HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A[ENTITY]F[ENTITY]R[ENTITY] Reserved on :15[ENTITY]10[ENTITY]2019 Delivered on : 20[ENTITY]11[ENTITY]2019 Court No[ENTITY] - 1 Case :- SPECIAL APPEAL No[ENTITY] - 93 of 2018 Appellant :- [ENTITY] Prin[ENTITY]Secy[ENTITY](Basic Education) Lko[ENTITY]& Ors[ENTITY] Respondent :- [ENTITY][ENTITY][ENTITY] And Ors[ENTITY] Counsel for Appellant :- C[ENTITY]S[ENTITY]C[ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY],[ENTITY],Pt[ENTITY] [ENTITY],[ENTITY],[ENTITY],[ENTITY] Hon'ble [ENTITY],J[ENTITY]
Hon'ble [ENTITY],J[ENTITY]
As Per: Hon'ble [ENTITY], J[ENTITY]
1) Heard Sri [ENTITY], learned Advocate General assisted by Sri [ENTITY], learned counsel for the appellants-State and Sri [ENTITY], learned Senior Advocate assisted by Sri [ENTITY], learned counsel for the respondents[ENTITY]
2) This intra-Court appeal has been filed challenging the judgment and order dated 06[ENTITY]03[ENTITY]2018 passed by learned Single Judge in Writ Petition No[ENTITY]28222 (S/S) of 2017; [ENTITY][ENTITY] [ENTITY] and 103 others Vs[ENTITY] State of U[ENTITY]P[ENTITY] and others, whereby the learned Single Judge issued mandamus commanding the Secretary, Examination Regulatory Authority to make fresh evaluation of all the answer sheets of the candidates by deleting 14 questions as stated in paragraph Nos[ENTITY]85 and 86 of the order from total questions of the question papers and the Secretary, Examination Regulatory Authority was directed to declare the result on the basis of above direction, as expeditiously as possible, preferably, within a period of one month and thereafter, the examination of the post of Assistant Teachers Recruitment Examination, 2018 shall be conducted and it was observed that it is needless to direct that till the completion of aforesaid exercise, the examination of the [ACT] be postponed for further date[ENTITY]
3) Factual matrix of the case is that a writ petition was filed before the learned Single Judge by the [ENTITY], who were reverted as Assistant Teachers of primary schools run and managed by the Board of Basic Education, U[ENTITY]P[ENTITY] during the period 19[ENTITY]02[ENTITY]2006[ENTITY] The [ENTITY] were appointed and were imparting education to the children of the State in the primary schools run and managed by the Board of Basic Education[ENTITY]
4) After enforcement of [ACT] the National Council for Teacher's Education (NCTE) was declared the academic authority by the Central Government[ENTITY] The NCTE laid down the minimum qualification for a candidate to be appointed as Teacher in Class 1st to Class 8th vide notification issued on 23[ENTITY]08[ENTITY]2010, wherein passing of Teachers Eligibility Test (herein after referred as "TET") to be conducted by the appropriate Government in accordance with the guidelines framed by NCTE was made one of the minimum qualification[ENTITY]
5) Thereafter, NCTE issued detailed guidelines on 11[ENTITY]02[ENTITY]2011 for conducting the TET and structure and contents of examination papers and nature and standard of questions etc[ENTITY] were also provided in the said guideline[ENTITY]
6) The State Government issued a Government Order on 24[ENTITY]12[ENTITY]2014, wherein the detailed guidelines relating to syllabus, structure and contents of examination papers and standard of question etc[ENTITY] were issued[ENTITY]
7) The petitioners, who were [ENTITY] had been given appointment on the post of Assistant Teacher in the primary schools run by Board of Basic Education, therefore, the absorption was nullified by the Full Bench of this Court vide order dated 12[ENTITY]09[ENTITY]2015 in Writ-A No[ENTITY]34833 of 2014; Anand Kumar Yadav and others Vs[ENTITY] Union of India and others[ENTITY] The judgment passed by the Full Bench of this Court was upheld by Hon'ble Supreme Court vide order dated 25[ENTITY]08[ENTITY]2017, however, the Supreme Court directed to the State Government to provide opportunity of participation of two consecutive recruitments in case the [ENTITY] acquire the requisite qualification of TET[ENTITY]
8) In compliance of the judgment and order passed by the Full Bench of this Court as well as affirmed by Hon'ble Supreme Court, the State Government issued direction to the Examination Regulatory Authority to conduct the U[ENTITY]P[ENTITY] TET, 2017 providing certain conditions of relaxation in age and weightage of experience of the post of [ENTITY] upto 25 marks in the recruitment process[ENTITY] In pursuance thereof, the U[ENTITY]P[ENTITY] TET Examination, was held on 15[ENTITY]10[ENTITY]2017, wherein the respondents-writ petitioners appeared[ENTITY]
9) The answer key was issued, to which objections were invited and a final answer key was, thereafter, issued[ENTITY] The candidates appearing in the said examination raised plea of there being incorrect or confusing questions with incorrect or multiple answers by filing Writ Petition No[ENTITY]28222 (S/S) of 2017 on the following relief:
