h^ .^: r\/^^'^^)-' - s^'3nr\ ^..^ ^ \ ^^ ^' l^ ^ .,.,,:.^^-" ^^"' (^'f?fs-Q 7 ^-— IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fS) No. GS1^ / 2008 PETITIONER RESPONDENTS 1, l'^-\^ L^:"'<^.^ Rajesh Singh Arya, aged about 33 years, S/o N.R. Arya, R/o Indersen Nagar, 27 Kholi, Bilaspur VERSUS The State of Chhattisgarh, through Secretary its Secretary Home Department, D.K. S. Bhawan, Raipur Chhattisgarh Public Service Commission, through Secretary, Shanker Nagar, Raipur Examination Controller, Chhattisgarh Public Service Commission, through Secretary, Shanker Nagar, Raipur WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA /; \d HIGH COURT OF CHHATTISGARH : BILASPUR WRLT PETITION (S) N0.6383 OF 2008 PETITIONER Rajesh Singh Arya RESPQNDENTS Versus The State of Chhattisgarh & Others And W.P.(S) No.6675 of2008 and W.P.(S) Nos.288 & 944 of 2009 Post for pronouncement of the orders on the 3 day of May, 2010 Sd/- Satish K. Agnihotri Judge pss /£?^ § ^?;%& i ^ J. f\ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.6383 OF 2008 PETITIONER Rajesh Singh Arya Versus RESPONDENTS The State of Chhattisgarh & Others And W.P.(S) No.6675 of 2008 and W.P.(S) Nos.288 & 944 of 2009 (Writ petitions underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Ms. Sharmila Singhai, Shri Parag Kotecha, Shri R. Pradhan, Shri Dharmesh Shrivastava, Shri Punit Ruprel and Ms Seema Saggar Singh, Advocates for the respective petitioners. Shri V.V.S. Murthy, Dy. Advocate General for the State. Shri Abhishek Sinha and Shri Ghanshyam Patel, counsel for the Public Service Commission. ORDER (Pronounced on this _3^°day of May, 2010) 1. The Writ Petition (S) Nos. 6383 & 6675 of 2008 and W.P. (S) Nos. 288 & 944 of 2009 involve common facts and common question of law, thus, the said petitions are being considered and disposed of together. 2. W.P. (S) No.6383 of 2008 :- By this petition, the petitioner seeks a direction to include the name of the petitioner in the select list of written test conducted by the Chhattisgarh Public Service Commission (for short "the PSC") for selection and appointment on the post of Assistant District Public Prosecution Officer (for short "ADPO"), further the PSC may be directed to permit the petitioner to participate in the inten/iew and the answers in the amended model answer in respect of questions No.30, 32 & 64 from question paper !j ^s^.. >'\ .^ \! 6. set-A may be directed to be corrected by the PSC as per the first model answer sheet. W.P. (S) No.6675 of 2008 :- By this petition, the petitioner seeks quashment of the selection list dated 21-10-2008 (Annexure - P/1) and further prays that the PSC may be directed to prepare fresh selectionlist on the basis of correct answers based on facts. W.P. (Sl No.288 of 2009 :-By this petition, the petitioner seeks quashment of the entire selection process including the written test dated 7-3-2008 and to conduct fresh selection process. W.P. (Sl No.944 of 2009 :- By this petition, the petitioner seeks quashment of the selection list dated 21-10-2008 (Annexure - P/1) and further prays that the PSC may be directed to prepare fresh selection list on the basis of correct answers based on facts. In W.P. (S) No.6383 of 2008, question No.3.0 (set-A) was deleted. Question No.32 reads as under : "32. 'A' finds a ring lying on the highway, not in the possession of any person 'A' by taking it commits: (A) criminal misappropriation (B) no offence (C) theft (D) criminal breach of trust" The answer to the question No.32 (set-A) as per the amended model answer sheet is 'B'. Question No.32 in set-A is same to that of question No.2 in set-D. Question No.64 in set-A reads as under: "Which of the following is not an example of public document ? (A) Letters between authorities (B) Electoral list (C) Insurance policy (D) Order sheet in a case ^ ^- 8. The answer to the question No.64 (set-A) as per the amended model answer sheet is A'. According to the learned counsel the correct answer is 'C' not'A'. Question No.64 in set-A is same to that of question No.34 in set-D. In W.P. (S) No.6675 of 2008, the petitioner has not pointed out any specific question wherein some mistake was noticed except general statement that the PSC has changed 9 answers instead of 6 answers and 1 question was deleted. In W.P. (S) No.288 of 2009 it is submitted by the petitioner that question No.8 in set-D is not correct. Question No.9 is also not correct, as the answer in amended mode answer sheet is (A' i.e. Supreme Court. According to the petitioner, the Supreme Court cannot be treated as the last criminal court. The last criminal court is Court of Sessions. Correct answer to question No.20 is 'A' whereas in the answer sheets the answer has been mentioned as 'D'. Question No.22 is not a legal question, but it is a general question. Question No.33 is doubtful. With