Dismissed

Anil Kumar Ch., v. K. Prashanth

Telangana HC11 Sept 2014WP/1152/2014

Case brief

AI extract

What is this about?

Drug Inspector recruitment involved printing errors and disputed answer keys. The court upheld deletion of Questions 32 and 68 and retention of Question 114, but set aside the finding accepting two answers to Question 112. It formally dismissed the writ petitions and directed completion of revaluation within eight weeks.

What did the court decide?

Finding accepting two answers to Question 112 set aside; respondents directed to complete the Tribunal-directed exercise within eight weeks of receipt of the order.

Anil Kumar Ch., Vs K. Prashanth — Service and Employment | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SMT JUSTICE ANIS

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WRIT PETITION NOS.1151,1152 AND 3891 OF 2014

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COMMON ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU)

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Since these writ petitions arise out of same order, they are being taken up together and disposed of by way of this common order.

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2. Writ Petition No.1152 of 2014 is filed under Article 226 of the Constitution of India by 22 petitioners, against the order, dated 09-12-2013 in O.A.No.10171 of 2012 and the same petitioners also filed Writ Petition No.1151 of 2014 against the order, dated 09-12-2013 in O.A.No.9780 of 2012 and Writ Petition No.3891 of 2014 is filed by 4 petitioners against the common order, dated 09-12-2013 in O.A.Nos.10171 and 9780 of 2012 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short ‘the Tribunal’).

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3. All the writ petitioners are third parties to O.As. They sought leave to file the writ petitions as they are aggrieved by the impugned order passed by the Tribunal.

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4. O.A.No.10171 of 2012 was filed by K.Prashanth K.Kalpana and Upender Vurugonda to direct the 1^st respondent not to conduct any further selection process and not to finalize the selection list and at any rate, direct the Government not to make appointments to the said post and consequently direct the 1^st respondent to conduct the selection in accordance with law by rectifying the mistake with regard to series ‘A’ of subject paper, Q.Nos.32,50,68,112 and 123 and series ‘B’ of General Studies and Mental Ability Q.Nos.29,39,63,88,96 and 107 and to recast the whole selection list and also direct the Public Service Commission to release the marks of the selected and unselected candidates and then only to finalize the selection process and select the list, by holding the action of the Public Service Commission in not deleting several questions and deleting good question and giving two options when there is only one option and giving one option

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when there are correct two options and giving wrong key which led to the undeserving candidates getting into employment during selection process and deserving candidates are sent out, as bad, illegal, arbitrary and unconstitutional.

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5. O.A.No.9780 of 2012 was filed by V.Raja Ravi Kiran and P.Karthik Bharadwaj (i) to call for the records relating to and connected with Notification No.28/2011 dated 27-12-2011 for recruitment to the post of Drug Inspector,

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(ii) to declare the action of the 1^st respondent in not considering the objections raised by the applicants on 07-12-2012 for the final key released on 01-12-2012 insofar as Q.Nos.29,39,63,88,96 and 107 in General Studies and Mental Ability and Q.Nos.32,50,112 and 123 in subject, as illegal, arbitrary and unconstitutional, (iii) to declare the action of the 1^st respondent in not announcing merit list as per the category wise and not publishing the marks secured by the applicants as well as selected candidates and consequently proceeding with selection process by conducting certificate verification w.e.f.14-12-2012 as illegal and arbitrary and (iv) consequently to direct the 1^st respondent to consider the objections raised by the applicants for the final key released on 01-12-2012 insofar as Q.Nos.29,39,63,88,96 and 107 in General Studies and Mental Ability and Q.Nos.32,50,112 and 123 in subject and recast the entire select list if necessary by revaluation of entire list and finalize the selections to the post of Drug Inspector and consequently to direct the respondents to consider the claim of the applicants for appointment to the post of Drug Inspectors as per their eligibility and suitability with all consequential benefits. 6. Brief facts that are necessary for disposal of the present writ petitions may be stated as follows: Andhra Pradesh Public Service Commission (for short ‘APPSC’) issued Notification No.28/2011 on 27-12-2011 notifying 56 vacancies calling for the applications from eligible candidates to apply and participate in the selection process for the post of Drug Inspectors in A.P. Drug Control and Administration Services. As per the said notification, the said posts have to be filled up by conducting written examination. There is no preliminary examination and interview. As per the notification, written

