UTTAR PRADESH SUBORDINATE SERVICE SELECTION COMMISSION & ANR. versus BRIJENDRA PRATAP SINGH & ANR. on 14 December 2021

UTTAR PRADESH SUBORDINATE SERVICE SELECTIONCOMMISSION & ANR.

v.

BRIJENDRA PRATAP SINGH & ANR.

(Civil Appeal No. 7720 of 2021)

DECEMBER 14, 2021

[K. M. JOSEPH AND

PAMIDIGHANTAM SRI NARASIMHA, JJ. ]

Service Law: Examination held for the post of GramPanchayat Adhikari – Awarding of marks – Advertisement issuedfor filling up the post of Gram Panchayat Adhikari – Examinationfor said post took place on 21.02.2016 – In Examination, one ofthe question was asked about the name of the Panchayati RajMinister of State in which option ‘B’ was ‘Kailash Yadav’ – However,Minister for Panchayati Raj of State ‘Kailash Yadav’ passed awayon 09.02.2016 i.e. few days prior to examination – After the releaseof answer key, appellant Commission decided that the candidateswho chose option ‘B’ as correct answer or did not mark any optionfor the said question be awarded 01 (one) mark and no action wasrequired in respect of the candidates who chose option ‘A’, ‘C’, ‘D’of this question – Respondent-candidate, who offered option ‘A’,challenged the decision of the Commission by filing writ petitionbefore High Court – Division Bench directed the appellant either todelete the said question or award marks to respondent – Instantappeal filed by Commission – Held: The decision of the appellantcommission to award marks to those who answered option B or didnot mark any option is rationale – Respondent represented thosesection of candidates who gave an answer which was not correct atany point of time – Distinction drawn between the categories byCommission cannot be characterised as palpably arbitrary –Appellant made out a case for interference.

Allowing the appeal, the Court

HELD: 1. This is a case where as on the date when theexamination took place, actually none of the answers which weregiven as options were correct. On the date when the questionswere, in fact, set, one answer was correct (Option ‘B’). It is this

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Arationale which apparently has weighed with the appellantCommission in deciding to award marks to those who haveanswered by ticking Option ‘B’. Those who did not answer anyof the options, were given marks on the appellant’s premise thatnone of the answers were right. The respondent, on the otherhand, represented a section of those candidates who went aheadBand gave an answer which was not correct by any yardstick, atany point of time. So, it is here that the Commission drew adistinction between the categories which would not therefore, inshort, be characterised as palpably arbitrary. [Para 13][143-D-F]

Kanpur University Through Vice Chancellor v. SamirCGupta (1983) 4 SCC 309 : [1984] 1 SCR 73 – referredto.

Guru Nanak Dev University v. Saumil Garg and Others(2005) 13 SCC 749 – held inapplicable.

Case Law Reference

D[1984] 1 SCR 73referred to

Para 9

(2005) 13 SCC 749held inapplicablePara 10

CIVIL APPELLATE JURISDICTION: Civil Appeal No.7720 of

2021.

EFrom the Judgment and Order dated 18.02.2021 of the High Courtof Judicature at Allahabad in Special Appeal No.78 of 2019.

M. R. Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Niaz A.Farooqui, Zaki Ahmad Khan, Advs. for the Appellant.

Piyush Singh, Aditya Parolia, Akshay Srivastava, Sourav Sharma,FRajesh Kumar, Gaurav Goel, Adarsh Upadhyay, Advs. for theRespondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.G(1) Leave granted.

(2) In June, 2015, the appellant issued an advertisement callingfor applications for filling up the post of Gram Panchayat Adhikari. TheMinister for Panchayati Raj, Department in the State of Uttar Pradesh, was one Shri Kailash Yadav. Examination, pursuant to the advertisement,was scheduled to take place on 21.02.2016. Shri Kailash Yadav passedaway on 09.02.2016.

A

(3) In the examination, question No. 46 was as follows:

“46. Presently who is the Panchayati Raj Minister in UttarBPradesh?

A. Sh. Shivpal Yadav B. Sh. Kailash Yadav

C. Sh. Balram Yadav

D. Sh. Durga Prasad Yadav”

C

(4) The answer key came to be published on 25.02.2016. As isclear from the decision of the Commission in regard to question No. 46,as on the date when the examination took place on 21.02.2016, ShriKailash Yadav whose name is shown as the correct answer in terms ofOption B had passed away and therefore, Option B would not be correctanswer. In fact this was an uncontemplated event as can be seen withthe benefit of hindsight. The appellant Commission, accordingly, tookthe following decision on 29.03.2016:

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A(5) The results came to be declared on 24.12.2016. on 27.12.2016,based on the results, the appellant made recommendations for filling upthe vacancies. The respondent was a candidate in the said examination.In regard to question No. 46, he offered option No. A. He secured 86marks. The cut off marks for the category to which the respondentbelonged (OBC) was 87. He fell short of the required cut off by oneBmark. He filed a writ petition which has finally culminated in the presentappeal. The prayer sought for in the said writ petition may be noticed:

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“It is, therefore, most respectfully prayed that this Hon’ble Courtmay graciously be pleased to:-

A. Issue a writ, order or direction in the nature of writ ofCMandamus directing and commanding the respondent nos. 2 & 3to award the mark of question no. 46 of Booklet Series ‘C’ to thepetitioner and prepare a fresh select list.

B. Issue a writ, order or direction in the nature of writ ofMandamus directing the respondent no.2 and 3 to consider theDcandidature of the petitioner as selected candidate or petitionermay be adjusted on the post of Gram Panchayat Adhikari in GramPanchayat Adhikari (General Selection) Examination-2015(Advertisement no. 7(3)/2015.

C. Issue any other writ, order or direction which this Hon’bleECourt may deem fit and proper under the circumstances of thecase, so as to secure the ends of justice or else, the Petitionersshall suffer irreparably.

D. To Award the cost of the petition to the petitioners.”

(6) Learned Single Judge did not find merit in the contention ofFthe respondent and the writ petition was dismissed.

(7) By the impugned judgment, the Division Bench, however,allowed the appeal filed by the respondent. The Division Bench took theview that the ‘case at hand is not having any dispute that all the optionsof question no. 46 were incorrect on the date of the selection test whichGwas due to the sad demise of the then minister’. Awarding of marks tothose who did not give the answer to question cannot be accepted to beproper. So also the answer of marking option of Shri Kailash Yadav tobe Minister it was found. The Division Bench proceeded to direct theappellant to take a decision to either delete question no. 46 of bookletHseries ‘C’ or to award the marks to the respondent also and if he came in the merit on awarding of marks then to take further appropriate actionas per merit position.

(8) We have heard learned counsel appearing on behalf of theappellant and learned counsel appearing on behalf of the respondent.

(9) Learned counsel appearing on behalf of the appellant wouldcontend that the direction to delete question no. 46 would cause seriousprejudice. On the basis of the selection which commenced in the year2015 and after the examination took place on 21.02.2016 in regard towhich results were published on 24.12.2016 and pursuant to which,appointments of number of candidates stood materialised would have tobe reworked. Learned counsel for the appellant, no doubt, drew supportfrom the view taken by the judgment of this Court in Kanpur UniversityThrough Vice-Chancellor v. Samir Gupta (1983) 4 SCC 309. It is hiscontention that the view taken by the appellant Commission cannot becharacterised as palpably perverse. When arriving at such a finding, itmay not be open in judicial review proceedings to substitute the viewtaken by the examining body. He would further justify the rationale inthe following manner. It was pointed out that so far as the decision toaward marks to those candidates who answered question no. 46 byapproving option ‘B’ which is Shri Kailash Yadav, candidates were giventhe benefit, as the Commission, apparently, was of the view that the saidperson was indeed the minister and the answer would have been correctbut for his passing away just 12 days prior to the date of the examination.As far as those candidates who did not attempt to answer the questionconcerned, the Court is persuaded to take the view that noticing that allthe answers to the question were as on the date of the examination notcorrect, if a candidate did not answer the question, it should not workagainst him. This is in stark contrast with the case of the respondentwho has undoubtedly, ticked option ‘A’ which at no point of time couldbe treated as the correct answer. In other words, the case of therespondent stands on a different footing from a candidate who has givenan answer which clearly is palpably wrong. In such circumstances, hewould commend for our acceptance the principle that in the matter ofselection by a body, unless a decision taken is palpably perverse, theCourt should adopt a hands off approach.

(10) Per contra, learned counsel for the respondent stronglycontended that the respondent who belongs to the OBC category hadsecured 86 marks which was only one mark short of the cut off marks.

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AHe was at pains to point out that all that the High Court has directed is torework the position by giving him one mark for question no. 46 in casethe Commission did not delete question no. 46 and thereafter, if he securedsufficiently high marks that he could secure selection, then alone, hewould get the benefit. More importantly, he drew support from anotherdevelopment, one Ankur Srivastava and another person filed Writ PetitionBNo. 10779 of 2018. In the said case, the stand of the appellant was thatit has been decided to allow one mark to the question to all candidatesacross the Board. He points out that perusal of the order passed in thesaid case reveals that the High Court dismissed the writ petition in viewof the submission made by the appellant as grievance of the petitionersCtherein did not survive. He would further also contend before us that theCourt may approach his problem bearing in mind the principle laid downby this Court in Guru Nanak Dev University v. Saumil Garg andOthers (2005) 13 SCC 749. Therein, three learned Judges while dealingwith the problem of incorrect answers or rather incorrect questions/vague questions inter alia held that “It is wholly unjust to give marks toDa student who did not even attempt to answer those questions”. Hewould therefore, point out that in the facts of this case, the principle isapposite and there is no rationale for the respondent to deny the markwhich on all counts he is entitled to.

(11) The selection started in this case in the year 2015 by issuanceEof the advertisement. The examination took place on 21.02.2016. Option‘B’ to the question no. 46 would have been the correct answer but forthe untimely death of the minister in question just 12 days prior to theexamination. In other words, as on the date when the examiner settledthe question with which we are concerned, this is not a case for a questionFwhich was without the correct option. It was not a vague question atthat time. Circumstances overtook both the Commission and thecandidates, however, as on the date of the examination option ‘B’ wouldbe a wrong answer. None of the options could possibly be the correctanswer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn theGsaid decision in the writ petition as such. Secondly, we cannot be obliviousto the fact that by the time, the Division Bench rendered the impugnedjudgment which is dated 18.02.21, much water has flown under the bridgein the form of selection being taken forward and appointments beingmade. Therefore, direction to delete the question at this stage may notHbe an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the otheroption which is couched as direction to the appellant is concerned whichis to give a mark to the respondent, we have to necessarily sustain sucha direction on the basis of the illegality of the decision taken by theappellant being successfully impugned.

(12) We are of the view that the principle of judicial review whichis apposite in such case is indeed that of power of the Court beingsupervisory in nature and the jurisdiction not being that of an appellatebody. The challenge to the legality of the decision making process mustbe appreciated with reference to relevant well known inputs. Quite apartfrom the fact that the decision as such is not questioned as alreadynoticed and even taking the decision as it is and proceeding to examineits legality, we may find it difficult to sustain the objection of the respondenton the basis that the appellant Commission has even decided to grantmarks to those who have not attempted to give any answer.

(13) We have already noticed the view expressed by the Benchof three learned Judges in Guru Nanak Dev University (supra). Butwe may not be justified in applying the said principle in the facts of thiscase. This is a case where as on the date when the examination tookplace, actually none of the answers which were given as options werecorrect. On the date when the questions were, in fact, set, one answerwas correct (Option ‘B’). It is this rationale which apparently has weighedwith the appellant Commission in deciding to award marks to those whohave answered by ticking Option ‘B’. Those who did not answer any ofthe options, were given marks on the appellant’s premise that none ofthe answers were right. The respondent, on the other hand, representeda section of those candidates who went ahead and gave an answerwhich was not correct by any yardstick, at any point of time. So, it ishere that the Commission drew a distinction between the categorieswhich would not therefore, in short, be characterised as palpably arbitrary.

(14) As far as the other litigation in the form of the order passedby the High Court in which the counsel for the appellant commissiontook the stand that one mark is made available to all candidates acrossthe Board and the contention based thereon by the respondent isconcerned, the stand of the appellant is that no candidate in the positionof the respondent who has given a wrong answer (answer other thanoption B) has been given one mark. We record this statement. It isstated to be part of the rejoinder affidavit also.

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144SUPREME COURT REPORTS

A(15) In such circumstances, we are of the view that, in the factsof this case, the appellant has made out a case for interference. Appealis allowed and the impugned judgment stands set aside.