regard to question No.34 in the amended model answer sheet the answer has been shown as 'A', whereas the correct answer is (C' i.e. Insurance Policy. Question No.52 the correct is answer is 'A', but in the model answer sheets it has been shown as 'D'. Questions No.58 & 79 is the question of general knowledge, not of law. According to the petitioner, with regard to question No.90 the correct answer is 'B', but in the amended model answer sheet it has been shown as 'C'. Questions No.4, 26, 27, 28, 31, 72, 73, 76 and 100 are general questions with regard to leading cases, which may be treated as out of syllabus. In W.P. (S) No.944 of 2009, the petitioner has not pointed out any specific question wherein some mistake was noticed except general v statement that the PSC committed certain irregularities in conducting the examination. 10. The facts, in nutshell, for adjudication of these case, are that by publication of the advertisement dated 12-3-2008 (Annexure - P/1 to W.P.(S) No.6383 of 2008), the PSC invited applications for selection and recruitment on 74 posts of ADPO. The written examination for the post of ADPO was held on 24-8-2008. Thereafter, the model answer sheet was published by the PSC vide press release dated 20-8-2008 (Annexure - P/4 to W.P.(S) No.6383 of 2008). After receipt of the objections from the candidates again the amended model answer sheet was published (Annexure - P/6 to W.P.(S) No.6383 of 2008 page No.87), which were different from the earlier modet answer sheets, as there are number of changes in both the model answer sheets. In the amended model answer sheet the question No.30 has been deleted and the answers of question Nos.32 & 64 have been changed, as a result of which the petitioners could not quatify in the written examination. The result of the examinationwas declared on 21-10-2008 (Annexure - P/6 to W.P.(S) No.6383 of 2008 page No.86). Thus, these petitions. 11. Learned counsel appearing for the petitioners would submit that rules do not confer power on the PSC to delete any question from the paper after completion of examination process. The PSC ought to have got the question papers examined by the experts before conducting the written examination. The answer of the question Nos.32 & 64 have also been changed without assigning any cogent and sufficient reasons. In the written examination some questions have been given out of syllabus. Learned counsel would further submit that in a competitive examination, even one mark can make a •/"" ••"•^^- ^' -\ "^. "k ^ i:te?8s, s •^Vi-.<^,^ <^ctag^--; \^\ huge difference. Without considering the objections raised by the candidates in its letter and spirit and without giving any intimation to the candidates the result was declared. 12. Per contra, Shri Murthy, learned Dy. Advocate General appearing for the State and Shri Sinha, learned counsel appearing for the PSC, would submit that to maintain purity and transparency, the PSC issued a model answer sheet and after receipt of the objections from the candidates, the PSC consulted the experts and as per their advise the objections were decided and the amended/corrected model answer sheets were issued, thus, the said action of the PSC cannot be termed as illegal or bad. The obj'ections were considered by the experts with seriousness and due diligence. There was no arbitrariness in decision making process. Thus, there was no irregularity or illegality in the process of decision and, as such, this Court may not interfere under Article 226 of the Constitution of India. 13. Shri Sinha, learned counsel appearing for the PSC, would further submit that the petitioners after participating in the written test and on being found unsuccessful in the test, may not be permitted to approach this Court. Even otherwise, the petitioners have not impleaded the successful candidates in the written test as party/ respondents. Shri Sinha would next submit that there is no specific prayer for quashment of the revised modelanswers, which are based on the recommendations of the subject experts. It was further urged that the respondent PSC received objections in respect of 34 questions. All the questions were referred to the subject experts and on the basis of their recommendations and opinion; it was found that 10 questions were found incorrect out of that one question was recommended for deletion i.e. question No.30 in set-A, 20 in set-B, rti A- f 10 in set-C and 100 in set-D and the maximum mark was allotted to the candidates. The petitioners have no right to question the answers, as in normal circumstances they are not allowed to have the model answers, but in order to maintain transparency model answers were published to invite objections. On receipt of objections, necessary corrections mere wade in the answer sheet and some questions were also deleted. 14. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 15. The petitioner in W.P. (S) No.6383 of 2Q08 has pointed out 3 defects in the answer sheet i.e. questions No.30, 32 & 64 (set-A). Out of those 3 questions, question No.30 has been deleted. The amended model answer to question No.32 seems to be correct and the answer to question No.64 seems to be doubtful wherein the petitioner is required to give an answer, which is more correct than others. 16. In W.P. (S) No.288 of 2009 the question raised by the petitioner that several questions were out of syllabus, as in the advertisement it was provided that the questions shall be from the Constitution of India, Indian Penat Code, Criminal Procedure Code, Indian Evidence Act, Chhattisgarh Excise Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Narcotics Drugs and Psychotropic Substances Act, Arms Act, Prevention of Food Adulteration Act, Protection of Human Right Act, Right to Information Act and Legal Aid Tribunal Act. There are certain questions, which are according to the petitioner, are of general knowledge, but they are touching the above state subjects. Even otherwise, the examination being a competitive examination cannot be prescribed in particular syllabus, however, the prescription given in clause 2 of schedule 1 to the \\ "\ ^^'"-, <'>^J^" ^y advertisement is of general nature and there is no question, which is out of the legal subjects. Some other questions may be doubtful, but on the said basis the entire examination cannot be declared as i vitiated. 17. In Subash Chandra Verma and Others v. State of Bihar and Others , the Supreme Court observed that "even if the answers could be more than one, the candidates will have to select the one which is more correct out of the alternative answers. In any event, this is a difficulty felt by all the candidates." Thus, this difficulty was felt by all the candidates, who participated in the process and on this basis it cannot be held as vitiated. 18. The Supreme Court in Kanpur University, through Vice Chancellor and Others v. Samir Gupta and Others2 while considering the error and correct answers in an objective type test whereas multiple choice of answers are available observed as under: "15. The findings of the High Court raise a question of great importance to the student community. Normally, one would be inclined to the view, especially if one has been a paper- setter and an examiner, that the key answer furnished by the paper-setter and accepted by the University as correct, should not be allowed to be challenged. One way of achieving it is not to publish the key answer at all. If the University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. But that is not a correct way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students would have had to suffer the injustice in silence. The publication of the key 1 19958upp(1)8cc325 2 (1983)48cc 309 ^ 19. answer has unravelled an unhappy state of affairs to which the University and the State Government must find a solution. Their sense of fairness in publishing the key answer has given them an opportunity to have a closer look at the system of examinations which they conduct. What has failed is not the computer but the human system. 16. Shri Kacker, who appears on behalf ofthe University, contended that no challenge should be allowed to bemade to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential prpcess of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect." In Subash Chandra Verma (supra), the Supreme Court observed as under: "25.....(3) Several controversial questions were set and in relation to some questions, there could be more than one answer: In an objective type of test, more than one answer are given. The candidates are required to tick mark the answer which is the most appropriate out of the plurality of answers. The questions and answers were prescribed by the experts in the field with reference to standard books. Therefore, it is incorrect to say that a question will have more than one correct answer. Even if the answers could be more than one, the candidates will have to select the one which is more correct out of the alternative answers. In any event, this is a difficulty felt by all the candidates. Mr Kamla Kant Tripathi in his counter-affidavit talks of only two questions. The High Court had come to the conclusion that 24% questions are confusing and controversial and do not adhere to the multiple type of questions. Mr M.L. Verma, learned counsel relying on Kanpur University v. Samir Gupta would submit that the finding of the High Court on this aspect isfullyjustified. We are unable to uphold this contention. Normally speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise. In Kanpur University case relied upon by Mr M.L. Verma, the following obsen/ations occur at pp.81-82: (SCC p 316, paras 16and 17) "We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance test for admission to the Medical Colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those textbooks support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students 10 r9 for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong." That is not the position here. In Shantanu Singh (Dr) v. State of U.P.2 it is stated at page 87 as under: "In proceedings underArticle 226ofthe Constitution it is not possible for this Court to further probe into the matter and on the basis of affidavits and documents on record it has not been established that more than 6 questions had dual correct answers resulting in any disadvantage to the candidates who attempted the said questions. The University has directed that no negative marking on the disputed 6 questions should be done and as such no prejudice has been caused to the students who appeared in the examination. It is noteworthy that the University suo motu examined this aspect after the examinations were over and constituted a Committee of Experts to ensure that the students did not suffer on this score." In the circumstances quoted above, the question of appointment of a Committee of Experts suo motu by the Commission did not anse. It requires further to be noted that the Commission had given clear instructions to the evaluators to award full marks to the candidates in cases where (a) candidate has put tick mark against the correct answer and has also put correct answer in the box; (b) candidate has put only tick mark against the correct answer but has not written anything in the box; and (c) the candidate has written answer in the box but has not put any tick m*ark against the correct answers. No candidate was put to any disadvantage in awarding marks because of any discrepancy, ambiguity or duplicity. Moreover, there being no negative marking, no disadvantage was caused to any candidate on this account......" 20. There is no dispute that a list of selected candidates on the basis of written examination was published. The interview is to be conducted ^: ;,... z '' €-. 'fe.y 11 v^^ 21. on the basis of successful candidates. In the select list of written examination, according to the PSC, total posts initially advertised were 74, which were subsequently revised and enhanced to 99. The total candidates called for interview were 327, who have been found qualified in the written examination. Thus, the contention of the learned counsel appearing for the petitioners that since the final result for issuing appointment orders has not been released/the so called selected candidates cannot be held as necessary parties, is erroneous. The result of the written examination was published and some candidates were declared as qualified for interview that is the second leg of recruitment process. If at the back of the successful candidates in the written examination any decision adverse to them is taken the same would effect substantially to the successful candidates in the written examination. The petitioners, even after affording an opportunity to implead the successful candidates as part:y/respondents, declined to do the same on the ground that they are not relevant parties, as the final select list has not been published. In this regard the law is well settled that in that situation the writ petitions fail for non-joinder of necessary parties also. In the cases on hand, number of successful candidates were not so much, as it was not possible for impleading them as parties. Even the petitioners have knowingly taken the stand that impleadment of successful candidates in the written examination is not necessary. Thus, the writ petitions deserve to be dismissed on this ground alone. '^ 12 \^\ 22. The Supreme Court in All India SC & ST Employees' Association and Another v. A. Arthur Jeen and Others3, while considering the effect of not joining of the successful candidates as a party to the litigation wherein selection process and result thereof involved observed as under: "13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is an admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates, maybe, in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma v. State of U.P. has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them ,or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of the respondents has stated that: (SCC pp. 288-89) "A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, ifthe petitioners refuse (2001) 6 SCC 380 13 ^v to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties." 23. In Chandra Prakash Tiwari and Others v- Shakuntala Shukla and Others , the Supreme Court observed as under: "32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status — the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention