IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6130 of 2010, along with other connected matter Decided on : 03.12.2010. 1. CWP No.6130 of 2010 Suneel Kumar ……Petitioner. Versus H.P. State Public Service Commission …. Respondent. 2. CWP No. 6131 of 2010 Sanjeev Kumar ..…Petitioner. Versus H.P. State Public Service Commission …… Respondent. 3. CWP No. 6182 of 2010 Vishal Gupta ..…Petitioner. Versus State of H.P and another …… Respondents 4. CWP No. 6183 of 2010 Chander Vir Singh ..…Petitioner. Versus State of H.P and another … Respondents 5. CWP No. 6295 of 2010 Anil Gupta ..…Petitioner. Versus State of H.P and another … Respondents 6. CWP No. 6296 of 2010 Jai Singh ..…Petitioner. Versus State of H.P and another …… Respondents 7. CWP No. 6296 of 2010 2 Jai Singh ..…Petitioner. Versus State of H.P and another …… Respondents 8. CWP No. 6298 of 2010 Ashwani Kumar ..…Petitioner. Versus State of H.P and another …… Respondents 9. CWP No. 6324 of 2010 Surender Kumar ..…Petitioner. Versus State of H.P and another …… Respondents 10. CWP No. 6325 of 2010 Dr. Raj Kumar ..…Petitioner. Versus State of H.P and another …… Respondents 11. CWP No. 6334 of 2010 Subhash Chauhan .. ..…Petitioner. Versus State of H.P and another …… Respondents 12. CWP No. 6344 of 2010 Surender Singh ..…Petitioner. Versus H.P. Public Service Commission …… Respondents 13. CWP No. 6345 of 2010 Ramesh Chand ..…Petitioner. Versus H.P. Public Service Commission …… Respondents 14. CWP No. 6360 of 2010 Harish Kumar ..…Petitioner. Versus 3 H.P. Public Service Commission …… Respondent 15. CWP No. 6364 of 2010 Sanjay Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 16. CWP No. 6380 of 2010 Vinod Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 17. CWP No. 6423 of 2010 Aman Kumar ..…Petitioner. Versus State of H.P and another …… Respondents 18. CWP No. 6426 of 2010 Bhagwati Prasad ..…Petitioner. Versus State of H.P and another …… Respondents 19. CWP No. 6463 of 2010 Rajni Gandhi ..…Petitioner. Versus State of H.P and another …… Respondents 20. CWP No. 6464 of 2010 Suresh Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 21. CWP No. 6465 of 2010 Vikrant Gaurav ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 22. CWP No. 6466 of 2010 4 Neeraj Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 23. CWP No. 6478 of 2010 Thaman Singh ..…Petitioner. Versus State of H.P and another …… Respondents 24. CWP No. 6479 of 2010 Raj Kumar ..…Petitioner. Versus State of H.P and another …… Respondents 25. CWP No. 6480 of 2010 Harish Chauhan ..…Petitioner. Versus State of H.P and another …… Respondents 26. CWP No. 6486 of 2010 Naresh Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 27. CWP No. 6487 of 2010 Yadvender Singh ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 28. CWP No. 6488 of 2010 Ramesh Singh ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 29. CWP No. 6490 of 2010 Pawan Kumar Thakur ..…Petitioner. 5 Versus State of H.P and another …… Respondents 30. CWP No. 6495 of 2010 Ranjeet Singh Katoch ..…Petitioner. Versus H.P. Pubic Service Commission …… Respondent. 31. CWP No. 6551 of 2010 Amit Guleria ..…Petitioner. Versus State of H.P and another …… Respondents. 32. CWP No. 6559 of 2010 Rajeev Thakur ..…Petitioner. Versus State of H.P and another …… Respondents. 33. CWP No. 6580 of 2010 Dharamendra Kumar ..…Petitioner. Versus State of H.P and another …… Respondents. 34. CWP No. 6581 of 2010 Neeraj Sood ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 35. CWP No. 6586 of 2010 Girish Samra ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 36. CWP No. 6590 of 2010 Prem Sarita ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 6 37. CWP No. 6591 of 2010 Amarjeet Sharma ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 38. CWP No. 6592 of 2010 Ekta Kapta ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 40. CWP No. 6600 of 2010 Ashish Chauhan ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 41. CWP No. 6601 of 2010 Manish Mahajan ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 42. CWP No. 6603 of 2010 Yudhvir Rana ..…Petitioner. Versus State of H.P and another …… Respondents. 43. CWP No. 6614 of 2010 Kapil Sharma ..…Petitioner. Versus H.P. Public Service Commission …… Respondent. 44. CWP No. 6615 of 2010 Jagpal Singh ..…Petitioner. Versus State of H.P and another …… Respondents 45. CWP No. 6617 of 2010 7 Ankit Singh ..