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examination/main examination consists of two papers. One paper is for General Studies and Mental Ability consisting of 150 questions and each question carries one mark i.e., for 150 marks. The other paper is subject paper which is also has 150 questions, but each question carries two marks i.e., 300 marks. The question papers are in objective type. The examination was conducted on 29-04-2012. Thereafter, preliminary key answer was released on 09-11-2012 calling for objections from the candidates and when objections were received by the APPSC, final key was released on 01-12-2012. The preliminary and final key would show that APPSC is not in a position to conduct recruitment properly. In spite of releasing final key, there are several discrepancies in the final key and according to the applicants, there are mistakes with regard to the subject paper Q Nos.32, 50, 68, 112 and 123 and General Studies and Mental Ability Q. Nos.29,39,63,88,96 and 107. Hence, the O.As.

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7. APPSC filed counter affidavit admitting issuance of notification conducting of examination and as per the interim orders of the Tribunal, the selections and appointments were made subject to outcome of O.A. It is stated that as per the practice of APPSC, after conduct of written examination, a preliminary answer key was published on 09-11-2012 to enable the candidates to submit their objections, if any. APPSC received objections from the candidates in respect of certain questions including those disputed in the O.A., which in turn were referred to subject experts for verification and rectification wherever necessary.

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On receipt of report from the subject experts, the final answer key was published on 01-12-2012 duly accepting the recommendations of the experts and accordingly, the selections were finalized. The applicants in the O.A. could not come up for consideration, who inter alia alleged that there are some more mistakes in the final answer keys of Papers 1 and 2 and the correct answers given in the preliminary answer key were changed in the final answer key, that though there is one correct answer available in the preliminary key, but two answers were given as correct in the final key and that the Telugu translation of one question was wrongly done, that the APPSC is not serious about its business.

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The publication of preliminary key and subsequent final key is made with a bona fide intention that the candidates should not suffer hardship for the inadvertent mistakes that may have cropped up in preparing the preliminary key as human element is involved in setting of question papers and preparation of answer keys. This exercise made by the APPSC which is in the best interests of the candidates themselves was found fault with by the applicants, alleging that if only the APPSC is serious about their business, there is no necessity for two keys.

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The question papers and answer keys are prepared by Senior Professors of various Universities with vast experience who are specialized and distinguished in their field of work. As the said documents are highly confidential in nature, APPSC will not be in a position to have access to them at any point of time until the written examination is conducted. Even afterwards the mistakes, if any, pointed out will have to be corrected by the subject experts alone. Not being aware of this fact, the applicants are unnecessarily blaming the APPSC that as if APPSC itself is preparing the question papers and answer keys.

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After publication of preliminary answer key, APPSC received objections from the candidates with respect to several questions including all the questions raised in the O.A. which were all referred to the subject experts for verification. As per their recommendations, the final key was released. The applicants are now coming up with fresh allegations that some of the answer choices given in the preliminary key are correct and that APPSC has arbitrarily revised the same in the final key. Final answer key was published strictly as per the recommendations of the subject experts.

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The allegation that Q.No.63 of B series in General Studies has been wrongly translated into Telugu without there being a correct answer in Telugu version is untenable. In the instructions to the candidates printed on the question paper, it was clearly indicated that the question paper is set in English and translated into Telugu language and that English version will be considered as the authentic version for valuation purpose. Therefore, even assuming that this allegation is to be correct, the applicants have

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to answer the same based in English version. This recruitment being made to a Gazetted category post, the candidates are expected to have basic knowledge of English.

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With regard to allegation that Q.Nos.39,88,96 and 107 have been cancelled though there are correct answer choices, it is submitted that the same was done as per the recommendations of the experts. The further allegation that for Q.No.29 of A series (in fact it is B series) in this recruitment and for the same question in the question paper of Group, 4 Services, different answer choices were given is totally incorrect. In fact, the APPSC on noticing that the answer choice was wrongly given initially in Group IV services, got it rectified and published an errata on 01-01-2013. Therefore, there is no variation in the answer choices as alleged.

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The applicants who could not come up for selection, not being able to digest the fact that they are less meritorious to those selected are making wild allegations against APPSC by making references to o6her recruitments only to prejudice the Tribunal. The allegation that APPSC is indulging in wholesale/mass irregularities in all the recruitment is blatantly false and highly objectionable.

