
the respondent.
With
WRIT PETITION (S/B) No. 243 OF 2023
Shakshi Garg. .......Petitioner.
Versus
State of Uttarakhand
and another. .......Respondent.
Counsel for the petitioner: Mr. Nagesh Agarwal, learned counsel
for the petitioner.
Counsel for the respondents: Mr. Pradeep Joshi, learned Standing
Counsel for the State/ respondent no.
Mr. Alok Mehra, learned counsel for
the respondent no. 2.
Mr. Pankaj Miglani, learned counsel
for respondent no. 3.
With
WRIT PETITION (S/B) No. 265 OF 2023
Adeed Nawaz. .......Petitioner.
Versus
Uttarakhand Public
Service Commission. .......Respondent.
Counsel for the petitioner: Mr. T.A. Khan, Sr. Advocate, assisted
by Mr. Mohd. Saify, learned counsel
for the petitioner.
Counsel for the respondents: Mr. Alok Mehra, learned counsel for
the respondent.
Upon hearing the learned Counsel for the parties, the Court made the
following JUDGMENT:
1. This bunch of four writ petitions pertains to the
Uttarakhand Judicial Service Civil Judge Preliminary
Examination 2023. The said preliminary examination was
conducted by the Uttarakhand Public Service Examination, which
is a body constituted under Article 315 of the Constitution of
India and as such, is a constitutional body. Since almost identical
issues have been raised in all these petitions in relation to
questions formulated by the Commission with the aid of their
subject experts, all the writ petition were heard together, and
disposed of by this common judgment.
2. For the purpose of recruitment to the post of Civil Judge, an
Advertisement bearing no. 10 / DR/E-2/ Civil Judge/2022 - 23
was published by the Commission called as Uttarakhand Judicial
Service Civil Judge Examination 2023. The examination is
designed to be conducted in two steps. First step is a preliminary
examination, which is based upon objective type of questions and
the second step comprises of a main examination. Those, who
qualify in the preliminary examination, are permitted to appear
in the main examination. The purpose of holding preliminary
examination is to shortlist the candidates for appearing in the
main examination.
3. The petitioners applied for the post of Civil Judge in
response to the advertisement aforesaid. Since all of them were
eligible, they are permitted to appear in the preliminary
examination and they have participated in it. The answer keys
were published and objections were invited. Various objections
were furnished and thereafter, final answer keys were published
on 29.05.2023. The date for conducting the main examination was
also declared and was scheduled from 23.08.2023 to 26.08.2023.
The Commission also published the provisional answer key on
their website i.e. https://psc.uk.gov.in and invited objections
from the candidates and after receiving objections, and disposal
of the objections, the result of the preliminary examination was
published on 29.05.2023 with cut off marks for all eligible
candidates.
4. Since none of the petitioners in these writ petitions were
declared to be qualified in the preliminary examination, they
have filed these writ petitions raising identical issues in respect of
certain questions asked for in the preliminary examination. In all
these writ petitions, petitioners are questioning the answer key in
respect of same set of questions.
5. The Uttarakhand Public Service Commission has filed its
counter affidavit. The Commission in the counter affidavit
submits that as per the aforesaid regulations, the provisional
answer key of all the questions were uploaded on the official
website of the Commission on 04.05.2023 inviting objections from
the candidates. The objections were to be filed online between
05.05.2023 and 11.05.2023 on the official website and it was clearly
mentioned in the notification that the objections received, after
the last date, would not be considered. A total of 223 objections
were received in respect of the provisional answer key, and on
the basis of these objections, the number of unique question -
answer keys whereof were challenged were 26, which were
placed before the subject experts. The subject experts, thereafter,
deliberated on these unique questions and found that the
questions and answers keys of 25 unique questions were correct
and recommended that there is no need to change the answer
keys of these 25 unique questions. It is further contended by the
Commission that these 25 unique questions also consisted the
questions, disputed in present writ petition, which according to
the petitioners, do not have correct answer keys. It is further
contended by the Commission that on the basis of
recommendation made by the subject experts, the Commission
did not make any change in the answer options of objectionable
questions. The Commission also placed on record the report of
subject experts with the counter affidavit. It is further stated by
the Commission that the instructions issued by the Public Service
Commission are mandatory, having force of law and need to be
strictly complied with. The Commission states that there is no
provision for re-evaluation of answer sheets, and it is a settled
proposition of law that the Court cannot do re-evaluation and
scrutiny of the answers of the candidates, since the Court has no
expertise in the matter. It is further contended by the
Commission that some of the petitioners have not filed their
objections within the stipulated time against the provisional
answer key. The subject experts after due deliberations, have
opined that the answer given in the provisional answer key is
correct and need not to be changed. The final answer key issued
by the Commission is based on facts, reasoning and rules and, as
such, the Writ Petitions lack merit and deserve to be dismissed. In
Writ Petition (SB) No. 229 of 2023 and Writ Petition (SB) No. 243
of 2023, almost with the same averments, the counter affidavits
have been filed by the Commission. So far as the Writ Petition
(SB) No. 242 of 2023 is concerned, in the counter affidavit, the
Commission has submitted its response in a tabulated form by
giving reference of answers as per provisional answer key and
the answers, as given by the petitioners, and the opinion of
subject experts. In addition to the tabulation charts, the
Commission in this petition also placed on record the report of
the subject experts. In all these petitions, petitioners are raising
objections in respect of four questions.