"Issue a writ, order or direction in the nature of certiorari quashing the answer key of UP-TET Examination 2017 (Paper-1) dated 06[ENTITY]11[ENTITY]2017 issued by Examination Controlling Authority, Uttar Pradesh, Allahabad for the appointment of teachers for Class I to V[ENTITY] Issue a wri, order or direction in the nature of mandamus to revise the result and to grant grace marks to the petitioners for the questions which were wrong and which were out of syllabus in the Uttar Pradesh Teacher Eligibility Test 2017 conducted by the respondent no[ENTITY] 3 Issue a writ, order or direction in the nature of mandamus to direct the respondent authorities for redressing the grievance of the petitioners by appointing the High Level Expert Committee and giving the opportunity of hearing to the petitioners by fixing date and time before declaration of the examination result i[ENTITY]e 30[ENTITY]11[ENTITY]2017[ENTITY]
Issue a writ, order or direction in the nature of mandamus thereby directing the respondent authorities to delete the questions from the question paper, the questions which were wrong and which were out of syllabus and thereafter declare the result of UP-TET 2017[ENTITY]
Issue a writ, order or direction in the nature of mandamus to stay the declaration of the examination result UP-TET 2017 which shall be declared on 30[ENTITY]11[ENTITY]2017 by the respondent no[ENTITY] 3 till the redressal of the grievance of the petitioners Issue a writ , order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case[ENTITY]
And allow this writ petition with cost[ENTITY]"
10) The learned Single Judge decided the issue involved in the writ petition vide impugned judgment and order dated 06[ENTITY]03[ENTITY]2018, against which, Special Appeal No[ENTITY]93 of 2018 was preferred by the respondent-appellants[ENTITY]
11) Before the learned Single Judge, various grounds were taken by the respondent-appellants contending that the questions were ambiguous in as much as the questions were not clear or the questions were capable of having two or more answers or for that matter, the question was incapable of being answered[ENTITY] A plea was also taken that the questions were out side the syllabus and that once the NCTE guidelines had indicated marks to be assigned to respective segments of the question paper, then the regulatory authority while setting the question paper was not empowered to reassign the said marks to other segments of the question paper[ENTITY]
12) Several other special appeal Nos[ENTITY]86 of 2018, 101 of 2018, 107 of 2018 and 119 of 2018 were filed before this Court, wherein, the Division Bench of this Court vide judgment and order dated 17[ENTITY]04[ENTITY]2018 passed the following judgment and order :
"36[ENTITY] Keeping in view the aforesaid discussion and the report received from the subject experts dated 11[ENTITY]04[ENTITY]2018, Special Appeal No[ENTITY] 93 of 2018 is partly allowed to the following extent:
(i) The 10 questions found by the learned Single Judge to be incorrect and were directed to be deleted, will stand modified to the extent that out of those 10 questions only three questions are found to be incorrect based upon the report of the panel of experts and we direct that the Examination Regulatory Authority shall award grace marks for those three questions containing incorrect answer in the answer key[ENTITY]
(ii) The 4 questions which were found out of syllabus by the learned Single Judge are held to be within syllabus and to that extent the direction issued for deleting those 4 questions will stand modified[ENTITY]
37[ENTITY] In Special Appeal No[ENTITY]101 of 2018, 6 questions which were alleged to be containing wrong answers or wrongly framed, were sent to the experts and their answers have been found to be matching with the answers contained in the final answer key of the Examination Regulatory Authority, as such the said appeal is dismissed[ENTITY]
38[ENTITY] In Special Appeal No[ENTITY]86 of 2018, the relief relating to 4 additional questions being wrongly framed or containing incorrect answers stands rejected in view of the fact that no objections were taken with regard to those 4 questions before the Examination Regulatory Authority at the time when opportunity was given after the declaration of first answer key and further the 5 questions being alleged to be out of syllabus also does not find merit and as such the said appeal is dismissed[ENTITY] Further relief in the said appeal claimed with regard to improper layout of the question paper being not in conformity to the Government Order dated 24[ENTITY]12[ENTITY]2014 and with regard to comprehension also does not find any merit and is rejected[ENTITY]
39[ENTITY] Special Appeal No[ENTITY]107 of 2018 stands disposed of in view of the fact that we have awarded grace marks instead of deleting the questions in view of the relief claimed in the said special appeal[ENTITY]
40[ENTITY] No one has pressed Special Appeal No[ENTITY]119 of 2018 although hearing continued for a good number of days, as such we dismiss this appeal for want of prosecution[ENTITY] However, we have dealt with all the objections raised regarding questions containing wrong answers, questions themselves are wrong, question being out of syllabus and awarding of grace mark[ENTITY] As such said appeal does not require any further consideration and the same is dismissed[ENTITY] "