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The applicants need not make comments about the other O.A.9780 of 2012 relating to this recruitment and the interim order by the Tribunal. With respect to Group I examination, though initially the Tribunal stayed the declaration of the results of the main examination, finally disposed of O.As with a direction to refer 4 questions to the expert committee and the selection process was allowed to go on.

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Selection process for these posts was already completed and the list of selected candidates was already sent to the department and it is informed to APPSC that they have been given appointment orders and that they joined duty also. Therefore, it prays to dismiss the O.As.

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8. The Tribunal observed that Pharmacy Subject, Q.No.32, Series ‘A’ should have been cancelled and that there was a printing mistake in Q.No.68 and Q.No.114, the APPSC should

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not have been cancelled and Q.No.112, options 2 and 3 are correct and for Q.No.123, the Tribunal accepted the expert committee and for Q.No.29, General Studies and Mental Ability, the key is correct and ultimately held as follows:

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“In final analysis, Q.Nos.32 and 68 are found with printing mistakes and therefore, the action of the respondent APPSC is arbitrary in continuing he questions for evaluation. For Q.No.112, there are two correct answers and therefore, the contention of the respondent APPSC that there is one correct answer is arbitrary. It is not out of place to mention here that the court ruling not to interfere with the expert committee view is in the context of cases where matters of highly technical and complex natures are involved. IN the present case, this is a matter of simple common scientific knowledge which is backed by sufficient facts and ate and, therefore, the Court is of the view that there are two correct answers. The action of APPSC in continuing with one correct answer is found demonstrably wrong. For the Q.No.123 and 29, this Court goes along with the findings of the APPSC.

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In conclusion, the action of the respondents in continuing the Q.Nos.32 and 68 is found arbitrary and need to be deleted from the list. Further the action of respondents in canceling Q.No.114 is also found arbitrary as there is correct answer to it, which is amply demonstrated by documents produced by the applicants. Therefore, this question has to be retained in the list. The answer for Q.No.112 is demonstrably wrong and therefore, the applicants are entitled for marks for this question.

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In the light of the above, the respondents are directed to carry out the revaluation as per the above findings and finalize the merit list of the candidates and if the applicants names are found in the merit list, their cases may be considered for appointment to the post of Drug Inspectors. This exercise shall be completed within a period of six weeks from the date of a copy of this order.”

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Aggrieved thereby, these writ petitions are filed by the writ petitioners, who are third parties to the O.As..

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9. Sri D.Prakash Reddy, learned senior counsel appearing for some of the writ petitioners contended that the tribunal has not recorded any reasons as to how the key answers are demonstrably wrong or incorrect, that in respect of two questions it is a printing mistake, that the students of Pharmacy can easily answer the questions even though there is a slight printing mistake, that for Q.No.112, there is no factual foundation as to

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how two answers are correct, that basing on experts, Q.No.114 has been cancelled and that he prays to allow the writ petition setting aside the order of the tribunal.

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10. Sri G.Vidyasagar, learned senior counsel appearing for the writ petitioners contended that in pursuance of the interim order, the Tribunal appointed expert committee and it would have followed the recommendations made by the expert committee and that with regard to Q.No.114, there was no pleading in the O.A. and therefore the Tribunal exceeded its jurisdiction, that the Tribunal has undertaken the job of expert and substituting its views to that of expert committee which was appointed by the Tribunal itself, that the Tribunal has not given any reasons as to how the questions as pointed out in the O.A. are demonstrably incorrect or wrong, that the Tribunal ought not to have taken the role of an expert in altering the answers given by the experts for the objective type questions, that in pursuance of the order, the writ petitioners were appointed as Drug Inspectors and are continuing as such and hence, he prays to allow the writ petitions setting aside the impugned order.