6. In Writ Petition (SB) no. 265 of 2023, during the course of
arguments, learned Sr. Advocate for the petitioners submits that
he is not questioning the answer key in respect of question no.
120. Therefore, there is no need to deal with this question.
7. In all these writ petitions, the petitioners are raising
objections to the answer key of the four questions. Before
proceeding further, we may notice the judgments relied upon by
Mr. Alok Mehra on the scope of our jurisdiction to examine, on
merits, the correctness of the answer key finalized by the
respondent Commission. Mr. Mehra has placed reliance on Ran
Vijay Singh Vs. State of U.P. (2018) 2 SCC 357, which was
further followed in the case of Vikesh Kumar Gupta & another
Vs. State of Rajasthan (2021) 2 SCC 309.
8. At this juncture, we reproduce paragraph 15 of the said
judgment in Vikesh Kumar Gupta (supra) below, wherein extract
of the judgment of the Supreme Court in the case of Ran Vijay
(supra) has been incorporated:
"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. [Ran Vijay Singh v. State of U.P.,
(2018) 2 SCC 357 : (2018) 1 SCC (L&S) 297] held that the
court should not re-evaluate or scrutinise 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 case [Ran Vijay Singh v. State of U.P., (2018) 2
SCC 357 : (2018) 1 SCC (L&S) 297] , 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."
9. In Amit Dutt Joshi and others Vs. State of Uttarakhand and
others Special Appeal No. 100 of 2023 decided by this Court on
13.06.2023 along with several other Special Appeals, while
deciding with a challenge to the answer keys in respect of another
public examination. We observed as follows:
"07. There can be no quarrel with the preposition noticed
by the learned Single Judge in the impugned judgment. We
cannot go into the correctness of the answers finalized by
the Expert Body. However, the process of decision making
by the Expert Body, and the material which have been
considered or left out of consideration, would fall for
scrutiny by the Court, as this Court is concerned primarily
with the issue: whether the Body- even if it is composed of
Subject Experts, has given due application of mind to the
issue, on which its decision/ opinion was called for; whether
the Expert Body has considered the relevant and germane
aspects, and not taken into consideration irrelevant or
extraneous aspects, and; whether the decision appears to be
well reasoned. In that light, we have proceeded to take
notice of the three questions, in respect whereof, the
appellants are pressing the present special appeals; the texts
and material relied upon by the appellants; the reasoning
adopted by the Experts, and; the texts and other literature
relied upon by the Expert Body."
10. With the same objective, we may set out the questions - the
answer keys whereof are under challenge, and examine whether
the subject experts have given due application of mind to the
materials produced by the petitioners to challenge the answer
keys - to those questions.
11. The first question, answer key whereof is challenged reads
as follows:
"Under Muslim Law, Tuhr means:
a. Period of menstruation b. Period of iddat.
c. Period between menstruation d. None of the above.
66- eqfLye fof/k ds vUrxZr rqgj dk rkRi;Z gS %
¼a½ ekfld /keZ dh vof/k ¼b½ bn~nr dh vof/k
¼c½ ekfld /keZ ds chp dh vof/k ¼d½ mijksDr esa ls dksbZ ugha
12. According to the petitioners, correct answer to this question
is option "C" i.e. "period between menstruation" but as per the
answer key uploaded on the website by the Commission, the
answer to this question is option "D" i.e., "None of the above".
13. In respect of this question, the petitioners place reliance on
21st edition of book on the Principle of Mohamedans Law by
Mulla. A reference of which has also been given by the Supreme
Court in several cases. While giving reference of the said Book,
the counsel for the petitioners submits that the correct answer of
"Thur" is the "period between menstruation" and, therefore, the
option "C" is the correct answer.
