Unsuccessful public-service examination candidates challenged deletion of 12 questions and equal bonus marks for all candidates. The Court upheld the Commission's decision, declined to reassess expert opinion or require pro-rata marks, and dismissed the writ petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
ON THE 7TH DAY OF JULY, 2022
BEFORE:
HON’BLE SHRI JUSTICE MANOJ K. TIWARI Writ Petition (S/S) No. 481 of 2022
BETWEEN:
Shailesh Kumar Joshi & another … Petitioners
AND:
Uttarakhand Public Services Commission & another … Respondents
Petitioners
(By Mr. M.C. Kandpal, Senior Advocate with Mr. B.D. Pande, Mr. Harshit Sanwal, Mr. Pooran Singh Rawat, Mr. Hari Mohan Bhatia, Mr. Karan Anand, Mr. Pankaj Kapil, Mr. Dushyant Manali, Mr. D.P. Mittal, Mr. Manish Lahoni, Mr. Parnav Singh, Mr. Rajat Mittal, Mr. P.P. Bhatt, Ms. Deepa Arya, Mr. Sandeep Tiwari & Mohd. Matloob, Advocates)
Respondents
(By Mr. P.C. Bisht, learned Additional C.S.C. with Mr. V.S. Rawat, learned Brief Holder and Mr. Ashish Joshi, learned counsel for the Uttarakhand Public Service Commission)
With
Writ Petition (S/S) No. 410 of 2022 Writ Petition (S/S) No. 417 of 2022 Writ Petition (S/S) No. 482 of 2022 Writ Petition (S/S) No. 498 of 2022 Writ Petition (S/S) No. 499 of 2022 Writ Petition (S/S) No. 506 of 2022 Writ Petition (S/S) No. 562 of 2022 Writ Petition (S/S) No. 610 of 2022 Writ Petition (S/S) No. 617 of 2022 Writ Petition (S/S) No. 634 of 2022 Writ Petition (S/S) No. 638 of 2022 Writ Petition (S/S) No. 641 of 2022 Writ Petition (S/S) No. 648 of 2022 Writ Petition (S/S) No. 649 of 2022 Writ Petition (S/S) No. 650 of 2022 Writ Petition (S/S) No. 652 of 2022 Writ Petition (S/S) No. 655 of 2022 Writ Petition (S/S) No. 657 of 2022 Writ Petition (S/S) No. 672 of 2022 Writ Petition (S/S) No. 675 of 2022
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Writ Petition (S/S) No. 677 of 2022 Writ Petition (S/S) No. 681 of 2022 Writ Petition (S/S) No. 703 of 2022 Writ Petition (S/S) No. 718 of 2022 Writ Petition (S/S) No. 731 of 2022 Writ Petition (S/S) No. 748 of 2022 Writ Petition (S/S) No. 765 of 2022 Writ Petition (S/S) No. 831 of 2022 Writ Petition (S/S) No. 927 of 2022 Writ Petition (S/S) No. 1146 of 2022 Writ Petition (S/S) No. 1175 of 2022 Writ Petition (S/S) No. 638 of 2022
JUDGMENT
1. On 09.08.2021, Uttarakhand Public Service Commission ( hereinafter referred to as “Commission” ) issued an advertisement inviting applications for Combined State (Civil) Lower Subordinate Service Examination-2021. The selection process consisted of (i) Preliminary Test, (ii) Main Examination and (iii) Interview.
2. Petitioners responded to the said advertisement and they were permitted to appear in the preliminary examination held on 12.12.2021. Since petitioners could not qualify preliminary examination, therefore, they are before this Court, challenging the decision taken by the Commission to award bonus marks to all candidates in respect of 12 questions, which were found to be erroneous.
3. Since common questions of fact and law are involved in these petitions, therefore, these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPSS No. 481 of 2022 alone are being considered.
4. Writ Petition (S/S) No. 481 of 2022 has been filed by two persons, seeking the following relief:-
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5. Petitioners applied for Combined State (Civil) Lower Subordinate Service Examination-2021 in response to an advertisement issued by the Commission and they were issued Admit Card for appearing in the preliminary examination. Petitioners appeared in the preliminary examination and secured 103.75 and 103.50 marks, respectively.
6. According to petitioners, they were entitled to reservation available to economically weaker sections and cut-off marks in preliminary examination for the said category was 105. There were 150 Multiple Choice Questions in preliminary examination, which were common to all the candidates; however, these questions were rearranged in different set of question papers. It is further the case of the petitioners that petitioner No. 1 was given Question Booklet Series ‘C’, while petitioner No. 2 was given Question Booklet Series ‘A’. After preliminary examination, provisional answer key to different Question Booklet Series was uploaded in the web-portal of the Commission and candidates were told that they can submit objection against a wrong question or a incorrect answer, shown as ‘correct’ in the answer key. Petitioners did not submit any objection to the answer key.