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11. On the other hand, learned counsel appearing for the unofficial respondents contended that the Tribunal has given reasons by placing reliance on the authority subject textbooks and demonstrably shown that answers to the questions are wrong, that the Tribunal rightly directed the respondents to correct its mistakes, that the relative merit of the applicants is not assessed in accordance with the correct key and award of 1 mark may result in change of merit of hundred of students, that even if the two questions, which are printing mistakes and one question is demonstrably wrong, the APPSC ought not to have deleted as it would change the entire result and the difference of marks from the last selected candidate in the respective category with that of the applicants is 1 mark, that if the correct answers were taken into consideration, the applicants would have selected, that therefore, the arbitrary action of APPSC has to be rectified and that is the reason why, the Tribunal has rightly issued direction and that order needs no interference by this Court.

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12. Learned Government Pleader contended that as per the recommendations of APPSC, they appointed selected

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candidates and the appointments were given subject to result of O.A. and other cases pending before any Courts and therefore, there is no arbitrary action on the part of the Government in giving appointments to the writ petitioners basing on the merit list given by APPSC.

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13. Learned standing counsel for APPSC contended that as per the notification of APPSC in all respects with regard to conducting of examination and on consequential stage culminating selection shall be final and binding on all concerned, that the final key to the objective type questions, was given by expert committee, that no mala fides or arbitrariness is attributed to the expert committee, that basing on the key given by expert committee, select list was prepared and sent to Government and therefore, he prays to dismiss the writ petition. But, we are unable to accept the said contention for the reason that when APPSC should have deleted two questions as they are incorrect on the face of it and misleading the students, deletion of another question is arbitrary because for that question, there is a correct answer.

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14. A tribunal is an adjudicating authority. In order to be a tribunal, it is essential that such power of adjudication must be derived from a statute and such a power of adjudication implies that the authority must act judicially and must determine the dispute by the ascertainment of the relevant fact on the materials before it and by application of the relevant law to those facts. An administrative tribunal is similar to a court in certain aspects. Both of them are constituted by the State, invested with judicial powers and have a permanent existence. Thus, they are adjudicating bodies. They deal with and finally decide disputes between parties, which are entrusted to them.

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15. The writ petitions are filed under Article 226 of the Constitution of India. For issuance of Certiorari, when anybody of persons;

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a) having legal authority,

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b) to determine questions affecting the rights of subjects c) having the duty to act judicially

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d) act in excess of their legal authority

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A Writ of Certiorari may issue unless all these conditions

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are satisfied. Mere inconvenience or absence of other remedy, does not create a right to Certiorari. It may be issued to subordinate courts, inferior tribunals or other authorities for testing validity or otherwise of judicial acts. It will lie to control all subordinate courts and inferior tribunals, if they purport to act without jurisdiction, or in excess thereof or in violation of principles of natural justice, or commit any error of law apparent on the face of the record. Where it is said that the subordinate court or tribunal has gone wrong in law while acting within its jurisdiction, the writ court has only to see if the error is manifest, self evident and apparent on the face of the record. No elaborate examination of evidence is called for. While exercising jurisdiction under Article 226 of the Constitution of India, the High Court acts as a supervisory capacity and not as an appellate court or tribunal. It can neither re-appreciate nor re-valuate nor re-examine the facts and circumstances leading to the passing of the order impugned in the petition nor it can substitute its own judgment for that of the subordinate court or an inferior tribunal.

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16. The notification is in relation to filling up of 56 vacancies of Drug Inspectors issued by APPSC. The process of selection is most crucial and important part of recruitment exercise and involves a number of functional stages. The function of APPSC is to select those amongst eligible candidates on the basis of merit adjudged by adopting fairly laid down criteria and finally preparing a panel or select list of the successful or selected [1] candidates. In LEELADHAR V STATE OF RAJASTHAN , it was held thus:

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“The object of any process of selection for entry into service is to secure the best and most suitable person for the job, avoiding patronize and favouratism. The selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competition examination has come to be accepted almost universally as the gateway to public services.”

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From the above decision, it is clear that selection connotes judging of merit and suitability. If the selection process is vitiated by reason of adoption of unfair means i.e., not giving answer key properly or deleting the questions without any basis, then there is a possibility of depriving eligible candidates. For this purpose,

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APPSC must act fairly without any oblique motive by taking into the recommendations of the body of experts and eminent persons. While doing so, there should not be any mistakes in the objective type questions and there should not be any mistake with regard to the answers. One mistake or two mistakes in the objective type questions or the answer key may result in less meritorious persons may be appointed or a meritorious person may be deprived of getting less marks. Therefore, APPSC may be cautious and careful in evaluating proper questions and there should not be any printing mistakes and ultimately they finalize the answers to the questions with the aid of experts in the subject. Keeping the above principles in mind, it has to be seen whether the judgment under challenge in the writ petitions calls for any interference and whether there is error or law or fact apparent on the face of the record.