14. Petitioners in reference to the aforesaid question make
reliance on the judgment rendered by the Supreme Court in the
case of Shayara Bano Vs Union of India (2017) 9 SCC 1 wherein
the issue of Triple Talak was involved. Paragraph 38 of the said
judgment is being reproduced as under:
"38. This then leads us to the forms of divorce recognised in
Islamic Law Mulla, at pp. 393-95, puts it thus:
"311. Different modes of talak.--A talak may be effected
in any of the following ways:
(1) Talak ahsan.--This consists of a single pronouncement
of divorce made during a tuhr (period between
menstruations) followed by abstinence from sexual
intercourse for the period of iddat.
When the marriage has not been consummated, a
talak in the ahsan form may be pronounced even if the wife
is in her menstruation.
Where the wife has passed the age of periods of
menstruation the requirement of a declaration during a
tuhr is inapplicable; furthermore, this requirement only
applies to an oral divorce and not a divorce in writing.
Talak ahsan is based on the following verses of Holy
Quran: "and the divorced woman should keep themselves
in waiting for three courses." (II: 228).
"And those of your women who despair of
menstruation, if you have a doubt, their prescribed time is
three months, and of those too, who have not had their
courses." (LXV: 4).
(2) Talak hasan.--This consists of three pronouncements
made during successive tuhrs, no intercourse taking place
during any of the three tuhrs.
The first pronouncement should be made during
a tuhr, the second during the next tuhr, and the third
during the succeeding tuhr.
Talak hasan is based on the following Quranic
injunctions:
"Divorce may be pronounced twice, then keep them
in good fellowship or let (them) go kindness." (II: 229).
"So if he (the husband) divorces her (third time) she
shall not be lawful to him afterward until she marries
another person." (II: 230).
(3) Talak-ul-bidaat or talak-i-badai.--This consists of--
(i) Three pronouncements made during a single tuhr either
in one sentence e.g. "I divorce thee thrice," -- or in
separate sentences e.g. "I divorce thee, I divorce thee, I
divorce thee", or
(ii) a single pronouncement made during a tuhr clearly
indicating an intention irrevocably to dissolve the marriage
e.g. "I divorce thee irrevocably."
Talak-us-sunnat and talak-ul-biddat.--The Hanafis
recognised two kinds of talak, namely, (1) talak-us-sunnat,
that is, talak according to the rules laid down in
the sunnat (traditions) of the Prophet; and (2) talak-ul-
biddat, that is, new or irregular talak. Talak-ul-biddat was
introduced by the Omayyad monarchs in the second
century of the Mahomedan era. Talak-ul-sunnat is of two
kinds, namely, (1) ahsan, that is, most proper, and
(2) hasan, that is, proper. The talak-ul-biddat or heretical
divorce is good in law, though bad in theology and it is the
most common and prevalent mode of divorce in this
country, including Oudh. In the case of talak
ahsan and talak hasan, the husband has an opportunity of
reconsidering his decision, for the talak in both these cases
does not become absolute until a certain period has elapsed
(Section 312), and the husband has the option to revoke it
before then. But the talak-ul-biddat becomes irrevocable
immediately it is pronounced (Section 312). The essential
feature of a talak-ul-biddat is its irrevocability. One of tests
of irrevocability is the repetition three times of the formula
of divorce within one tuhr. But the triple repetition is not a
necessary condition of talak-ul-biddat, and the intention to
render a talak irrevocable may be expressed even by
a single declaration. Thus, if a man says "I have divorced
you by a talak-ul-bain (irrevocable divorce)",
the talak is talak-ul-biddat or talak-i-badai and it will take
effect immediately it is pronounced, though it may be
pronounced but once. Here the use of the expression "bain"
(irrevocable) manifests of itself the intention to effect an
irrevocable divorce."
(emphasis supplied)
15. A further reference has also been made of B.R. Verma's
commentary, 8th Edition 2002 wherein at page 238, there is a
reference of explanation, which reads as under:
"Explanation - Tuhr is the period of purity between
menstruation"
The extract of the aforesaid text book is also enclosed
as Annexure No. 7 to the Writ Petition (SB) No. 227 of 2023.
16. In respect to this question, a further reliance has been made
in the case of Zohara Khatoon Vs. Mohd. Ibrahim (1981) 2 SCC
509 wherein the Supreme Court in paragraph 22 has observed as
under:
"22. ............It would appear that under the
Mahomedan law there are three distinct modes in which
a Muslim marriage can be dissolved and the relationship
of the husband and the wife terminated so as to result in
an irrevocable divorce:
(1) Where the husband unilaterally gives a divorce
according to any of the forms approved by the
Mahomedan law viz. talak ahsan, which consists of a
single pronouncement of divorce during tuhr (period
between menstruations) followed by abstinence from
sexual intercourse for the period of iddat; or talak
ahsan which consists of three pronouncements made
during the successive tuhrs, no intercourse taking place
between three tuhrs; and lastly talak-ul-bidaat or talak-
i-badai which consists of three pronouncements made
during a single tuhr either in one sentence or in three
sentences signifying a clear intention to divorce the
wife, for instance, the husband saying "I divorce thee
irrevocably" or "I divorce thee, I divorce thee, I divorce
thee". The third form referred to above is however not
recognised by the Shiah law. In the instant case, we are
concerned with the appellant who appears to be a Sunni
and governed by the Hanafi law (vide:
Mulla's PRINCIPLES OF MAHOMEDAN LAW, § 311, p.