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7. Petitioners have challenged the decision taken by the Commission, whereby it was decided to give bonus marks in respect of certain questions and also the answers to certain questions, which were shown as ‘correct’ in the answer key.
8. According to the petitioners, if 12 bonus marks were not decided to be given to all candidates then petitioners’ names would have figured in the list of successful candidates. Petitioner No. 1 has also challenged Question No. 91, setout in Question Booklet Series ‘C’, which reads as under:-
91. As per census 2011, in India per 1000 males,
9. It is contended that option ‘(b)’ gives the correct answer to the aforesaid question, and petitioner No. 1 had marked option ‘(b)’ in answer to the said question, therefore, he was entitled to ‘1’ mark and anyone, who had given wrong answer to the said question, gets negative mark to the extent of -0.25 (minus .25 marks). However, by the impugned decision, a candidate who gave wrong answer to the said question also became entitled to ‘1’ mark. This, according to petitioners, is unjust and amounts to treating unequals as equal. Decision to award bonus marks is also challenged on the ground that none of the 12 questions, which were decided to be removed, were erroneous and the decision to delete these questions is unsustainable.
10. In the counter affidavit filed by the Commission, it is stated that in the preliminary examination, Objective Type Questions were asked and
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candidates were required to mark any one of the four options, which according to them gave the correct answer; the provisional answer key was declared on 30.12.2021 and was uploaded in the web portal on 31.12.2021 and candidates were told that they may file objection in respect of any question in the preliminary examination, on or before 06.01.2022. It is further stated that as many as 1010 objections were received in respect of 48 questions, which were referred to a Committee of Experts. The Committee of Experts considered the questions in the light of objections and found that as many as 10 questions are erroneous and 2 questions have more than one correct answer. The opinion of the Expert Committee was considered and discussed by the Commission in its meeting held on 28.01.2022 and with a view to maintain fairness, the Commission decided to delete 12 questions found to be erroneous and to give 12 bonus marks in respect of these questions to all the candidates. It is further contended that since petitioner had not submitted objection to the provisional answer key, therefore, they have no right to challenge the final answer key, at this belated stage.
11. It is further contended in the counter affidavit that the candidates declared successful in the preliminary examination have not been impleaded in the writ petition; in case, writ petition is allowed, the successful candidates are bound to be affected; and the contention of the petitioners, if accepted, then it would further delay the selection process. It is further contended that the decision to give 12 bonus marks, equally to all the candidates, ensures fairness and it suffers from no infirmity or illegality whatsoever.
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12. Petitioners in some other writ petitions have contended that the decision to give 12 bonus marks, to all the candidates, is flawed, instead the Commission should have given pro-rata marks to the candidates, depending upon the number of questions attempted by a candidate, out of those 12 questions. It is further contended by some petitioners that answer to only six out of 12 questions were erroneous, therefore, the Commission was not justified in deleting 12 questions and awarding bonus marks in respect of those 12 questions. It is further contended on behalf of some of the petitioners that 12 bonus marks should not have been given equally to all candidates and bonus marks should have been given only to such candidates, who had actually attempted the deleted questions, depending upon the number of questions they attempted.
13. State Public Service Commission holds selection for appointment to various public services of the State. Holding competitive examination for appointment to public services is a mammoth exercise due to huge number of candidates, who participate in the selection process. Public interest demands that selection process should be concluded as early as possible to ensure that appointments to public posts are not unnecessarily delayed.
14. Learned counsel appearing for the Commission submits that more than 80000 candidates had appeared in the preliminary examination held on 12.12.2021. Purpose of preliminary test is to shortlist the candidates for main
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examination. In main examination, Descriptive Type Questions are asked and due to time/effort involved in evaluation of answer-sheets of the main examination, only limited number of candidates, who qualify in the preliminary test, are permitted to appear in the main examination.
15. It is well settled that High Court, while exercising power of judicial review, cannot assume the role of a Subject Experts and it cannot decide, whether a option treated as ‘correct’ in reply to a question by Subject Expert, is correct or not. Thus, this Court while exercising power under Article 226 of the Constitution cannot sit in appeal over the decision taken by Subject Experts.
16. H on’ble Supreme Court in the case of H.P. Public Service Commission v. Mukesh Thakur, reported in (2010) 6 SCC 759, has held as under:-
“20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.”
