CWP No. 14553 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 14553 of 2010 DATE OF DECISION: September 13, 2010 1. Civil Writ Petition No.14553 of 2010 Surender Singh .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 2. Civil Writ Petition No.14581 of 2010 Manu Goel .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . 3. Civil Writ Petition No.14703 of 2010 Vikas Kaushal & Others .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) CWP No. 14553 of 2010 2 . . . 4. Civil Writ Petition No.14917 of 2010 Rashmi .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 5. Civil Writ Petition No.14945 of 2010 Deepak Mittal .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 6. Civil Writ Petition No.15220 of 2010 Neeraj Kumar .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . CWP No. 14553 of 2010 3 7. Civil Writ Petition No.15258 of 2010 Rohit Kaushik .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . 8. Civil Writ Petition No.15361 of 2010 Kamaldeep .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 9. Civil Writ Petition No.15074 of 2010 Naveen Kumar .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . CWP No. 14553 of 2010 4 10. Civil Writ Petition No.15502 of 2010 Kartar Singh .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 11. Civil Writ Petition No.15506 of 2010 Ajay Singh .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 12. Civil Writ Petition No.15567 of 2010 Naveen Singla .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . CWP No. 14553 of 2010 5 13. Civil Writ Petition No.15590 of 2010 Amarpal Singh .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 14. Civil Writ Petition No.15645 of 2010 Vishal Mehta & Others .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . 15. Civil Writ Petition No.15655 of 2010 Shivani .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . CWP No. 14553 of 2010 6 16. Civil Writ Petition No.15677 of 2010 Jaswinder Singh .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 17. Civil Writ Petition No.15698 of 2010 Sagar Shankar .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 18. Civil Writ Petition No.15712 of 2010 Deepak Jindal .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . CWP No. 14553 of 2010 7 19. Civil Writ Petition No.15723 of 2010 Suraj Singh Chohan .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 20. Civil Writ Petition No.15734 of 2010 Inderpreet Kaur .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 21. Civil Writ Petition No.15771 of 2010 Rakesh Kumar .....PETITIONER(S) VERSUS Haryana Public Service Commission & Others .....RESPONDENT(S) . . . CWP No. 14553 of 2010 8 22. Civil Writ Petition No.15794 of 2010 Vikas Chaudhry .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 23. Civil Writ Petition No.15826 of 2010 Avnika Gupta .....PETITIONER(S) VERSUS State of Haryana & Another .....RESPONDENT(S) . . . 24. Civil Writ Petition No.15906 of 2010 Sandeep Kumar .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . CWP No. 14553 of 2010 9 25. Civil Writ Petition No.15986 of 2010 Dinesh Kumar .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 26. Civil Writ Petition No.16016 of 2010 Madhu Jindal .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 27. Civil Writ Petition No.16070 of 2010 Yahswinder Paul Singh .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . CWP No. 14553 of 2010 10 28. Civil Writ Petition No.16125 of 2010 Ravish Kaushik .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 29. Civil Writ Petition No.16127 of 2010 Sunish Aggarwal .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . 30. Civil Writ Petition No.16135 of 2010 Sunny Sharma .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . CWP No. 14553 of 2010 11 31. Civil Writ Petition No.16326 of 2010 Shalini .....PETITIONER(S) VERSUS Haryana Public Service Commission & Others .....RESPONDENT(S) . . . 32. Civil Writ Petition No.16355 of 2010 Sunjeet Singh Bhadana .....PETITIONER(S) VERSUS Haryana Public Service Commission & Another .....RESPONDENT(S) . . . CORAM:HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - S/shri Vishal Aggarwal, Narender Sura, A.K. Sharma, Kapil Aggarwal, Harsh Bunger, Jagbir Malik, R.N. Raina with Daman Dhir, Sachin Sharma, H.P.S. Ishar, Amit Rishi, Vikas Gupta, Amit Singla, Sumeet Sheokand, B.S. Makar, Parminder Singh Grewal, Rahul Chhatwal, Advocates, for the petitioner(s). Ms. Manu Goel, petitioner in person (CWP No.14581 of 2010). Mr. Sukant Gupta, Additional Advocate General, Haryana. Mr. H.N. Mehtani, Advocate, for Haryana Public Service Commission. Mr. Amol Rattan Singh, Advocate, for Punjab & Haryana High Court. CWP No. 14553 of 2010 12 AJAI LAMBA, J. (ORAL) 1. This bunch of petitions has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing the result declared by the respondents after conducting preliminary examination for selection in Haryana Civil Services (Judicial Branch), 2010. It has also been prayed that a writ in the nature of mandamus be issued directing the respondents to correct the answers in the 'Answer Key' to the questions given out in the question paper. 2. In the writ petitions, the petitioners have specifically pleaded that the answers provided in the 'Answer Key' to certain questions are wrongly given, therefore, the merit of the candidates has not been correctly determined. Different questions, in that context, have been referred to in different writ petitions. Since common questions of facts and law have been raised in context of same examination for determining a merit list of candidates, all the cases are being taken up together. 3. For reference to record, CWP No. 14553 of 2010 entitled Surender Singh Vs. Haryana Public Service Commission and another, in which counter affidavit on behalf of respondent no. 2 i.e. Punjab and Haryana High Court (for short the 'High Court') has been filed, is being taken up. 4. It seems that Haryana Public Service Commission advertised 83 (plus 30 anticipated/unforeseen) posts of Haryana Civil Services (Judicial Branch) vide advertisement no. 14 of 2010 to be conducted in accordance with the provisions contained in the Punjab Civil Services (Judicial Branch) Rules, 1951 as amended from time to time. 5. The issue raised before me is limited to the correctness of the CWP No. 14553 of 2010 13 answers provided in the 'Answer Key' and, therefore, only the relevant portion from the advertisement that deals with the conduct of examination is reproduced and is being referred to:- “13. Competitive Examination: The selection of suitable candidates for appointment in HCS (Judicial Branch) will be made by holding an examination. The examination shall be conducted in three stages namely. (i)Preliminary Examination, (ii)Main Examination, (iii)Viva-Voce. 14. Syllabus for Preliminary Examination: The Preliminary Examination shall be of objective type with multiple-choice (which can be scrutinized by Computer) as distinguished from the written examination which shall be subjective/narrative type. The question paper for Preliminary Examination shall be of two hours duration. It shall consist of 125 questions and each question shall carry 04 marks and for every wrong answer one mark shall be deducted. The objective type multiple-choice question for the Preliminary Examination shall be from the syllabus for the Main Examination. The candidate shall be expected to have a general and basic over view of the main subjects and also the ability to answer questions on current events of national and international importance, Indian legal and constitutional history and governance. The candidate shall also be tested for his analytical skills and aptitude. The standard of the question paper CWP No. 14553 of 2010 14 shall be of Law Graduate level. The object of the Preliminary Examination is to short list candidates for the Main Examination. There shall be no minimum pass marks in the Preliminary Examination. The marks obtained in the Preliminary Examination shall not be counted towards final result. Candidates equal to 10 times the number of vacancies advertised, selected in order of their merit in the respective categories shall become eligible to sit in the Main Examination. However, this number shall be subject to variation. If two or more candidates at the last number (the number at the end) get the equal marks, then all of them shall be considered eligible to sit for the Main Examination, warranting the corresponding increase in the stipulated ratio. A candidate who qualifies for the Main Examination will have to apply again on separate application form for Main Examination. The application form can be down loaded from the website of State Govt./Commission. Candidates thrice the number of advertised posts in order of merit of Main Examination will be called for Viva-Voce. Note:- (i) The Schedule of examinations shall be intimated to the candidates in due course while sending the admit cards to them. (ii) Details of the syllabus for Main Examination and other conditions are contained in the information sheet to be supplied with the application forms (OCR Sheet).” 6. In accordance with the procedure provided, preliminary examination was conducted on 11.07.2010. 