297)......."
17. Ms. Snigdha Tiwari, counsel for the petitioners, has made a
reference of a question asked by the Public Service Commission
in Uttarakhand Civil Judge Preliminary Examination 2018 as
question no. 142 which has been mentioned in para 14 of the writ
petition. The said question is being reproduced as under:
"Q. 142 "Tuhr" means
a. Period of Iddat
b. Period of menstruation.
c. Date of marriage.
d. The period between two menstrual cycles."
According to the petitioner, the Uttarakhand Public Service
Commission accepted the answer "d" i.e., "The period between
two menstrual cycles."
18. In respect to the said averment as mentioned in paragraph
14 of the Writ Petition (SB) No. 242 of 2023, there is no denial by
the Commission in its counter affidavit to this similar question,
which was asked in Uttarakhand Civil Judge Preliminary
Examination, 2018.
19. The Uttarakhand Public Service Commission, in its counter
affidavit, has placed on record the recommendation of the Subject
Expert and said recommendation is made, after receiving the
objections to the said question. The Subject Expert found that the
answer of the Commission is correct. At this juncture, the extract
of the report of the Subject Expert, which is placed on record by
the Commission in its counter affidavit is being produced as
under:
"iz'uksa ,oa mRrj fodYiksa ds lanHkZ esa mijksDr vkifRr;ksa ij
स�ूण� िवचार िकया गया। fopkjksijkUr हमारी सं�ुित िन�वत् प्र�ािवत है
:- आयोग की उ�र कुंजी के अनुसार िवक� D सही है।
��ीकरण : उ�ीदवार के अनुसार कोई भी उ�र सही नहीं है, उ�ीदवार C
िवक�
को सही मान रहा है , लेिकन उसम� दो (TWO) श� नहीं है , अथा�त
यिद दो मािसक धम� के बीच की अविध िलखी होती तो उ�ीदवार सही होता।
िन�ष� आयोग की उ�र कुंजी D सही है । समथ�न का द�ावेज -तुहर श�
का अथ� की िवषय-व�ु।"
20. The translation of the aforesaid report of the expert is as
follows:
"The above objections were fully considered in the context
of questions and answer options. After consideration, our
recommendation is proposed as follows:-
According to the answer key of the Commission,
option D is correct.
Explanation: According to the candidate, none of the
answers is correct, the candidate is considering the option
C as correct, but it does not contain the word TWO, i.e. if
the period between two menstrual periods had been written
then the candidate would have been correct.
Conclusion Commission's answer key D is correct.
Supporting Document- Contents of the meaning of the
word Tuhr."
21. The explanation, as given by the Subject Experts is that if
the word "two" were mentioned in between period of
menstruation, then the answer "C" would be the correct answer.
Since the question does not qualify "period between
menstruation" it cannot be read as "period between two
menstruation". The purpose of subjecting the candidates to the
test in question was to test their knowledge in the subject of law.
The test was not to assess either the knowledge of the candidates
in the English language, or catch the suspicious detective in him,
who would catch the "trick" in the question, as imagined by the
examiner. The purpose was not to test whether the candidates
could catch the "trick" in question. Whenever one talks of a
period between incidents (in this case menstruations), one looks
at two such incidents. The reasoning given by the Expert does not
take into consideration the host of materials relied upon by the
petitioners. We, therefore, are of the view that the exercise
undertaken by the expert suffers from non application of mind to
relevant considerations, and from the vice of taking into
consideration, wholly irrelevant aspects.
22. The second the question against which petitioners have
raised objections, which reads as under:
"An illiterate labourer makes a mark daily on the wall of
his house to count his daily wages. These marks may be
proved as:
a. documentary b. Hearsay Evidence
c. Oral Evidence d. Circumstantial Evidence.