13) The judgment and order passed by the Division Bench in the aforesaid special appeals was subject matter of challenge before the Hon'ble Supreme Court by the petitioners of Writ Petition No[ENTITY]28222 (S/S) of 2017 in Civil Appeal No[ENTITY]10876 of 2018, wherein a judgment and order was passed by Hon'ble Supreme Court on 26[ENTITY]10[ENTITY]2018, which is being quoted below:
"Leave granted[ENTITY]
We have heard learned counsel for the parties[ENTITY]
The appellants before us filed a writ petition which was allowed bythe learend Single Judge vide judgment and order dated 06[ENTITY]03[ENTITY]2018[ENTITY]
Feeling aggrieved by the judgment and order passed by the learned Single Judge, the State of U[ENTITY]P[ENTITY] preferred an appeal only in one of the writ petitioners out of a batch of writ petitions[ENTITY]
In the appeal, the State of U[ENTITY]P[ENTITY] did not make the present appellants as respondents although they were vitally affected having succeeded before the learned Single Judge[ENTITY] Despite this, the matter was heard by the Division Bench of the High Court in the absence of the appellants[ENTITY] Vide judgment and order dated 17[ENTITY]04[ENTITY]2018, the order passed by the learned Single Judge was partly set aside[ENTITY]
Since the appellants were vitally affected in the matter, they should have been made parties in the appeal before the Division Bench[ENTITY] In any event, the appellants were entitled to be heard by the Division Bench having succeeded before the learned Single Judge[ENTITY]
Under these circumstances, we set aside the impugned judgment and order passed by the High Court and remand the matter to the Division Bench of the High Court for reconsideration on merits[ENTITY] The appellants will be made party - respondents in the High Court[ENTITY]
Any appointment (s) made will be subject to the outcome of the decision rendered by the Division Bench of the High Court[ENTITY]
The civil appeal stand disposed of[ENTITY]"
14) It is, however, made clear that the civil appeal was filed before the Hon'ble Supreme Court in one of the writ petition out of batch of writ petitions[ENTITY]
15) Hon'ble Supreme Court set aside the judgment and order passed by the Division Bench of this Court in Civil Appeal No[ENTITY]10876 of 2018 and remanded the matter to the Division Bench of the High Court for reconsideration on merits by impleading the respondents-appellants before the Hon'ble Supreme Court as respondents with the further rider that any appointment shall be subject to outcome of the decision rendered by the Division Bench of the High Court and disposed of the appeal[ENTITY]
16) In compliance of the order passed by the Hon'ble Supreme Court, the respondents-appellants were impleaded as respondent Nos[ENTITY]106 to 132 in the appeal and the appeal was heard on merits[ENTITY]
17) Learned Advocate General placed before this Court certain material in the shape of guidelines for conducting TET, 2017 and invited attention of this Court on the relevant portion of the guidelines, which is being quoted below:
Paper I (for classes I to V); No[ENTITY] of MCQs - 150;
Duration of examination: one-and-a-half hours Structure and Content (All Compulsory) (i) Child Development and Pedagogy 30 MCQs 30 Marks (ii) Language I 30 " 30 " (iii) Language II 30 " 30 " (iv) Mathematics 30 " 30 " (v) Environmental Studies 30 " 30 " Nature and standard of questions
While designing and preparing the questions for Paper I, the examining body shall take the following factors into consideration:
- The test items on Child Development and Pedagogy will focus on educational psychology of teaching and learning relevant to the age group of 6-11 years[ENTITY] They will focus on understanding the characteristics and needs of diverse learners, interaction with learners and the attributes and qualities of a good facilitator of learning[ENTITY]
- The Test items for Language I will focus on the proficiencies related to the medium of instruction, (as chosen from list of prescribed language options in the application form)[ENTITY]
- The Language II will be from among the prescribed options other than Language I[ENTITY] A candidate may choose any one language from the available language options and will be required to specify the same in the application form[ENTITY] The test items in Language II will also focus on the elements of language, communication and comprehension abilities[ENTITY]
- The test items in Mathematics and Environmental Studies will focus on the concepts, problem solving abilities and pedagogical understanding of the subjects[ENTITY] In all these subject areas, the test items shall be evenly distributed over different divisions of the syllabus of that subject prescribed for classes I-V by the appropriate Government[ENTITY]
- The questions in the tests for Paper I will be based on the topics of the prescribed syllabus of the State for classes I-V, but their difficulty standard, as well as linkages, could be upto the secondary stage[ENTITY]
Paper II (for classes VI to VIII); No[ENTITY] of MCQs - 150;
Duration of examination : one-and-a-half hours Structure and Content (i)Child Development & Padagogy (compulsory) 30 MCQs 30 Marks (ii) Language I (compulsory) 30 " 30 " (iii) Language II (compulsory) 30 " 30 "