7. The writ petitions in the bunch have only given sketchy facts, therefore, the relevant facts have been taken from the learned counsel CWP No. 14553 of 2010 15 appearing for the High Court. 8. It has been brought out by learned counsel for the High Court that so as to maintain secrecy, 4 question booklets were given to different batch of candidates viz. 'booklet A', 'booklet B', 'booklet C' and 'booklet D'. The questions contained in the booklets were the same, however, their sequence has been changed so as to conduct the examination in a fair manner. 9. Complete list of candidates alongwith their marks obtained by them in preliminary examination was published. Candidates equal to 10 times the number of vacancies advertised, selected in order of their merit in the respective categories who are eligible to sit in the main examination, has also been published. The petitioners are persons who do not fall within the category of persons who have been invited to take the main examination. 10. Learned counsel for the petitioners in essence have argued that the 'Answer Key' provided by the respondents reflects wrong answers and, therefore, the merit as adjudged by the respondents has not been judged correctly causing manifest injustice to the petitioners. Learned counsel for the petitioners in various petitions have drawn the attention of the Court towards 11 questions, the answers given to the said questions in the 'Answer Key' as also the reasons/basis of saying that the answers reflected in the 'Answer Key' are wrong. 11. Learned counsel for the respondent-High Court contends that there is a clerical error in the 'Answer Key' given for question at Sr. No. 99 in 'Question Booklet A' and the answers to the other questions, as provided in the 'Answer Key', are correctly given. 12. Learned counsel states that in view of the fact that answer CWP No. 14553 of 2010 16 provided in the'Answer Key' to question no. 99 is wrongly indicated, all the question papers would be rechecked, and subjected to the redrafted 'Answer Key'. 13. Learned counsel for the respondents contend that the change in'Answer Key' in answer to question no. 99 itself would change the comparative merit. While the last person selected had 364 marks, on re- evaluation/rechecking, after substituting the correct answer in the'Answer Key', the merit might go higher thereby including more candidates in the scope for consideration for inviting them for the main examination. Some candidates would be ousted on account of the changed merit. Question no. 99 from question 'Booklet A' reads as under:- “99. Admissibility of electronic record has been prescribed under (a) section 64 of Evidence Act (b) section 65 of Evidence Act (c ) section 65B of Evidence Act (d) section 65A of Evidence Act 14. As per the 'Answer Key', the answer given is at 'b'. It, however, transpires that correct answer as per the Evidence Act would be 'c'. 15. Learned counsel for the respondent-High Court has further contended that the candidates have been subjected to negative marking. For every question wrongly answered, 1 mark is deducted. However, for every question correctly answered, 4 marks have been awarded. 16. Learned counsel for the High Court further states that the main examination would be scheduled some time in 1st week of October. 17. Learned counsel appearing for the petitioners have vehemently CWP No. 14553 of 2010 17 argued that some other questions which are wrongly phrased, could not have been included in an objective type question paper. In some questions, two options provided would constitute correct answers and, therefore, only one answer given in the'Answer Key' would not reflect the correct position. If only one answer in such circumstances is considered as the correct answer, it would not correctly assess the merit of the candidate in question. The result would be materially affected. 18. In the context of certain questions, learned counsel appearing for the petitioners have pointed out that none of the answers suggested in the question paper indicates correct answer. Learned counsel contend that in some of the cases, the answer given reflects wrong answer. The answer that is suggested by learned counsel for the petitioner, in such circumstances, is based on established source. 