,d vui<+ fngkM+h etnwj izR;sd fnu vius ?kj dh nhokj ij ,d
fu'kku cukrk gS ftlls og viuh izfrfnu dh fngkM+h dk fglkc j[k
ldsA ;s fu"kku lk{; gS %
¼a½ nLrkosth lk{; ¼b½ vuqJqr lk{;
¼c½ ekSf[kd lk{; ¼d½ ifjfLFkfrtU; lk{;"
23. According to the petitioners, the answer to this question is
option (a) i.e. documentary. However, as per answer key of the
Commission, the answer is option (d) i.e. circumstantial evidence.
In reference to this question, counsel for the petitioners give
reference of certain provisions of the Indian Evidence Act, 1872
the Indian Penal Code, 1860 and the General Clauses Act, 1897.
The definition of the word "document" as defined in various
Acts, is extracted below:
"The Indian Evidence Act, 1872
Section 3 "Document" means any matter expressed or described
upon any substance by means of letters, figures or marks, or by
more by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.
Illustrations - A writing is a document;
Words printed lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
The General Clauses Act, 1897
Section 3 Sub clause (18) "document" shall include any matter
written, expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means
which is intended to be used, or which may be used, for the
purpose of recording that matter.
The Indian Penal Code, 1860
Section 29 "Document" - The word "document" denotes any
matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, as evidence of that
matter. Explanation 1- It is immaterial by what means or upon
what substance the letters, figures or marks are formed, or
whether the evidence is intended for, or may be used in, a Court of
Justice, or not.
Illustrations - A writing expressing the terms of a contract,
which may be used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A power-of-attorney is a document.
A map or plan which is intended to be used or which may be used
as evidence, is a document.
A writing containing directions or instructions is a document.
Explanation 2.-Whatever is expressed by means of letters, figures
or marks as explained by mercantile or other usage, shall be
deemed to be expressed by such letters, figures or marks within
the meaning of this section, although the same may not be
actually expressed.
C. D. Field Commentary on Law of Evidence Act, 1872 13th
Edition page 3505 Document. - As to what is a document,
reference should be made to Sec. 3, ante. For purposes of evidence,
the following have been held to be included under the term
"document": (a) Exchequer rallies wooden scores used by
milkmen and (b) Inscriptions upon walls, (c) Coffin plates. (d)
Rings (e) Labels and parcels.
Principles of The Law of Evidence by Dr. Avtar Singh page
299. The expression "document" is defined in section 3 as
follows: "Document" means any matter expressed or described
upon any substance by means of letters, figures or marks, or by
more than one of those means, intended to be used, or which may
be used, for the purpose of recording that matter. A writing is a
document.
Illustrations -
Words printed lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
Speaking generally, it means anything or matter which contains a
permanent record of a relevant fact or a fact in issue. Thus, a
paper on which a contract is written is a document; so is a wall or
chattel or stone on which something is inscribed. Photograph is a
document. It has been said that the word "document" as used in
the law of Evidence "should not be construed restrictively.
Etymologically the word means something which shows or
teaches and is evidential or informative in its character. Of course
much depends upon the context in which the word "document" is
used. About these things there is no doubt, for they contain a
writing which the court can read for itself or something which the
court can see.
Similarly, as per the book of the Indian Evidence Act 1872
writing by Sir Henry Raymond Fink page 48-
(d). When the original is of such a nature as not to be easily
moveable. "Thus, it may be an inscription on a rock, or on a wall,
monument, or grave stone,-marks on a tree or a proclamation in a
foreign country, or the like. To require the production of the
original would, in such cases, be a negation of the proof
altogether. In the case of a document, it must however be shown
that it is not, in fact, removable; or practically so. Thus, where a
notice was merely suspended to the wall of an office by a nail, it
was considered necessary to produce the original itself, and
secondary evidence was not allowed."-Goodeve on Evidence, p.
349, citing Jones vs. Tarleton, 9 M., and W. 675.
A Treatise on the principles of the law of evidence by W.M.
Best, 4th Edition, 1866, London, page 297 & page 298
215. The remaining instruments of evidence are Documents.
Documents, under which term are properly included all material
substances on which the thoughts of men are represented by
writing or any other species of conventional mark or symbol.
Thus the wooden scores on which bakers, milkmen, &c., indicate
by notches the number of loaves of bread or quarts of milk
supplied to their customers; the old exchequer tallies (a), and such
like, are documents as much as the most elaborate deeds."
24. Learned counsel for petitioners have placed reliance on the
judgment of Bombay High Court in the case of Emperor Vs.
Krishtapp Khandappa 1925 SCC online Bom 173 wherein the
Bombay High Court has held that the letters imprinted by
rangers on the trees in the forest have also been categorised as
documents. A further reliance has been made on the judgment of
Hon'ble Supreme Court in the case of Mohd. Siddiq (D) through
LRs Vs. Mahant Suresh Das and others (2019) 7 SCC 633 (Ram
Janambhoomi case) and judgment of Allahabad High Court in
the case of Gopal Singh Visharad Vs. Zahoor Ahmad (2010)
SCC online All 1992 wherein the Courts considered inscriptions
on stones / walls as documents.