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17. It is relevant to refer to a decision, which was also referred by the tribunal, which is reported in KANPUR KUNIVERSITY THROUGH VICE CHANCELLOR AND OTHERS V [2] SAMIR GUPTA AND OTHERS , wherein it was held thus:

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“When the key answer supplied by the paper setter for multiple choice objective type test is wrong, the candidates giving the correct answer are entitled to full marks assigned to it, and after awarding such marks if they become qualified in the test, court must direct the authorities to admit them by way of relief. It is further held that the key answer supplied by the paper setter should normally be assumed to be correct and the correctness should be ascertained from standard on prescribed text books and not merely on the basis of inferences, and publication of the key answers along with result of the test is desirable in the interest of fairness.

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.. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text books, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.

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… Those textbooks support the case of the students fully, if this were a case of doubt, we would have unquestionably

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preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalikse the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.”

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From the above decision, it is clear that the jurisdiction of the Court is limited to the key to the questions, which are demonstrably wrong, the action of the respondents is mala fide and arbitrary. Both counsel appearing for the parties did not deny or dispute about this fact. The tribunal after analysis of the questions by referring to the various authoritative textbooks on the subject has considered the case objectively.

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18. Pharmacy Q.No.32 reads, ‘In a prescription ‘gid’

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means’

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Options: (i) four times a day (ii) quantity sufficient, (iii) One fourth ounce (iv) every other day.

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Even senior counsel appearing for the writ petitioners admit that it is a printing mistake with regard to letter ‘g’. But option (i) as answer as per the final key given by the APPSC. The tribunal observed that the question prescription ‘gid’ has no meaning. The word ‘qid’ which has a meaning as supported by documents. Even the experts admitted that there is a minor spelling mistake in the question i.e., instead of ‘qid’ it was printed as ‘gid’. Therefore, this question ought to have been cancelled by the APPSC.

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19. Similarly Q.No.68 reads, ‘R’ in prescription: (1) Repeat, (2) Rectify (3) Take (4)Supply

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Expert committee report also endorsed Option (3) as the correct answer. The expert committee also admitted that it is a spelling mistake because the letter ‘x’ was not printed. Therefore, it is nothing but misleading the students. In such circumstances, this question ought to have been cancelled. Admittedly, the aforesaid mentioned printing mistakes have not brought to the notice of the candidates writing examination.

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20. Q.No.114 reads, ‘In a prescription ‘STAT’ means (1) Straight (2) One half (3) At once (4) Single tablet at a

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time.

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For preparation of key, experts opinion may not be

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necessary. The APPSC can as well prepare a key basing on the Pharmacy text books. This question was cancelled by APPSC. It is not evaluated by the expert committee. No reasons were given for cancellation of this question. As per the Dispensing for Pharmaceutical Students, Twelfth Edition, Edited by S.J.Carter, the term STAT, its abbreviation is ‘stat’, its meaning is ‘immediately/at once’. As per common medical abbreviation, same meaning has been given in Health Service Executive Code of Practice for Healthcare Records Management. From the records, abbreviation ‘STAT’ means at once/immediately. Therefore, there is enough material to show that option (3) is the correct answer. This question ought not to have been deleted by APPSC. But, however, learned counsel for the petitioners vehemently contended that there is no factual foundation in the O.A. and in the absence of pleading, the Tribunal ought not to have given any finding with regard to this question.

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21. After filing of the counter affidavit by APPSC in the O.A., rejoinder was filed by the applicants, wherein it is specifically pleaded that Q.No.114, Subject Pharmacy was correct question and it need not be cancelled as right and exact correct option is there and this was cancelled and the reasons for cancellation was not known and Option (3) ‘at once’ is the correct answer. Therefore, a specific plea has been raised in the rejoinder by the applicants, which in our opinion forms part of pleading.

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22. Q.No.112 reads, ‘Method of sterilizing Metal Instruments’ (1) Adding antiseptic solution, (2) Steam under moist heat, (3) Hot air oven, (4) Radioactive isotopes.