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extremely reluctant in substituting its own views over the opinion of subject experts in academic matters. Hon’ble Supreme Court in the case of Central Board of Secondary Education v. Khusboo Shrivastava and others, reported in (2014) 14 SCC 523 has held as under:-
“11. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. This Court in Maharashtra State Board of Secondary and Higher Secondary Education v. ParitoshBhupeshkumarSheth has observed:
“ 29 . … As has been repeatedly pointed out by this Court, the court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grassroots problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. ”
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13 to 17 of the aforesaid judgment, are extracted
below:-
“13. The point that arises for the consideration of this Court is whether the revised select list dated 21-5-2019 ought to have been prepared on the basis of the 2nd Answer Key. The appellants contend that the wait list also should be prepared on the basis of the 3rd Answer Key and not on the basis of the 2nd Answer Key. The 2nd Answer Key was released by RPSC on the basis of the recommendations made by the expert committee constituted pursuant to the directions issued by the High Court. Not being satisfied with the revised select list which included only a few candidates, certain unsuccessful candidates filed appeals before the Division Bench which were disposed of on 123-2019. When the Division Bench was informed that the selections have been finalised on the basis of the 2nd Answer Key, it refused to interfere with the select list prepared on 17-9-2018. However, the Division Bench examined the correctness of the questions and the answer keys pointed by the appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed RPSC to prepare the revised select list and apply it only to the appellants before it.
14. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re-evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates. Courts have to show deference and consideration to the recommendation of the expert committee who have the expertise to evaluate and make recommendations.
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. 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:
“ 31 . On our part we may add that sympathy or compassion does not play any role in the
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matter of directing or not directing reevaluation 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
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state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.”
16. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the expert committee in its judgment dated 12-3-2019. Reliance was placed by the appellants on Richal v. Rajasthan Public Service Commission . In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case.
17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalisation of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularisation. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.”
19. It is not in dispute that objections, received in respect of provisional answer key uploaded on 31.12.2021, were placed before the Expert Committee constituted by the Commission. The said Committee examined the disputed questions and their respective answers, as given in the provisional answer key and found that 12 questions are erroneous. Based on the recommendation of the Expert Committee, Commission decided to delete 12 questions and to give equal bonus marks to all the candidates.
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20. This Court cannot go into merits of the opinion given by Experts constituting the Committee for want of expertise in the subject. Even otherwise also, the opinion given by Experts and decision taken by Commission pursuant thereto would be for all the candidates. It is not the case of petitioners that the opinion of the Experts or the decision taken by Commission is infected with malice or ill-will.
21. Commission is a specialized body for holding selection to different superior services in the State. A decision taken by Commission in bonafide exercise of power can be interfered with, only if it is arbitrary or is in violation of settled norms of fair play in action or is in violation of any provision of law.
22. In a recent judgment rendered by Hon’ble Supreme Court in the case of Punjab State Cooperative Milk Producers Federation Ltd. V. Balbir Kumar Walia, reported in (2021) 8 SCC 784, the scope of judicial review over administrative decisions has been considered and discussed. Para 43 of the said judgment is reproduced below:-
43. The power of judicial review over the administrative decisions of the State was examined by a judgment of this Court in Tata Cellular v. Union of India . Though, that is a case of grant of contract, but the principles of law are very well applicable to the exercise of power of judicial review by the High Court in the administrative decisions of the State within the meaning of Article 12 of the Constitution. The Court held as under:
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Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
( i ) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. ( ii ) Irrationality, namely, Wednesbury unreasonableness.
( iii ) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secy. of State for the Home Deptt., ex p Brind , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, ‘consider whether something has gone wrong of a nature and degree which requires its intervention’.
94 . The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including
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its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles.”
23. While holding competitive examination, the Commission is required to take decisions to deal with emergent situations. A fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. This Court does not sit in appeal over the decisions taken by Public Service Commission.
24. Petitioners, in some of the writ petitions, have contended that only 6, out of 12 deleted questions, were erroneous, therefore, the Commission could not have deleted 12 questions and given 12 bonus marks to all the candidates.
25. The said contention cannot be accepted, as this Court cannot substitute its own views regarding the 12 questions in preference to the opinion of professional men possessing domain knowledge and rich experience of handling such type of problems.
26. The challenge to the decision taken by the Commission, to give 12 bonus marks to all candidates, is also not sustainable. Public Service Commission is a Specialised Body, established for holding selection to Public Services. As a Selecting Body, it has certain inherent rights. It is for the Commission to decide, how to conduct its affairs and interference with the decision taken by the
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Commission would be warranted only if it is against the settled norms or in violation of law.
27. The Expert Committee considered the objections and after much deliberation, arrived at the conclusion that 12 questions are flawed. Based on opinion of the Expert Committee, Commission decided to delete those questions gave equal marks to all candidates. The decision so taken by the Commission is in consonance with Article 14 of the Constitution of India and cannot be said to be unjust or arbitrary.
28. For a mistake in the questions framed by Selecting Body, an examinee should not suffer. The Commission gracefully admitted its mistake and decided to give 12 bonus marks, in respect of 12 deleted questions to all candidates. Since bonus marks are given to all candidates across the board, therefore, the challenge thrown by petitioners to the said decision appears to be without any substance.