(iv) (a) For Mathematics and Science teacher : Mathematics and Science - 60 MCQs of 1 mark each
(b) For Social studies teacher : Social Studies - 60 MCQs of 1 mark each
(c) for any other teacher - either 4(a) or 4(b) While designing and preparing the questions for Paper II, the examining body shall take the following factors into consideration:
- The test items on Child Development and Pedagogy will focus on educational psychology of teaching and learning, relevant to the age group 11-14 years[ENTITY] They will focus on understanding the characteristics, needs and psychology of diverse learners, interaction with learners and the attributes and qualities of a good facilitator of learning[ENTITY]
- The test items for Language I will focus on the proficiency related to the medium of instruction, as chosen from list of prescribed options in the application form[ENTITY]
- The Language II will be a language other than Language I[ENTITY] The person may choose any one language from among the available options and as in the specified list in the application from and attempt questions in the one indicated by the candidate in the application form by him[ENTITY] The Test items in Language II will also focus on the elements of language, communication and comprehension abilities[ENTITY]
- The test items in Mathematics and Science, and Social Studies will focus on the concepts, problem solving abilities and pedagogical understanding of these subjects[ENTITY] The test items of Mathematics and Science will be of 30 marks each[ENTITY] The test shall be evenly distributed over different divisions of the syllabus of that subject as prescribed for classes VI-VIII by the appropriate government[ENTITY]
- The questions in the tests for Paper II will be based on the topics of the prescribed syllabus of the State for classes VI-VIII but their difficulty standard as well as linkages could be upto the senior secondary stage[ENTITY]
8[ENTITY] The question paper shall be billingual - (i) in language(s) as decided by the appropriate Government; and (ii) English language[ENTITY]
18) In the light of the provisions referred herein above, learned Advocate General produced the syllabus introduced from Class 1st to Class 12th and submitted that the questions of the TET are not out of syllabus[ENTITY] The questions were within the syllabus as prescribed under the guidelines[ENTITY] Reference may be made regarding question Nos[ENTITY]121, 133, 140 and 150, from the syllabus introduced by the NCERT from class 1st to secondary level, which is as under:
"C: [ENTITY]
[ENTITY]
22 [ENTITY]11 [ENTITY]2017 [ENTITY] The Constituent Assembly adopted our National Anthem on:
(1) 20th January, 1950 (2) 24th January, 1950 (3) 21st May, 1949 (4) 13th November, 1949 out of syllabus
2[ENTITY] [ENTITY] [ENTITY] ( 1 5 ) - 1 [ENTITY] - 5 " " " " [ENTITY] - 2 - 6 " " " " [ENTITY] 94-95 The number of permanent members of the UN Security Council is:
(1) 3 (2) 4 (3) 5 (4) 6 out of syllabus 3 [ENTITY] [ENTITY] ( 1 5 ) - [ENTITY] - 5 " " " " [ENTITY] 119-120 - 8 " " " " [ENTITY] 104-105 Fundamental Duties are adopted from the [ACT] of which country?
(1) Germany (2) United Kingdom (3) USA (4) USSR 1, out of syllabus 4, [ENTITY] [ENTITY] ( 1 5 ) - [ENTITY] [ENTITY] - 7 " " " " [ENTITY] 108 -11 172 185 The Head Office of the International Court of Justice is situated in :
(1) Geneva (2) The Hague (3) New York (4) Paris out of syllabus 2, [ENTITY] [ENTITY] ( 1 5 ) - [ENTITY] [ENTITY] - 5 " " " " [ENTITY] 119-120 8 " " " " 105
19) In view of the aforesaid, his submission is that the learned Single Judge holding the question Nos[ENTITY]121, 133, 140 and 150 to be out of syllabus is erroneous in nature and without taking into consideration the material brought before learned Single Judge at the time of submission made in the writ petition[ENTITY]
20) His next submission is that the learned Single Judge has also erred in law in passing the judgment and order holding himself to be expert on the subject matter ignoring the judgment passed by Hon'ble Supreme Court in the case of [ENTITY] and others Vs[ENTITY] State of U[ENTITY]P[ENTITY] and others; 2018 (2) SCC 357[ENTITY]
21) Per contra, Sri [ENTITY], learned Senior Advocate for the respondents submitted that the learned Single Judge has committed no error in law in passing the judgment and order dated 06[ENTITY]03[ENTITY]2018[ENTITY] He further submitted that question Nos[ENTITY]121, 133, 140 and 150 cannot be questioned from the syllabus of Environmental Studies and on the basis of information received from the National Council for Education Research and Training (NCERT), he submitted that question Nos[ENTITY]121, 1331, 140 and 150 may be part of the Political Science, therefore, his submission is that the argument advanced by learned Advocate General is not acceptable on the point addressed by him[ENTITY]
22) Sri [ENTITY], learned Senior Advocate for the respondents further submitted that in accordance with the provisions of [SECTION] of [ACT], the NCTE has laid down minimum qualification for a person to be eligible for appointment as teacher in Class 1st to Class 8th[ENTITY]