…Petitioner. Versus State of H.P and another …… Respondents 46. CWP No. 6631 of 2010 Harinder Singh ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 47. CWP No. 6637 of 2010 Yash Pal Sharma ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 48. CWP No. 6704 of 2010 Kavita Attri ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 49. CWP No. 6717 of 2010 Ranjeet Singh ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 50. CWP No. 6720 of 2010 Pawan Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 51. CWP No. 6729 of 2010 Shailender Singh ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 52. CWP No. 6736 of 2010 8 Bharat Bhushan ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 53. CWP No. 6771 of 2010 Diwan Chand ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 54. CWP No. 6924of 2010 Pardeep Kumar ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 55. CWP No. 7152 of 2010 Harpinder Kaur Sidhu ..…Petitioner. Versus H.P. Public Service Commission …… Respondent 56. CWP No. 7268 of 2010 Vinod Sharma ..…Petitioner. Versus State of H.P and another …… Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Amit Chandel, Mr. Anil Chadel, Mr. B.K. Thakur, Mr. V.B. Verma, Mr. Tarlok Chauhan, Mr. Hamender Chandel, Mr. Neeraj Kumar Sharma, Mr. Sanjeev Bhushan, Mr. Anup Rattan, Mr. Ashwani Sharma, Mr. Ashok Sood, Mr. D.K. Sharma, Mr. Bhuvnesh Sharma, Mr. Ramakant Sharma, Mr. Rajeev Rai, Mr. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 9 M.L. Sharma, Mr. Vinod Thakur, Mr. Rajinder Thakur, Mr. Bimal Gupta, Mr. Adarsh K. Vashista, Mr. G.S. Rathour, Mr. Anil Kumar God, Mr. D.N. Sharma, Mr. T.S. Chauhan, Mr. Vishal Bindra and Mr. Vishwa Bhushan, Advocates, For the respondents: Mr. R.K. Bawa Advocate General with Mr. Ankush Dass Sood, Addl. A.G for Respondent-State. Mr. Shrawan Dogra and Mr. D.K. Khanna, Advocates for Respondent-Commission. Justice Kurian Joseph, Chief Justice (Oral). All these writ petitions have been filed with certain allegations regarding the conduct of Himachal Pradesh Administrative Service (H.A.S) (Preliminary) Examination-2009. The examination is conducted by the Himachal Pradesh Public Service Commission (in short ‘the Commission’). After the preliminary examination, the Commission conducts final examination. The preliminary examination covers one paper on General Studies and another 22 optional subjects on objective type. Some of the allegations are : (i) Questions are asked out of syllabus. (ii) Questions are misconceived. (iii) More than one option is possible. Though, ordinarily this Court does not entertain a Writ Petition challenging conduct of competitive examinations particularly since the Court is not possessed of the wherewithal to go into the opinion rendered by the experts, in view of the demonstrably wrong key answers, we passed an interim order on 25.10.2010, relevant portion whereof reads as under :- “3. Despite all such bonafide and well meaning 10 steps taken by the H.P. Public Service Commission, it appears that there is force in some of the allegations in the Writ Petitions. Though, we do not propose to explain each of the allegations on their merit, on perusal of the pleadings, we find that some of the answers furnished in the key are demonstrably wrong and in some cases two views are certainly possible. It is also a fact that certain questions in some of the 22 subjects are wholly out of syllabus. 4. The matters having been heard for some time, the counsel on both the sides fairly submit on agreement that the objections as raised in these Writ Petitions can be referred to the key-Committee (s) for fresh consideration in the light of the materials furnished in the Writ Petitions. 5. In the above circumstances, we direct the H.P. Public Service Commission to refer the disputed questions raised in these Writ Petitions for fresh consideration by the key- Committee (s) along with the materials furnished by the petitioners. Needless to say that the consideration by the Committees need only be in respect of subjects wherein the disputes have arisen.” 2. In pursuance to the directions as above, the Public Service Commission has filed report dated 29th November, 2010, the relevant portion whereof is as under :- “4. That as a result of above directions, the respondent Commission constituted fresh ‘key-committees’ with respect to the subjects of ‘General Studies’ and 12 optional subjects covered by all the writ petitions, namely, Animal Husbandry & Veterinary Science, Botany, Commerce & Accountancy, Economics, Geography, Indian History, Law, Physics, Political Science, Public Administration, General Sociology and Zoology. 