29. Although, several course of action were available to the Commission to deal with the situation, viz. it could have scored off all the 12 questions, found erroneous by the Expert Committee and have assessed the merit of candidates based on their performance in the remaining 138 questions or the Commission could have given pro-rata marks to such candidates, who have attended all or any of those 12 deleted questions, however, the Commission chose to give bonus marks to all candidates for 12 deleted questions. The course of action chosen by Commission cannot be said to be arbitrary nor it is in violation of any law. As Selecting Body, Commission
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had the discretion to chose one out of several course of action, and the decision to choose one particular course of action cannot be said to be unjust or unreasonable.
30. Since the course of action chosen by the Commission is neither in violation of any law nor it can be said to be arbitrary or malicious, therefore, decision taken by Commission cannot be interfered with, while exercising power of judicial review.
31. The entire selection process cannot be derailed only because some of the candidates are disappointed or perceive some injustice having been caused to them by a particular course of action decided to be followed by the Commission.
32. It is contended on behalf of some of the petitioners that candidates, who had not attempted any of the deleted questions, are not entitled for any bonus mark and bonus marks can be given only to such candidates, who had attempted any or all of those questions, depending upon the number of questions they attempted. This submission is based on the assumption that candidates who attempted the deleted questions knew the correct answer and they were more meritorious than those who had not attempted any or all of the deleted questions.
33. This submission appears to be attractive in the first blush, however, on deeper scrutiny, it is without any substance. There can be valid counter argument that candidates, who attempted the deleted questions by marking one out of four options as answer, had no knowledge of the subject and they
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merely took a chance by marking one option; while, meritorious candidates, who knew that the questions are flawed, refrained from marking any option in respect of those 12 erroneous questions, which were deleted, therefore, candidates who did not attempt any of the deleted questions alone were entitled to bonus marks, as they knew that none of the options gave the correct answer.
34. Even otherwise also, having regard to the very large number of candidates, it would very difficult, nay impossible, to physically examine the answer scripts to identify candidates who attempted all or any of the 12 deleted questions. The Commission, as Selecting Body, in its discretion chose a particular course of action, out of many. Unless said course of action is proved to be in violation of law or arbitrary, this Court will not interfere with the decision so taken by the Commission.
35. For the aforesaid reason, the contention raised on behalf of petitioners in some of the petitions that the Commission should have given pro-rata marks for the 12 deleted questions, also cannot be accepted.
36. Public Service Commission has been established under Article 315 of Constitution of India, thus, it is a Constitutional Authority. As a specialized body for holding competitive examinations for appointment to public services, it can devise ways and means for conducting its affairs. Certain degree of discretion is available to the Commission, as a Selecting Body. Interference with exercise of such discretion would be permissible only when it is contrary to laid
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down norms or is irrational. The impugned decision taken by the Commission cannot be said to be arbitrary or irrational. Although, other options were also available to the Commission, however, it is for the Commission to decide, which out of several options, it chooses. Every statutory authority or a Selecting Body is entitled to play in the joints so that it is able to discharge its functions. The scope of judicial review in such matters is very limited and the decision taken by Commission, impugned in these writ petitions, cannot be interfered with in the absence of any valid ground.
37. For the aforesaid reasons, this Court does not find any reason to interfere with the selection process.
38. Accordingly, the writ petitions fail and are dismissed.
(Manoj Kumar Tiwari, J.)
Aswal
3 issues framed by the court
Could the Court reassess the Expert Committee's opinion that 12 preliminary examination questions were erroneous?
Was awarding 12 bonus marks to every candidate for deleted questions arbitrary or contrary to Article 14?
Was the Commission required to award pro-rata marks only to candidates who attempted the deleted questions?
Colour shows how this judgement treated each authority
H.P. Public Service Commission v. Mukesh ThakurRelied on¶45
H.P. Public Service Commission v. Mukesh Thakur, reported in (2010) 6 SCC 759 · Who else cites this
Central Board of Secondary Education v. Khusboo Shrivastava and othersRelied on¶49
Central Board of Secondary Education v. Khusboo Shrivastava and others, reported in (2014) 14 SCC 523 · Who else cites this
Vikesh Kumar Gupta v. State of RajasthanRelied on¶52
Vikesh Kumar Gupta v. State of Rajasthan, reported in (2021) 2 SCC 309 · Who else cites this
Punjab State Cooperative Milk Producers Federation Ltd. V. Balbir Kumar WaliaRelied on¶71
Punjab State Cooperative Milk Producers Federation Ltd. V. Balbir Kumar Walia, reported in (2021) 8 SCC 784 · Who else cites this
3 provisions across 2 enactments
Shailesh Kumar Joshi
Uttarakhand Public Services Commission
Manoj K. Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