23) He further submitted that procedure for selection of Assistant Teachers in primary schools is regulated by the U[ENTITY]P[ENTITY] Basic Education (Teachers) Service Rules, 1981 and vide 20th amendment dated 09[ENTITY]11[ENTITY]2017 in [SECTION] along with TET, Assistant Teachers Recruitment Examination has been added[ENTITY] In support of his submission, he placed reliance upon certain judgments, which are as under:
a) Bhanu Pratap Singh Vs[ENTITY] State of Uttarakhand and others; Special Appeal No[ENTITY]886 of 2019 decided on 27[ENTITY]09[ENTITY]2019[ENTITY]
b) Richal and others Vs[ENTITY] Rajasthan Service Commission and others; (2018) 8 SCC 81[ENTITY]
24) We have considered the submissions advanced by learned counsel for the parties and the record placed along with the appeal, counter affidavit and supplementary counter affidavit in as much as the judgments relied upon by learned counsel for the parties and the material placed by learned Advocate General and Sri [ENTITY], learned Senior Advocate and the guidelines issued by NCERT showing the questions to be of political science[ENTITY]
25) In regard to the submission of learned counsel for the respondents that environmental studies was limited syallabus confined to family and friends, food, shelter, water, travel, things[ENTITY] Questions pertaining to adoption of National Anthem by the [ACT] Assembly, the number of permanent members of UN Security Council, Fundamental duties etc[ENTITY] would not fall in the syllabus of Environmental Studies, we have considered the material and guidelines placed before this Court[ENTITY]
26) On its perusal, it is established that the questions fall in part V pertaining to paper of environmental studies[ENTITY] From perusal of the same, it is also reflected that the test for first paper will be based on topics of the prescribed syllabus for Class 1st to Class 5th, but their difficulty standard and linkages up to secondary stage[ENTITY] On examination of the syllabus produced we found that these questions are of Environmental Studies, thus, the submission advanced by learned counsel for the respondents and the finding returned by learned Single Judge that these questions are out of syllabus are erroneous in nature and are not acceptable in law[ENTITY]
27) On perusal, we find and what clearly comes out is that the prescribed book for the syllabus of "i;kZoj[ENTITY]k v/ u" includes "foKku vkSj lekftd foKku dh fo;kIrh vksSj laca/k" for which the book prescribed is "gekjk ifjos'k"[ENTITY] In case the difficulty level up to the secondary level is seen, then it clearly comes out that answers pertaining to National Anthem, Security Council, International Court of Justice and Fundamental Duties i[ENTITY]e those four questions which were held to be outside the syllabus are all questions for which the difficulty standard and linkages can easily be ascertained and seen up to the secondary stage from the books themselves[ENTITY]
28) Keeping this view point into consideration and in order to have a broader perspective, this Court has gone through the definition of "gekjk ifjos'k" the prescribed book for Class-Vth[ENTITY] As per dictionary meaning the word ifjos'k' translates to "Environment" or "Surroundings" as per Google[ENTITY] The meaning of the word " ifjos'k[ENTITY]k" as per Oxford Hindi-English Dictionary, is " Surrounding; Enclosing"[ENTITY] The New Lexicon Webseter's Dictionary defines Environment as " Surroundings"[ENTITY] Likewise the Illustrated Oxford Dictionary defines the word Environment as " The totality of the physical conditions on the Earth or a part of it"[ENTITY] As per the source-: http: mhrd[ENTITY]gov[ENTITY]in/sites/upload files/mhrd/files/Learning outcomesPdf Pages-88,86,97,98,99, uploaded by NCERT the learning outcomes in Environmental Studies at the primary stage has been introduced for the purpose exposing children to the real situations in their surrounding to help them connect, be aware of, appreciate and be sensitised towards the prevailing environmental issues (natural, physical, social and cultural)[ENTITY] It also indicates that the Environmental Studies not only helps children to get acquainted with their own environment but it also strengthens their bond with it[ENTITY]
29) Further, as the issue of certain questions being out of syllabus has been raised that once the paper was of Environmental Studies, anything not related to the Environment Studies in its strict sense could not have been asked by the paper setter[ENTITY]
30) Here, we have to see that the qualifying examination is being conducted for the Teacher Eligibility Test (TET) i[ENTITY]e for seeing whether the person is qualified to become a teacher and thereafter to face examination for recruitment as Teacher[ENTITY] The instant examination pertains to the syllabus of Class Ist to Vth and children have an active and inquisitive mind and, thus, in our opinion the NCTE as well as the Examination Authority have correctly framed the question having difficulty standard and linkages up to the secondary stage in as much as a child cannot be restricted from asking questions, which may be beyond the syllabus prescribed[ENTITY]
31) The material produced by Sri [ENTITY], learned Senior Advocate in the shape of NCERT guidelines reflects that these questions belong to Political Science is not disputed[ENTITY] It is indicated in the syllabus of Class 1st to Class 5th, and permitted to be considered upon secondary level by adding it in the syllabus with the specific stipulation in the guidelines that the question can be asked from the environmental studies[ENTITY]
32) Upon careful examination of the prescribed books from class 1st to secondary level, it is evident that the questions were asked as per guidelines issued for conducting the TET examination, therefore, we are of the view that learned Single Judge has committed manifest error of law in holding the questions to be out of syllabus[ENTITY]
33) Learned Advocate General assailing the judgment of the learned Single Judge placed heavy reliance upon the judgment of Hon'ble Supreme Court in the case of [ENTITY] (Supra) and submitted that learned Single Judge has committed patent error of law acting himself to be subject expert[ENTITY] It has been also submitted that learned Single Judge did not himself record any independent finding about any fault or block in the questions based on material placed and had proceeded to hold the questions to be incorrect or out of syllabus on the basis of submission advanced by learned Counsel for the petitioners[ENTITY] Relevant portion of the judgment relied upon by learned Advocate General in the case of [ENTITY] (Supra) is being quoted herein below:
"29[ENTITY] In appeal, this Court set aside the decision of the High Court and reiterating the view already expressed by this Court from time to time and allowing the appeal of the CBSE it was held: (SCC p[ENTITY] 526, paras 9-11) "9[ENTITY] We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v[ENTITY] Bihar Public Service Commission has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v[ENTITY] Paritosh Bhupeshkumar Sheth that in the absence of any provision for the re-evaluation of answer books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his marks[ENTITY] The decision in Pramod Kumar Srivastava v[ENTITY] Bihar Public Service Commission was followed by another three-Judge Bench of this Court in Board of Secondary Education v[ENTITY] Pravas Ranjan Panda in which the direction of the High Court for re- evaluation of answer books of all the examinees securing 90% or above marks was held to be unsustainable in law because the regulations of the Board of Secondary Education, Orissa, which conducted the examination, did not make any provision for re- evaluation of answer books in the rules[ENTITY]
10[ENTITY] In the present case, the bye-laws of the [ACT] conducted by the CBSE did not provide for re-examination or re-evaluation of answer sheets[ENTITY] Hence, the appellants could not have allowed such re-examination or re-evaluation on the representation of Respondent 1 and accordingly rejected the representation of Respondent 1 for re-examination/re-evaluation of her answer sheets
11[ENTITY] 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 [SECTION] of the [ACT] as these are purely academic matters[ENTITY] "
30[ENTITY] The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions[ENTITY] They are:
30[ENTITY]1[ENTITY] If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30[ENTITY]2[ENTITY] If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;
30[ENTITY]3[ENTITY] The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics;
30[ENTITY]4[ENTITY] The Court should presume the correctness of the key answers and proceed on that assumption; and 30[ENTITY]5[ENTITY] In the event of a doubt, the benefit should go to the examination authority rather than to the candidate[ENTITY] "
34) On perusal of the paragraphs referred herein above, it is clear that if a statute, rule or regulation governing the examination permits the re-evaluation of an answer sheet or scrutiny of answer sheet as a matter of right, then the authority conducting the examination may permit it, if statute, rule or regulation governing the examination does not permit re-evaluation or scrutiny of an answer sheet, then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalization and only in rare and exceptional cases that material error has been committed[ENTITY]
35) The Court should not at all re-evaluate or scrutinize the answer sheets of the candidates it has no exercise in the matter and academic matter are best left open to academics[ENTITY] The Court should presume the correctness of key answers and proceed on that assumption[ENTITY] In the event of a doubt, the benefit should go to the examination authority rather than to the candidate[ENTITY]
36) It has further been reflected that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet[ENTITY] Only because some candidates are disappointed or dis-satisfied or perceived, some injustice having been caused to them, the entire examination process does not deserve to be derailed[ENTITY] It has also been recorded that inference by the Courts in the result of examination, the examination exercise concludes with an air of uncertainty[ENTITY]
37) Once a Teacher is recruited for the purpose of teaching, it is expected that he would be having a wider perspective so far as the subject being taught is concerned and obviously the teacher cannot be allowed to put down or restrict the questioning of a child, which is beyond syllabus[ENTITY]
38) Sri [ENTITY], learned Senior Advocate for the respondents submitted that primafacie learned Single Judge found that there are discrepancies in evaluation of answer sheets and there are two or three answers of the correct answers[ENTITY] In support of submission advanced and to justify the order passed by learned Single Judge, he placed reliance upon following judgments:
a) Bhanu Pratap Singh Vs[ENTITY] State of Uttarakhand and others (Supra):
"9[ENTITY] In an intra-court appeal, the Division Bench exercises the very same jurisdiction which the learned Single Judge exercises under [SECTION] of the [ACT][ENTITY] As the learned Single Judge is not a court subordinate, interference by a Division Bench, in an intra-court appeal, would be justified only if the order under appeal suffers from a patent illegality[ENTITY] Even if two views are possible, and the view taken by the learned Single Judge is a possible view, the Division Bench would still not intervene, even if it is satisfied that the other view, canvassed before it by the appellant, is more attractive[ENTITY] It is only if the view taken by the learned Single Judge is not even a possible view, or it suffers from a patent illegality, would interference be justified[ENTITY] It is evident from a bare reading of the Writ affidavit that the order of regularization dated 31[ENTITY]05[ENTITY]2012 has been subjected to challenge after more than seven years in the year 2019[ENTITY] It cannot, therefore, be said that the learned Single Judge has committed a patent illegality in non-suiting the appellant-writ petitioner on the ground of delay and laches[ENTITY]"
b) Richal and others Vs[ENTITY] Rajasthan Service Commission and others (Supra):
"20[ENTITY]Learned counsel for the appellants have also pointed out several other questions in paper No[ENTITY]1 which according to the learned counsel for the appellants have not been correctly answered by the Expert Committee[ENTITY] We have considered few more questions as pointed out and perused the answers given by the Expert Committee and we are of the view that no error can be found with the answers of the Expert Committee with regard to three more questions which have been pointed out before us[ENTITY] The Expert Committee, constituted to validation of answer key, has gone through every objection raised by the appellants and has satisfactorily answered the same[ENTITY] The Commission has also accepted the Report of the Expert Committee and has proceeded to revised the result of 311 appellants before us[ENTITY] We, thus, are of the view that Report of the Expert Committee which has been accepted by the Commission need to be implemented[ENTITY]
21[ENTITY] One of the submissions raised by the appellants is that marks of deleted questions ought not to have been redistributed in other questions[ENTITY] It is submitted that either all the candidates should have been given equal marks for all the deleted questions or marks ought to have been given only to those candidates who attempted those questions[ENTITY]
22[ENTITY] The questions having been deleted from the answers, the question paper has to be treated as containing the question less the deleted questions[ENTITY] Redistribution of marks with regard to deleted questions cannot be said to be arbitrary or irrational[ENTITY] The Commission has adopted a uniform method to deal with all the candidates looking to the number of the candidates[ENTITY] We are of the view that all the candidates have been benefited by the redistributed of marks in accordance with the number of correct answers which have been given by them[ENTITY] We, thus, do not find any fault with redistribution of marks of the deleted marks[ENTITY] The High Court has rightly approved the said methodology[ENTITY] "
39) Earlier Division Bench of this Court vide order dated 03[ENTITY]04[ENTITY]2018 sent 16 disputed questions for opinion of respective subject experts on the basis of consensus arrived at amongst all learned counsel for the contesting parties[ENTITY] The questions sent to the subject experts are being reproduced below:
"PART - (I) CHILD DEVELOPMENT AND PEDAGOGY (1[ENTITY]) Q[ENTITY] No[ENTITY] 16 (Paper Series-C) Who described different types of personality based on glands?
(I) [ENTITY] (II) [ENTITY] (III) [ENTITY] (IV) [ENTITY] (2[ENTITY]) Q[ENTITY]No[ENTITY]18 (Paper Series-C) The tendency of feeling of revolt is concerned with which of the following ages?
(I) Childhood (II) Infancy (III) Early Adolscence (IV) Middle Adolscence (3[ENTITY]) Q[ENTITY]No[ENTITY]26 (Paper Series-C) Brain storming model of teaching is used to improve which of the following?
(I) Understanding (II) Application (III) Creativity (IV) Problem solving (4[ENTITY]) Q[ENTITY]No[ENTITY]1 (Paper Series-C)[ENTITY]
Which of the following is not the cause of plateau of learning?
(I) Limit of Motivation (II) Non-Cooperation of School (III) Physiological Limit (IV) Limit of knowledge (5[ENTITY]) Q[ENTITY]No[ENTITY]5 (Paper Series-C) The Factors affecting the social development of children are?
(I) Economic elements (II) Social Environment elements (III) Physical elements (IV) Hereditary elements PART- (II) LANGUAGE - I HINDI (1[ENTITY]) Q[ENTITY]No[ENTITY] 32 (Paper Series-C) fgUnh Hkk"kk esa fdruh cksfy;k gSa\ (I) 15 (II) 25 (III) 18 (IV) 22 (2[ENTITY]) Q[ENTITY]No[ENTITY]39 (Paper Series-C) fuEufyf[kr esa ls dkSu lh O;kdj[ENTITY]k vkSj orZuh; ls 'kq} Hkk"kk dgykrh gS\ (I) lkfgfR;d Hkk"kk (II) izkUty Hkk"kk (III) O;kdjf[ENTITY]kd Hkk"kk (IV) ekud Hkk"kk PART - (III) LANGUAGE - II, SANSKRIT (1[ENTITY]) Q[ENTITY]No[ENTITY] 61 (Paper Series-C) fir` 'kCn dk lEcks/ku ,d opu :i gksxk\ (I) gs fir` (II) gs firk (III) gs fir% (IV) gs fi=% (2[ENTITY]) Q[ENTITY]No[ENTITY] 80 (Paper Series-C) nk /kkrq fdl x[ENTITY]k dh gS\ (I) Hokfnx[ENTITY]k (II) vnkfnx[ENTITY]k (III) rukfnx[ENTITY]k (IV) tqgksO;kfnx[ENTITY]k (3[ENTITY]) Q[ENTITY]No[ENTITY]75 (Paper Series-C) ^f'k'kq% eksndkO; jksfnr^ mnkgj[ENTITY]k gS\ (I) LizgsjhfIlr% dk (II) rknF;sZ prqFkhZ okP; dk (III) :P;FkkZuka izh;ek[ENTITY]k% dk (IV) fgr;ksxss p dk (4[ENTITY]) Q[ENTITY]No[ENTITY]79 (Paper Series-C) {k feydj cuk gSA (I) d~ vkSj "k~ ls (II) d~ vkSj N~ ls (III) p~ vkSj N~ ls (IV) p~ vkSj 'k~ ls (5[ENTITY]) [ENTITY] (Paper Series-C) u;ue~ esa iz;qDr izd`fr ,oa izR gSA (I) ue~ $ Y;wV~ (II) uh $ Y;wV~ (III) us $ Y;wV~ (IV) u;u $ Y;wV~ PART - (V) ENVIRONMENTAL STUDIES (1[ENTITY]) Q[ENTITY]No[ENTITY] 123 (Paper Series-C) Which of the following ultra violet rays is more dangerous?
(I) UV-A (II) UV-B (III) UV-C (IV) None of the above (2[ENTITY]) Q[ENTITY]No[ENTITY]126 (Paper Series-C) WWF stands for?
(I) World Wide Fund (II) World War Fund (III) World Wildlife Fund (IV) World Watch Fund (3[ENTITY]) Q[ENTITY]No[ENTITY]131 (Paper Series-C) In a Food chain of Grassland Ecosystem, the top consumers are?
(I) Herbivorous (II) Carnivorous (III) Bacteria (IV) Either Carnivore or Herbivorous (4[ENTITY]) Q[ENTITY]No[ENTITY]146 (Paper Series-C) During the light phase of Photosynthesis, , is oxidized and is reduced? (I) Water, NADP (II) NADPH2, CO2 (III) CO2, Water (IV) CO2, NADPH2"
40) A report of the subject experts was placed before the earlier Division Bench, wherein vide order dated 11[ENTITY]04[ENTITY]2018, this Court has examined the report in regard to 16 questions referred to the subject experts[ENTITY] Out of 16 questions, 3 questions were having wrong answers, as per key answers indicated by the regulatory authority and on the assurance of learned Advocate General, grace marks of question Nos[ENTITY]16, 18 and 131 were given on the agreement with the learned counsel for the parties[ENTITY]
41) In regard to the questions, which were directed to be examined by subject experts under the order of this Court after the report submitted is on record[ENTITY] We have perused the same, which reflects that only three questions out of total 150 questions were found doubtful[ENTITY] Consequently, the method adopted by the examination regulatory authority by granting three marks to all the candidates would be fair and should not cause prejudice to any candidate, as the framing of doubtful questions cannot be attributed to the candidates[ENTITY] Moreover, the TET examination being a qualifying examination, in case more number of candidates qualify, the same would certainly result in increasing the level of competitiveness rom amongst the candidates appearing for the examination which would ultimately result in the best amongst the best being selected in order to teach the young and impressionable minds of children[ENTITY]
42) We also perused the report submitted by the subject experts on 11[ENTITY]04[ENTITY]2018, which reveals that three questions were found to be doubtful having different answers, therefore, we are with the agreement of the report submitted by the subject experts being based on concensus of the learned advocates appearing for the parties[ENTITY]
43) In view of the above, the special appeal is liable to be allowed[ENTITY]
44) Accordingly, the judgment and order passed by learned Single Judge dated 06[ENTITY]03[ENTITY]2018 is hereby set aside[ENTITY] The special appeal succeeds and is allowed[ENTITY]
45) However, the Examination Regulatory Authority is directed to treat four questions to be within the syllabus and award marks accordingly[ENTITY]
46) It is further directed to award marks against 13 questions treating to have correct answers and grace marks for three questions containing incorrect answers in the answer key[ENTITY]
47) Accordingly, the Secretary, Examination Regulatory Authority is directed to declare the result within a period of two months from the date of production of a certified copy of this order and to conduct the Assistant Teachers Recruitment Examination within a period of two months, thereafter[ENTITY]
[[ENTITY], J[ENTITY]] [[ENTITY], J[ENTITY]] Order Date :- 20[ENTITY]11[ENTITY]2019 [ENTITY] Gautam