25. The Uttarakhand Public Service Commission in its counter
affidavit gave a reference to the recommendation of the Subject
Expert in respect of this question, who after dealing with the
objections gave his recommendation. The extract of such
recommendation has been enclosed in the counter affidavit. The
recommendation of the Subject Expert in respect of this question
reads as under:
"iz'uksa ,oa mRrj fodYiksa ds lanHkZ esa mijksDr vkifRr;ksa ij lEiw.kZ
fopkj fd;k x;kA fopkjksijkUr gekjh laLrqfr fuEuor~ izLrkfor gS %&
vk;ksx dh mRrj dqath ds vuqlkj fodYi D lgh gSA
Li"Vhdj.k % lEcfU/kr iz'u esa vui<+ fngkM+h etnwj nhokj ij viuh
etnwjh ds fu'kku cukrk gSA ;g fu'kku ifjfLFkfrtU; lk{; gS D;ksafd
etnwjh esa fu'kku Lo;a cuk;s gSa vkSj vius fgr esa cuk;s] blfy,
ifjfLFkfrtU; lk{; ds dkj.k lEiqf"V (coroborative) lk{; ;|fi
lk{; vf/kfu;e dh /kkjk 3 esa mnkgj.k gSa] mudk lEcU/k f'kykys[k ;k
fu'kku ls lEcfU/kr gSa] og Lo;a }kjk vius iz;ksx ds fy, ugha gSaA
fu'd'kZ% vk;ksx dk mRrj D lgh gSA
leFkZu esa nLrkost % ifjfLFkfrtU; lk{; dk fooj.k"
26. The English translation of the above reasoning reads as
follows:
"The above objections were fully considered in the
context of questions and answer options. After
consideration, our recommendation is proposed as follows:-
According to the answer key of the Commission,
option D is correct.
Explanation: In the concerned question, the illiterate
daily wage laborer marks his wages on the wall. This mark
is circumstantial evidence because the marks have been
made by the laborer himself and in his own interest, hence,
corroborative evidence due to circumstantial evidence,
although there are examples in section 3 of the Evidence
Act, they are related to inscriptions or marks, that, by itself,
is not for own use
Conclusion: Commission's answer D is correct.
Documents in Support: Description of
Circumstantial Evidence."
27. So far as this question is concerned, petitioners have relied
upon certain provisions of the Indian Evidence Act, 1872, the
General Clauses Act, 1897, the Indian Penal Code, 1860,
commentary of C.D. Field on Evidence Act, 1872, the principles of
the law of evidence by Dr. Avatar Singh, book of Sir Henry
Raymond Fink on the Indian Evidence Act, 1872 and book of
W.M. Best on law of Evidence Act.
28. The opinion of the Subject Expert's does not appear to be
founded upon any literary material, or any new text book, or law
on the subject. The Subject Expert's opinion is without any
disclosed basis and substances, and further it does disclose
application of mind to the host of materials relied upon by the
petitioners. The view of the subject expert, therefore, needs
reconsideration in the light of the material produced by the
petitioners.
29. The third question, against which the petitioners have
raised objection, reads as under:
"Which is period of effect of holding over in the absence of
agreement under the Transfer of Property Act, 1882?
a. Two years b. One year
c. Depend on the parties d. Three years.
djkj ds vHkko esa lEifÙk vUrj.k vf/kfu;e] 1882 ds vUrxZr
vfr/kkj.k ds izHkko dh vof/k D;k gS \
¼a½ nks o"kZ ¼b½ ,d o"kZ
¼c½ i{kdkjksa ij fuHkZj djrk gS ¼d½ rhu o"kZ"
30. Learned counsel for the petitioners submit that the correct
answer is option (C) i.e. "depend on the parties" whereas the
answer of the Commission is (B) i.e. "one year".
31. The Commission in its counter affidavit placed on record
the recommendation of the Subject Expert in reference to this
question. For ready reference the extract of the recommendation
of the subject Expert reads as under:
"प्र�ों एवं उ�र िवक�
ों के संदभ� म� उपरो� आपि�यों पर स�ूण�
िवचार िकया गया। िवचारोपरा� हमारी सं�ुित िन�वत् प्र�ािवत है -
आयोग की उ�र कुंजी के अनुसार िवक� B सही उ�र है।
समथ�न म� द�ावेज : स�ि� अ�रण अिधिनयम 1882 की धारा 116
की प्रथम प्र�र के चौथी लाइ u की भाषा प्र� से स���त है। इसम�
िलखा है in the absence of agreement ...... इसिलए एक वष�
(One year) इस चौथी लाइन म� है। यही सही उ�र है। "
32. The English translation of the same reads as follows:
"The above objections were fully considered in the
context of questions and answer options. After
consideration, our recommendation is proposed as
follows:
According to the answer key of Commission,
correct option is B.
