Case: UTTAR PRADESH SUBORDINATE SERVICE SELECTION COMMISSION &amp; ANR Vs. BRIJENDRA PRATAP SINGH &amp; ANR

the matter of selection by a body, unless a decision taken is palpably perverse, the Court should adopt a hands off approach. 10. Per contra, learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter, if he secured sufficiently high marks that he could secure selection, then alone, he would get the benefit. More importantly, he drew support from another development, one Ankur Srivastava and another person filed Writ Petition No. 10779 of 2018. In the said case, the stand of the appellant was that it has been decided to allow one mark to the question to all candidates across the Board. He points out that perusal of the order passed in the said case reveals that the High Court dismissed the writ petition in view of the submission made by the appellant as grievance of the petitioners therein did not survive. He would further also contend before us that the Court may approach his problem bearing in mind the principle laid down by this Court in Guru Nanak Dev University v. Saumil Garg and Others (2005) 13 SCC 749 . Therein, three learned Judges while dealing with the problem of incorrect answers or rather incorrect questions/vague questions inter alia held that It is wholly unjust to give marks to a student who did not even attempt to answer those questions. He would therefore, point out that in the facts of this case, the principle is apposite and there is no rationale for the respondent to deny the mark which on all counts he is entitled to. 11. The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option B to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination. In other words, as on the date when the examiner settled the question with which we are concerned, this is not a case for a question which was without the correct option. It was not a vague question at that time. Circumstances overtook both the Commission and the candidates, however, as on the date of the examination option B would be a wrong answer. None of the options could possibly be the correct answer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn the said decision in the writ petition as such. Secondly, we cannot be oblivious to the fact that by the time, the Division Bench rendered the impugned judgment which is dated 18.02.21, much water has flown under the bridge in the form of selection being taken forward and appointments being made. Therefore, direction to delete the question at this stage may not be an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the other option which is couched as direction to the appellant is concerned which is to give a mark to the respondent, we have to necessarily sustain such a direction on the basis of the illegality of the decision taken by the appellant being successfully impugned. 12. We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision making process must be appreciated with reference to relevant well known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer. 13. We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University (supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place, actually none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option B). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option B. Those who did not answer any of the options, were given marks on the appellants premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary. 14. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. We record this statement. It is stated to be part of the rejoinder affidavit also.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option B to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination. In other words, as on the date when the examiner settled the question with which we are concerned, this is not a case for a question which was without the correct option. It was not a vague question at that time. Circumstances overtook both the Commission and the candidates, however, as on the date of the examination option B would be a wrong answer. None of the options could possibly be the correct answer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn the said decision in the writ petition as such. Secondly, we cannot be oblivious to the fact that by the time, the Division Bench rendered the impugned judgment which is dated 18.02.21, much water has flown under the bridge in the form of selection being taken forward and appointments being made. Therefore, direction to delete the question at this stage may not be an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the other option which is couched as direction to the appellant is concerned which is to give a mark to the respondent, we have to necessarily sustain such a direction on the basis of the illegality of the decision taken by the appellant being successfully impugned.12. We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision making process must be appreciated with reference to relevant well known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer.13. We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University (supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place, actually none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option B). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option B. Those who did not answer any of the options, were given marks on the appellants premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary.14. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. We record this statement. It is stated to be part of the rejoinder affidavit also.