19. In the above context, learned counsel for the petitioners have addressed arguments in regard to specific questions and answers. Learned counsel for the petitioners have drawn the attention of the Court towards the following questions from Question 'Booklet A':- Question No. 1:- 1. The meaning of “Audi adteram Partem' is (a) Rights are associated with the duties (b) Everybody has a right to defend himself c) Everybody should be given a reasonable opportunity to defend himself (d) none of the above 20. Learned counsel for the petitioners contend that the correct answer, in the context of the question, would be 'd' in view of the dictionary CWP No. 14553 of 2010 18 meaning of the maxim. Learned counsel contend that since meaning of Audi alteram Partem is sought in the question paper, none of the options a, b or c gives out the correct meaning. In such circumstances, the answer given in the 'Answer Key' i.e. 'c' is the incorrect answer. The correct answer to the effect that "no man should be condemn unheard" has not been provided anywhere in the question paper. Question No. 30:- “The right to Constitutional remedies in India is available to (a) Citizens of India only (b) All persons, in case of infringement of any Fundamental Right (c ) All people, for enforcing any of the fundamental Rights, conferred on them (d) An aggrieved individual alone” 21. Learned counsel for the petitioners contend that although the'Answer Key' provides the correct answer as 'c', however, the correct answer would be 'b' in so much as even a juristic person would have the right to constitutional remedies in India. “All persons” would include an individual and a juristic person. Learned counsel further contend that the Hon'ble Supreme Court of India has delivered a judgment specifically on the issue and, therefore, the respondents ought to have considered 'b' as the correct answer, or at best 'b' as well as 'c' as the correct answers. Question No. 36:- “Locus Standi means (a) one's personal interest (b) right to sue CWP No. 14553 of 2010 19 (c ) right to be heard (d) right to intervene” 22. Learned counsel for the petitioners contend that in the context of question no. 36, correct answer to the question in the'Answer Key' has been given as 'd'. While some of the petitioners contend that the correct answer is reflected in 'c' as per law Lexicon, however, some of the petitioners have addressed arguments to say that 'b' would be the correct answer as per its dictionary meaning. 23. Learned counsel contend that in such cases wherein more than one answer is possible, it becomes a subjective type of question and not objective type and, therefore, the matter needs to be addressed in that light. The respondents, under the circumstances, should either ignore the question, or accept both the answers to be correct. Question No. 41:- “41. Which of the following statements is/are correct: 1. A claim for damages arising out of breach of conduct is not debt. 2. A person who enters into a contract with Government does not necessarily thereby undertake any public duty. (a) 1 only (b) 2 only (c ) both 1 and 2 (d) Neither 1 nor 2” 24. Learned counsel for the petitioners contend that in case of the above reproduced question, 'c' would be the correct answer. 'Answer Key', however, provides 'b' as the correct answer. Question No. 44 CWP No. 14553 of 2010 20 “44. Use of violence by a member of an assembly of five or more persons in furtherance of common object will constitute : (a) affray (b) assault (c ) rioting (d) unlawful assembly” 25. As per the 'Answer Key', the correct answer has been indicated as 'd' whereas in the contention of the learned counsel for the petitioners, the correct answer is contained in 'c'. 26. Learned counsel for the petitioners contend that the provisions of Section 146 IPC inhere “use of violence” and, therefore, there can be no second opinion in regard to the correct answer in the context of question no. 44. 27. Learned counsel for the respondents, however, have argued that the correct answer is contained in 'd' on the basis of provisions of Section 141 IPC........Fourth and Fifth.... Learned counsel for the respondents contend that rioting would be a subsequent consequence and not initiation of the incident and, therefore, the answer given in the'Answer Key' is justified. 28. Learned counsel for the petitioners contend that if both the answers could be correct, either benefit should be given for answer recorded by the candidates as 'c' or 'd', or the question be disregarded. Question No. 48 “48. A servant collected money from the debtor of his master as authorised by him. The servant retained the money in his hands because it was due to him as wages. He commits: (a) criminal breach of trust (b) theft CWP No. 14553 of 2010 21 (c ) no offence (d) criminal misappropriation” 29. Learned counsel for the petitioners contend that the correct answer would be 'c'. The'Answer Key', however, provides the answer as 'a'. Learned counsel for the petitioners contend that the answer to the question is contained in Section 217 of Indian Contract Act, which reads as under:- “217. Agent's right of retainer out of sums received on principal's account.-- An agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as agent. Question No. 62:- “62. Consider the following statements about the Queen's Baton Relay and indicate the correct ones: 1. The helix shape of the Baton for the 2010 Commonwealth Games, created out of aluminiun, is coated with a graded and layered soil pattern in black, yellow and red to represent the diversity of Commonwealth nations. 2. This relay traditionally begins with a commencement ceremony at Buckingham Palace, London, during which, the Queen entrusts the Baton containing her message to the athletes to the first honorary relay runner. 3. The Relay for the 1998 Games in Kuala Lumpur, Malaysia was the first to travel to other nations of the Commonwealth. (a) 1, 2 and 3 (b) 2 and 3 only (c ) 2 only (d) 1 and 3 only” CWP No. 14553 of 2010 22 30. Learned counsel for the petitioners contend that the correct answer would be 'a', however, the key indicates the correct answer to be 'b'. Learned counsel for the petitioner has produced a document sourced from the internet to say that 'a' would be the correct answer while learned counsel for the respondents-High Court has drawn the attention of the Court towards a document also sourced from the internet to say that the correct answer would be 'b' as supplied in the'Answer Key'. Question No. 90:- “Compounding of offence under Section 320 of Cr.P.C. Results in (a) acquittal of the accused under all circumstances (b) acquittal of the accused only where the charge has already been framed (c ) discharge of the accused where the charge has not yet been framed (d) either (b) or (c )” 31. Learned counsel for the petitioners contend that the correct answer would be 'd'. The'Answer Key', however, provides the answer as 'a'. Learned counsel contend that in case where charge has not been framed, a person can only be discharged, and not acquitted. In such circumstances, in terms of Sub section 8 to Section 320, the answer would be 'b' and as given out above, the answer could also be 'c'. Since all the above depict correct answer, the respondents need to address the issue accordingly so as to ensure that a correct answer does not go unrewarded. Question No. 93:- “93. Hearing on sentence by a Magistrate is required, on conviction CWP No. 14553 of 2010 23 (a) in a summons trial case under Section 255 (2) of Cr.P.C. (b) in a warrant trial case under Section 248 (2) of Cr.P.C. (c ) both (a) & (b) (d) neither (a) nor (b)” 32. As per learned counsel for the petitioners, the correct answer is contained in 'b' in view of the language of the provision [Section 248 (2) of the Cr.P.C.], while as per the'Answer Key', the correct answer has been indicated at 'c'. It has been contended by learned counsel for the High Court that considering the rights of the accused, before awarding sentence, an accused is required to be heard and, therefore, the answer indicated in the 'c' is the correct answer. Question No. 113:- “113. Which school of law does not recognise the talaq pronounced under compulsion or undue influence or by (a) Shia (b) Malikis (c ) Shafiis (d) All the above” 33. Learned counsel for the petitioners contend that the correct answer would be 'a' while the key provides the answer as 'd'. Learned counsel for the petitioners contend that the correct answer as pleaded above, is established from Chapter 9 that deals with divorce (talaq) Note 13 at page no. 118 of Text Book of Mohammedan Law by Aqil Ahmad, seventeenth Edition, Re Print 1997. The relevant portion from the portion pointed out by learned counsel for the petitioner reads as under:- CWP No. 14553 of 2010 24 "13. Distinction between Sunni and Shia Laws of Talaq.--- xx xx xx xx The following differences may be marked between the two : xxx xxx xxx xxx xxx xxx 3. Under Shia Law, intention is a necessary ingredient which is dispensed with under Sunni Law. Hence a talaq pronounced under intoxication or compulsion, or in jest is invalid under Shia law because under such circumstances man does not do what he intends, but in Sunni Law, even such talaq is valid and effective. 34. Learned counsel for the petitioners further contend that as per established law, Malikis and Shafiis are sub schools of Sunni Sect." 35. Learned counsel for the respondent contends that the correct answer at 'b' has been given in the 'Answer Key' as per the book Muslim Law in India authored by Manzar Saeed, Chapter 10, Note 31 wherein, it has been provided that the Shia law, does not