Document in support - Fourth line of first
paragraph of Section 116 of the Transfer of Property
Act, 1882 is related to the present question. It is
written in that ..... in the absence of agreement....
that is why one year is in fourth line. This is right
answer."
33. Though learned counsel for the petitioners have advanced
detailed submission in support of their contention, we are not
even recording the same, for the reason, that the question, as
framed in the English language, in completely senseless. It is not
correctly grammatically framed and it is not clear what the
examiner is seeking to ask the examinees. It pains us to see, that
the question has been framed with an utterly casual approach. No
one seems to have bothered to vet the question, and to ensure
that it makes sense to anyone, who may wish to attempt the
question in English language. For the aforesaid reason, we are of
the view that the said question deserves to be deleted altogether
from consideration by the respondents. We order accordingly.
34. The fourth question against which the petitioners have
raised objection to the answer key, is reproduced as under:
"A placed a bomb in the medical store and gave the people
inside three minutes to get out before the bomb exploded. B
an arthritic patient failed to escape and was killed. A would
be liable:
a. Under Section 302 of IPC.
b. Under Section 306 of IPC.
c. A had no intention to kill B, so no offence.
d. Section 304-A of IPC.
A esfMdy LVksj esa ce j[kk vkSj ce foLQksV gksus ls igys yksxksa dks
ckgj fudyus ds fy;s rhu feuV fn;sA B ,d xfB;k jksxh Hkkxus esa
foQy jgk vkSj ekjk x;kA A fdls fy;s mÙkjnk;h gksxk \
¼a½ /kkjk 302 Hkkjrh; n.M lafgrk
¼b½ /kkjk 306 Hkkjrh; n.M lafgrk
¼c½ A dk B dks ekjus dk bjknk ugha Fkk blfy;s dksbZ vijk/k ugha
¼d½ /kkjk 304&A Hkkjrh; n.M lafgrkÞ
35. Learned counsel for the petitioners have made several
references in this regard and according to the petitioners, answer
to this question is option (a) i.e. "under Section 302 of the IPC"
and as per Commission, answer to this question is option (d) i.e.
"under Section 304-A of the IPC".
36. The Commission in its counter affidavit placed on record
the recommendation of the Subject Expert, which is being
reproduced as under:
"iz'uksa ,oa mRrj fodYiksa ds lanHkZ esa mijksDr vkifRr;ksa ij lEiw.kZ
fopkj fd;k x;kA fopkjksijkUr gekjh laLrqfr fuEuor~ izLrkfor gS %&
vk;ksx dh mRrj dqath ds vuqlkj fodYi D lgh gSA
Li'Vhdj.k % lEcfU/kr leL;k esa vk'k; (Intention) vFkok lekUrj
"kCn tkudkjh (Known) ugha fy[kk gSA vFkkZr~ vk"k; vFkok
lekUrj "kCnksa dh vuqifLFkfr esa ;g leL;k /kkjk 302 (IPC) ls
lEcfU/kr ugha gS] blfy, ;g mis{kk ds dkj.k e`R;q ls lEcfU/kr
leL;k gS] ftlesa vk"k; vFkok lekUrj vkijkf/kd eu% fLFkfr ds "kCn
ugha gksrs gSa] ysfdu O;fDr dh e`R;q gks tkrh gSA
leFkZu esa nLrkost&gR;k rFkk ek0n0la0 304 A lEcU/kh nLrkost]
eksgEen jQhd dky cuke e/;izn's k jkT;"
37. When translated, the same reads as follows:
"The above objections were fully considered in the context
of questions and answer options. After consideration, our
recommendation is proposed as follows:- According to the
answer key of the Commission, option D is correct.
Explanation: In the related problem, intention or parallel
word known has not been written. That is, in the absence of
intent or parallel words, this problem is not related to
Section 302 (IPC), hence it is a problem related to death
due to negligence, without words of intent or parallel
criminal state of mind, but the person dies.
Documents in support - Documents related to murder and
IPC 304 A, Mohammad Rafiq Kal vs State of Madhya
Pradesh."
38. The Subject Expert of the Commission in support of his
recommendation had placed reliance on the judgment of Hon'ble
Supreme Court in the case of Mohd. Rafiq Vs. State of Madhya
Pradesh (2021) 10 SCC 706.
39. We have examined the recommendation of the Subject
Expert and we are of the view that the finalization of the answer
key displays due application of mind. The recommendation given
by the Subject Expert, as mentioned in the counter affidavit, is
based on the judgment rendered by the Supreme Court in the
case of Mohd. Rafiq (supra).
40. The Supreme Court in the case of Mohd. Rafiq (supra) has
considered the question - what constitutes an offence punishable
under Section 302 IPC or culpable homicide not amounting to
murder under Section 304A IPC. While dealing with this aspect,
the Supreme Court has considered that the use of term "likely" in
several places in respect of culpable homicide, highlights the
element of uncertainty that the act of accused may or may not
have killed the person. Section 300 IPC which defines "murder"
however, refrains from the use of term "likely" which reveals
absence of ambiguity left on behalf of the accused. The accused is
for sure that his act will definitely cause death. It is often difficult
to distinguish between culpable homicide and murder as both
involve death. Yet, there is subtle distinction of intention and
knowledge involved in both the crimes. This difference lies in the
degree of act. There is a very wide variance of degree of intention
and knowledge among both the crimes.
41. Counsel for the petitioners place reliance on the judgment
of the Supreme Court in the case of Brij Lal Vs. State of
Rajasthan (2016) 13 SCC 347. It is not for us in these proceedings
to return a judicial finding on the issue raised. It is enough for us
to say that the Subject Expert has relied upon the latest judgment
of the Supreme Court in the case of Mohd. Rafiq (supra).
Therefore, this Court refrains itself from giving any opinion in
respect of opinion as given by the Subject Expert.
42. In respect of other questions, objections were raised. We
have also gone through the opinion of the Subject Expert but this
Court refrains itself from giving any opinion over the opinion
given by the Subject Expert looking into the facts and
circumstances of the case.
43. This Court is of the view that only in respect of two
questions viz. question no. 66 of Series C the opinion of the
Subject Experts of the Commission requires reconsideration for
the reasons aforesaid.
44. So far as question no. 73 of Series C is concerned, we are of
the view that the same has not been clearly framed in the English
language, and therefore, the same cannot be retained. The said
question should be completely excluded from consideration by
the respondents.
45. So far as present petitions are concerned, only in respect of
two questions i.e. question no. 66 and 73, as mentioned in Writ
Petition (SB) No. 265 of 2023 (number may be different in other
connected writ petitions), this Court has examined material
provided by the petitioners in support of their answers and also
the opinion given by subject Experts and we find that these
questions require reconsideration.
46. Following our earlier judgment in Anil Dutt Joshi (supra),
we direct the Commission to constitute an Expert Committee to
examine above noted two questions afresh, which shall record
their reasons and justification for coming to their conclusion. The
Expert shall also deal with the justification given by the
petitioners. The Expert Committee shall not comprise of those
subject Experts, who had earlier participated in this process of
checking the answer keys. This whole exercise shall be completed
by the Commission within next four weeks, and the decision shall
be published by the Commission on the website. Depending on
the answers determined by the Experts, as the correct answers,
the marks awarded to the candidates shall be re-calculated, and a
fresh merit list be prepared on the basis of which the selection
process shall continue. We remind the respondent Commission of
the hope we expressed and the expectation we have of the said
Commission, as observed in Anil Dutt Joshi (supra) as follows:
"46. We hope that on this occasion, the Commission will
not let the candidates down by undertaking a mindless and
casual exercise, and that the Experts would take a
considered and reasoned decision to support their final
decision in the matter. The Commission shall, therefore,
constitute Expert Committees to examine the three
questions, aforesaid, afresh, in the light of the model answer
key, with justification, framed by the Commission; the
objections raised by the candidates with supporting
evidence, and; in the light of the texts relied upon by the
Experts themselves. The Commission shall constitute
Expert Committees of Experts other than those who have
already participated in the earlier process. The exercise be
completed by the Commission within the next four weeks,
and the decision shall be published by the Commission on
its website, and also be communicated to 2023:UHC:5981-
DB 17 the appellants. Depending on the answers
determined by the Experts, as the correct answers, the
marks awarded to the candidates shall be re-calculated, and
a fresh merit list be prepared on the basis of which the
selection process shall continue. The aforesaid exercise is
limited in respect of candidates who are on the waiting list,
and shall not affect those who have already been
appointed."
47. Accordingly, all the writ petitions are allowed with costs
quantified at Rs. 10,000/- in each case.
48. All the pending applications stand disposed.
49. Let copy of this judgment be placed in all the connected
writ petitions.
________________
VIPIN SANGHI, C.J.
__________________
RAKESH THAPLIYAL, J.
SKS