5. That the experts associated were different from the original experts and all of them were from out of State and they were supplied all the materials like copy of syllabus, question booklets, including writ petitions and Annexures attached with it. 6. That the exercise of re-examination was undertaken by the committees between 11th November, 2010 to 16th November, 2010. 11 7. That the committees of experts were requested to deliberate and look into the objections and materials attached with the writ petitions and furnish the report to the Commission. 8. That all the expert committees so constituted have submitted their respective reports in respective subjects to the respondent Commission. 9. That in compliance to the orders of the court referred above, the roll numbers of 485 already qualified persons were taken out of the total examinees who had appeared in the HAS Preliminary Examinations-2009. 10. That the expert committee constituted in respect of subject of Botany has reported ‘No Change’ in the key- answers as earlier applied. 11. That the different key-committees constituted for different subjects suggested change in result with respect to following number of questions :- (i) General Studies : 9 changes, 2 scrapping of questions. (ii) AG & Vety Sc.: 8 changes, 2 scrapping of questions (iii) Botany : No change. (iv) Comm, & Acct.: 1 change (v) Economics : 2 changes, 1 scrapping of question. (vi) Geography : 3 changes, 1 scrapping of question. (vii) Indian History : 7 changes, 2 scrapping of questions. (viii) Law : 3 changes. (ix) Physics : 1 change. (x) Political Science : No change, 1 scrapping. (xi) Public Administration :3 changes,1scrapping of question. (xii) Zoology : 7 changes, 1 scrapping of question. 12. That the experts in all the subjects have certified that the questions cannot be said to be out of prescribed syllabus. 14. That as a result of the above exercise 206 more candidates have crossed the cut off marks limit, but officially result has not been declared on account of the present writ petitions and the fact that the matter has been listed for further orders by this Hon’ble Court on 1.12.2010.” 3. Some of the petitioners are still and naturally too unhappy with the outcome of the process undertaken by the Commission as 12 above. It is submitted that the Commission should publish the key answers, in that case, the petitioners will also get an opportunity to verify the answers. There is also a contention that in view of number of mistakes that have been admitted by the experts, the whole examination should be cancelled. 4. The Commission has handed over the report and the materials leading to the report pertaining to the exercise undertaken by the experts in the various subjects. We have gone through those records. It is seen from the records that the experts in each subject have applied their mind with reference to the materials and thereafter only come to the conclusion as stated in the report as extracted above. It may not also be out of context to observe that none of the experts who have examined the matter and submitted the opinions is taken from the State. 5. It is seen from the records that the Commission has declared the result as per the revised key on 2.12.2010 as directed by this Court. It is also seen that the candidates who had already crossed the bench mark have not been adversely affected as clarified by the Court in the interim order. As per the revised key 206 more candidates have crossed the bench mark. Therefore, 485 + 206 = 691 candidates only shall now be appearing in the final examination. On the question of law, learned counsel for the Commission submit that the High Court may not go into the correctness of the questions and the answers thereof. Though, several decisions are cited before us, we may deal only with the latest judgment in this regard, which pertains to a case from Himachal Pradesh itself reported as Himachal Pradesh Public Service Commission Versus Mukesh Thakur and another, (2010) 6 Supreme Court Cases 759. In paragraph 20 of the judgment, the Hon’ble Apex Court has held as follows :- 13 “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.” 6. Inviting reference to the decision of the Hon’ble Supreme Court in Kanpur University, Through Vice Chancellor and Others Versus Samir Gupta and Others, reported as (1983) 4 Supreme Court Cases 309, the learned counsel for the petitioners submit that the Commission should be forthright in accepting the mistakes and taking the remedial measures, in a transparent manner. It is held by the Supreme Court in the above case as follows : “The key answer should be assumed to be correct unless it is proved to be wrong. It should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong that is, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. Reliance can be placed on the prescribed text-books from which students derive their knowledge on the subjects. If it is beyond doubt that the key answer is incorrect, it would be unfair to penalize the students for not giving an answer which accords with such wrong key answer.” 7. Some of the learned counsel appearing for the petitioners vehemently contended regarding questions being out of syllabus. 14 We have gone through the records as furnished to us by the Commission. It is seen from the opinion of the experts that the questions according to them cannot be said to be out of syllabus. Main thrust of the arguments pertains to question in the subject of Political Science. According to the petitioners, 16 questions are from Political Thought and Theory, whereas there is a prescribed syllabus in which not much importance is given to Political Thought and Theory. Probably, Political Thought and Theory are also part of the subjects covered by Political Science. In our opinion, various aspects have been covered by the subject of Political Science and going by the opinion rendered by the experts, we find difficult to support any other view, acknowledging also there impropriety in and if not the inability to do so. Having gone through the process presently undertaken by the experts, it cannot be stated that there is only inferential process of reasoning or rationalization. 8. However, we cannot but make a passing observation as to the setting of papers. In the process of rechecking by the experts, they themselves have scrapped nine questions as mistakes of fact, they themselves have suggested altogether 44 changes and the changes in subjects would vary from one to as many as eight. The experts should examine their conscience as to when they initially set the questions whether they had done it from their own understanding or on verifying the same with reference to authentic text books. The examiners should have the required level and sense of seriousness. It is a matter vitally affecting the future of children. The questions should be set only with reference to authentic text books. Questions with doubtful answers should be avoided. The answers should be clearly referable to authentic books of reputed and eminent men in the subject concerned. The 15 Commission should communicate these observations to the experts who set the questions and to all those who set questions in future for any examination. 9. Learned counsel for the petitioners submitted that it is a matter of grave concern that the competitive examinations conducted every year by the State Commission are challenged before this Court and this Court interfering with the matters. Learned counsel for the Commission submitted that the Commission had given serious thought to this aspect and they have decided to revise the whole scheme of conduct of the examinations, which requires amendment in the 1973 Rules pertaining to HAS examination. The main proposal is for introduction of a system containing only two papers, one General Studies and another Aptitude Test. It is seen that the matter is under serious consideration of the Government. We direct the State Government to look into the matter and take requisite steps to ensure that the competitive examinations in the State are conducted in a fool proof manner, without the remotest possibility of any room for any allegation. The Government and the Commission shall also see that if it is possible to adopt UPSC model or the models adopted by the various Commissions in other States. Learned counsel for the Commission submitted that this exercise had already been undertaken by the Commission and the proposal is pending with the State Government. It is further directed that the Government should take further action in the matter, so that before conducting of the examination from the year 2011 onwards, the new system is introduced. 10. As held by the Apex Court in Kanpur University Case (supra), “It is fair to publish the key answers of the questions along with the result of the test.” Therefore, the Commission will publish 16 revised key so as to ensure fairness and transparency, within a week. The Public Service Commission may proceed to conduct the final examination as per the revised exercise undertaken by them by permitting 691 candidates. 11. The wit petitions are disposed of as above, so also the pending application (s), if any. Copy Dasti. (Justice Kurian Joseph), Chief Justice 3rd December, 2010 ( Justice V.K. Sharma), LSP/CS Judge. 17