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As per the final key given by APPSC, option (2) is the correct answer. According to the applicants, options (2) and (3) are correct. The tribunal after comparing the documents submitted by the applicants held that options (2) and (3) are correct.

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23. Learned counsel for the respondents placed reliance on the Hugo and Russell’s Pharmaceutical Microbiology, Edited by Stephen P.Denyer, Seventh Edition with regard to equipment metal instruments (including scalpels). The method of treatment

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Autoclave/Dry heat. Preferred method is Dry heat. Dry heat application is generally restricted to glassware and metal surgical instruments (where its good penetrability and non-corrosive nature are of benefit).

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In the book of Microbiology relied on by the learned counsel for the unofficial respondents by Michael J.Pelczar, JR. the method is dry heat. Hot-air oven are only used oils glass, sharg instruments, metal. The method Hot-air oven is suitable for a metal instrument.

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24. Basing on the above books, learned counsel for the unofficial respondents contended that Hot-air oven can be used for sterilizing metal surgical instruments also. The question is method of sterilizing metal instruments. Hot-air oven is not a method. It is only an instrument or vessel used for sterilizing. Therefore, finding of the tribunal that options (2) and (3) as correct is demonstrably wrong. Therefore, that finding has to be set aside.

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25. Basing on the above analysis, the tribunal held that matter is simple common scientific knowledge, which is backed by sufficient facts and data. So from the above analysis, there are mistakes in Q.Nos.32 and 68 and they are misleading. Therefore, the tribunal rightly deleted those questions.

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26. With regard to Q.No.114, action of APPSC is arbitrary as in the options, there is a correct answer. Therefore, it need not be deleted. Insofar as Q.No.112 is concerned, the finding of the tribunal is liable to be set aside.

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27. Learned senior counsel appearing for the petitioners relied on a decision reported in UNIVERSITY OF MYSORE V C.D. [3] GOVINDA RAO AND ANOTHER , wherein it was held thus (para 12):

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“Before we part with these appeals, however, reference must be made to two other matters. In dealing with the case presented before it by the respondent, the High Court has criticised the report made by the Board and has observed that the circumstances disclosed by the report made it difficult for the High Court to treat the recommendations made by the expert with the respect that they generally deserve. We are unable to see the point of criticism of the High Court in such academic matters. Boards of Appointments are nominated by

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the Universities and when recommendations made by them and the appointments following on them are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decision. In dealing with complaints made by citizens is regard to appointments made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified.”

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From the above decision, it is clear that it would be safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be.

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28. He further relied on a decision reported in BASAVAIAH V DR.H.l.RAMESH AND OTHERS^[4] , wherein it was held thus (para 38):

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“We have dealt with the aforesaid judgments to reiterate and

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reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fides have been alleged against the experts constituting the Selection Committee. It would normally be prudent wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in an appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters.”

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29. He further relied on a decision reported in SAJEESH BABU K. V M.K.SATHOSH AND OTHERS^[5] , wherein it was held thus (para 20):

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“It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.”

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In a general sense, an expert is a person of peculiar knowledge or skill as to some particular subject. In other words, he is professionally or peculiarly acquainted with its practices and usages. He made special study of the subject or acquainted special experience therein so that he may form an opinion that will assist the fact finder. The questions in the examination in the present case do not call for the opinion of an expert. Answers to those objective type questions can be verified from the reputed Pharmacy text books and correct answers can be arrived at. The APPSC ought to have cross checked the key relating to the aforesaid mentioned question No.114 and rectified the mistake. In respect of two questions, there are printing mistakes and two

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questions ought to have been deleted.

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30. He further relied on a decision reported in RAMESH CHANDRA SHAH AND OTHERS V ANIL JOSHI AND OTHERS^[6] , wherein it was held thus (para 24):

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“In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.”

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There is no dispute about the proposition of law laid down. In this case, the applicants are not challenging any one of the terms and conditions in the advertisement nor the methodology adopted by APPSC. The applicants are only pointing out the printing mistakes in relation to two questions and the correct answer is provided to another question, but it was deleted. The reasons as mentioned herein before it is demonstrably wrong committed by APPSC. Therefore, the above decision has no application to the present facts of the case.

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31. He further relied on a decision of Patna High Court reported in MANOJ KUMAR V STATE OF BIHAR^[7] , wherein it was held thus (paras 6 and 7):

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“The simplest way adopted by the Commission in such contingency is to omit the offending questions and to give pro rata marks to the examinees. N the matter of Judicial Service the Court found that the scaling down of the cut-off marks was more appropriate to meet the contingency.

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In the present case, the Commission appointed a Committee of experts who prepared the answer key afresh and re-evaluated all the answer sheets. In our opinion, the reevaluation of the answer sheets by the revised answer key should considerably mitigate the situation faced by the Commission.”

¶89

But in this case, the applicants had shown the printing mistakes on two questions and the deletion of one question is demonstrably and prima facie wrong. Therefore, the above decision has no application to the present facts of the case.

¶90

32. On the other hand, learned counsel appearing for the unofficial respondents relied on a decision reported in KANPUR UNIVERSITY THROUGH VICE CHANCELLOR AND OTHERS V SAMIR

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GUPTA AND OTHERS^[8] , wherein it was held thus (para 17):

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“Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U. P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.”

¶93

From the above decision, it is clear that answer which is demonstrably to be wrong, the Courts can interfere with the same. That is also case where Q.Nos.23,24 and 66 therein were demonstrably wrong.

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33. He further relied on a decision reported in THE CONVENOR, EMACET-92, ANDHRA UNIVERSITY V A.SWAPNA^[9] , wherein it was held thus :

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“The Rule nowhere says that the key answer is binding on the students. Even if the Rule were to say that the key answer is binding and final, it does not prevent this Court from scrutinizing whether the key answer is correct of wrong.”

¶96

If the key answer is demonstrably wrong and the students answer is correct, candidate should be given mark.

¶97

34. He further relied on a decision reported in GURUNAK

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DEV UNIVERSITY V SAUMIL GARG AND OTHERS^[10] , wherein it was held thus (Para 9):

¶99

“Insofar as the aforesaid eight questions are concerned, namely, Questions 36, 49, 109, 110, 128, 165, 167 and 168, there can be no doubt that the key answers provided by the appellant University are demonstrably erroneous. Insofar as key answers to Questions 41 and 152 are concerned, benefit of doubt, as per law well settled by this Court, has to go in favour of the examining body.”

¶100

35. He further relied on a decision reported in MOHD ALTAF (2) AND OTHERS V U.P.PUBLIC SERVICE COMMISSION AND ANOTHER^[11] , wherein it was held thus (Para 1):

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“It is settled that while filling up the vacancies in the State services, the Government has to act bona fide and not arbitrarily and also appointment to the services should be strictly on merits. Allegation in this group of matters is that selected candidates who were eligible for appointment on merits were not appointed and less meritorious candidates were appointed for extraneous reasons. For this purpose, merit list was not at all disclosed. For finding out the truth, we are adjourning these matters for getting correct information from the Uttar Pradesh Public Service Commission withregard to the selection of the candidates for the post of Principals which were advertised in the year 1996.”

¶102

36. He further relied on a decision reported in MEHAR SINGH SAINI, CHAIRMAN, HARYANA PUBLIC SERVICE COMMISSION AND OTHERS, IN RE^[12] , wherein it was held thus (Para 6):

¶103

“Higher the public office, greater is the responsibility. The adverse impact of lack of probity in discharge of functions of the Commission can result in defects not only in the process of selection but also in the appointments to the public offices which, in turn, will affect effectiveness of administration of State. Most of the democratic countries in the world have set up Public Services Commissions to make the matter of appointments free from nepotism and political patronage. For instance the Conseil d'Etat in France, which is composed of the cream of the French Civil Service, has acquired considerable veneration for its capacity to police intelligently the complex administration of the modern state. Justice J.C. Shah in his report on the excesses of the Emergency, struck by the "unhealthy factors governing the relationship between ministers and civil servants", recommended the adoption of droit administratif of the French model by the Government. He observed that the commitment of a public functionary should be to the duties of his office, their due performance with an emphasis on their ethical content and not to the ideologies, political or otherwise of the politicians, who administer the affairs of the State.”

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37. He further relied on unreported decision in Civil Appeal No.1997 of 2008 in case of PANKAJ SHARMA V STATE OF JAMMU AND KASHMIR, wherein it was held thus (Para 43):

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“...Therefore, all the questions, which have wrong spellings of the words used therein have to e treated as wrong

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questions. IN all, there are 12 such questions in Sociology paper i.e., Q.Nos.17,37,46,53,60,72,73,83,93,97,98 and 113 with printing errors/spelling mistakes. Out of these questions, printing error in the word ‘Kwekiuti’. The stand of Commission that the questions having only major printing errors or those which had not been corrected by announcements were deleted is equally unacceptable. There is no record available to show the questions which were actually corrected by announcements. Therefore, neither it can be said nor it has been shown by the Commission which were those questions having printing errors and deserved correction, but had not been corrected through announcements in the Examination Centres.”

¶107

38. He further relied on unreported decision in Civil Appeal Nos.2525-2516 of 2013 in case of RAJESH KUMAR V STATE OF BIHAR, wherein it was held thus (Para 18):

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“… The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.”

¶109

39. He further relied on a decision reported in CONVENOR, J.N.T. UNIVERSITY, HYDERABAD V C.SWARNALATHA AND OTHERS

¶110

[13] , wherein it was held thus:

¶111

“The action of academic bodies, though administrative in nature, yet are subject to the same principles of fair play and reasonableness and has to be decided by application of the well settled principle and if found wanting, it would be the duty of the Court to strike it or else the Court would be failing to discharge the constitutional duty cast upon it.”

¶112

40. He further relied on unreported decision of this court in W.P.Nos.2392 and 6009 of 2013 in case of E.PRASAD V APPSC AND OTHERS, wherein it was held thus:

¶113

“But it is to be noticed that having regard to the nature of examination, which is objective type with multiple choice questions, where the relative merit of applicants is being assessed, illegal award of one mark may result in change of merit of hundreds of students. In that context if correct answers are applied to the questions, it is not known as to how may, who were awarded marks for wrong answers, will lose their marks and what would be the cut-off mar for gaining entry

¶114

into the main examination.”

¶115

41. It is not in dispute that each question carries 2 marks. Because of non deletion of Q.Nos.32 and 68, there is every possibility of effect in the rank in the merit list. Similarly, deleting Q.No.114 is arbitrary as there is correct answer. So, the answer given by the candidates for two questions cannot be evaluated and for correct answer to Q.No.114, marks have to be given. It is not in dispute before this Court that objections have been raised when APPSC released the preliminary key. Candidates raised an objection with regard to these three questions. Therefore, APPSC ought to have released the final key duly correcting the mistakes pointed out.

¶116

42. The 1^st applicant in O.A.No.9780 of 2012 got 375 marks, whereas cut off mark is 379. 2^nd applicant in the said O.A. got 378 marks, whereas cut off mark is 378. 1^st applicant in O.A.10171 of 2012 got 378 marks, whereas cut off mark is 378, 2^nd applicant got 371 marks, whereas cut off mark is 372 and 3^rd applicant got 369 marks, who is BC-B category, whereas cut off mark is 370. So difference of mark is only one from the last selected candidate when compared with two of the applicants in the O.As. There is no difference of marks in respect of one applicant and four marks in respect of another applicant. In view of arbitrary action on the part of APPSC, there is every possibility to arrive at a conclusion that the final mark list has to be altered or changed by duly taking note of the above aspects. Such is the case, definitely, the select list cannot be said to be the correct valuation of question and answers at least in respect of three questions.

¶117

43. In view of the above discussion, we have no hesitation to hold that there is no error apparent on law or on facts on the face of the record in the impugned order. The findings are based upon proper appreciation of material on record. None of the findings except Q.No.112 is shown to be false or incorrect. Therefore, there are no grounds to interfere with the order of the tribunal. Hence, the writ petitions are devoid of merit and are liable to be dismissed.

¶118

44. Accordingly, the writ petitions are dismissed. Since the direction given by the tribunal to complete the exercise is over, we direct the respondents to complete the said exercise as given by the tribunal within a period of 8 weeks from the date of receipt of a copy of this order. No order as to costs.

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45. Miscellaneous petitions, if any, pending in these writ petitions shall stand closed.

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K.C.BHANU, J

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ANIS, J

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DATED: 11^TH DAY OF SEPTEMBER, 2014 Hsd

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