W.P.(C)/4976/2014 of SALIL MAHESHWARI Vs THE HIGH COURT OF DELHI AND ANR

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 20.08.2014Pronounced on: 05.09.2014

+W.P.(C) 4976/2014, C.M. NOS. 9954/2014 & 9955/2014

SALIL MAHESHWARI..... PetitionerThrough : Sh. R.K. Kapoor and Ms. S. Rama,Advocates.

Versus

THE HIGH COURT OF DELHI AND ANR...... RespondentsThrough : Sh. Rajiv Bansal and Sh. Avirai Kumar,Advocates, for the DHC.Ms. Sana Ansari, for Ms. Zubeda Begum, StandingCounsel (Civil), for Resp. No.2.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT

1.In this writ petition under Article 226 of the Constitution ofIndia, the petitioner challenges the framing of question paper for theDelhi Judicial Service (DJS) Preliminary Examination, 2014 by thefirst respondent, the Delhi High Court, as being contrary to the lawlaid down in the case of Gunjan Sinha Jain v. Registrar General HighCourt of Delhi, in W.P.(C). No. 449/2012.

2.The writ petitioner is law graduate who, in accordance with anadvertisement dated 18.2.2014 for recruitment to the Delhi Judicial

Service (“DJS”), took the exam held on 1.6.2014. 80 vacancies wereadvertised, of which 55 were for the General Category of candidates.The exam was to comprise of three parts, the preliminary exam, themain exam and the interview, and candidate was required to secure aminimum of 60%, or 120 marks out of 200, and obtain rank withinten times the number of vacancies advertised (“the requisite number”),to be eligible for the main exam after the preliminary exam. Ananswer key was published by public notice on 9.6.2014 andobjections were invited to the proposed answers from the candidates,before 23.6.2014. Accordingly, the petitioner conveyed his objectionsby speed post on 17.6.2014 against 11 answers in the answer key. Therespondent accepted 3 of the 87 objections by its public notice of2.7.2014. Of those accepted, one had been raised by the petitioner. On8.7.2014, the results of the exam were declared and the petitioner wasawarded 126.75 marks (which was more than the 60% minimum),while the cut-off marks fixed were 128.75. Out of total 9033candidates in the examination, the petitioner secured the 6196[th]position. Despite having secured the 60% minimum, the petitioner didnot find place within the requisite number.

3.The petitioner argues that he would have cleared the secondcriterion as well, had the respondent framed the questions in thequestion paper without any ambiguity. Given that candidate has onlyabout 45 seconds to select the correct answer to each question, heargues that there should be no ambiguity between the choices ofpossible answers that are provided, to admit of the possibility of more

than one “correct” answer. The petitioner states that the responses tothe objections raised in respect of questions 34, 69, 82, 84, 121, 130,167, 168 were not satisfactory.The objections raised are that theanswers in the key, to Questions 34, 69, 121, 130 are incorrect, whileQuestions 84, 167, 168, 82 admit of two possible correct answers. Thepetitioner’s case is that if these answers were correctly set and theambiguous questions are cancelled, then the petitioner would make itto the list within the requisite number. Relying upon decision of thisCourt in Gunjan Sinha Jain v. Registrar General, High Court of Delhi,delivered on 9.4.2012 in W.P.(C) 449/2012, it is argued that the DelhiHigh Court was directed to ensure that questions be clear and mustprovide all necessary information to arrive at the appropriate answer;questions which could have doubtful or debatable answers were not tobe allowed. On this basis, the petitioner argues that the respondentshould be directed to make the necessary corrections in the questionpaper, to cancel the questions which admit of two possible answers,and then re-evaluate the candidates and redraw the merit list for theDJS exam. The petitioner also seeks direction to the respondent toreschedule the main examination of the DJS form the scheduled datesof 11-12 October 2014, so as to provide sufficient time for candidateswho may become entitled to appear in the exam.

4.This Court, when it was seized of this matter, also heard andsubsequently dismissed W.P. (C) 4974/2014, with this order:

“After some hearing, learned counsel sought liberty towithdraw the petition in view of the fact that the issues are

coveredinW.P.(C.)No.4976/2014. Dismissedaswithdrawn.”

5.In this writ petition i.e W.P. (C) no. 4976/2014, this Courtissued notice only in respect of three of the questions objected to, asthe petitioner conceded the objections against the remaining questions.By an order dated 8.8.2014, the respondent was directed to provideexplanations for the answers stipulated in their answer key against Cseries Questions 82 (on the point of organisation of gram sabhas), 84(on the point of the High Court being considered “State” under Article12 of the Constitution), and 130 (on the question of how publicprosecutor can withdraw from prosecution of case involvingmisappropriation of Central Government property).The respondentsplaced its explanations on record on the last date of hearing.

6.The respondents’ preliminarily argue against the maintainabilityof challenge to the answer key for Question 82 (C series) as it wasnot objected to by the petitioner; the latter would thus be estoppedfrom advancing this challenge in subsequent writ proceedings. ThisCourtnotesthatthepetitionerhadcommunicatedobjections(Annexure P4 to the writ petition) to the model answer key, addressedto the office of the Joint Registrar (Vigilance) of this Court, in respectof Questions 114, 71, 83, 159, 185, as well as for the questions inrespect of which challenge is made in this writ petition, i.e.Questions 34, 69, 84, 121, 130, 167, 168. However, conspicuously, noobjection was raised in respect of series Question 82(on whethergram sabhas are required to be organised under Directive Principle

of State Policy). In WP (C) no. 4974/2014 as well, this Court notesthat Question 107, in the series question paper, which is identical toC series Question 82, was challenged. However, the petitioner in thatpetition had neither claimed that he had communicated objections tothe respondents, nor placed on record any objections against theanswerkey.Therefore,itisapparentthatQuestion82(Cseries)/Question 107(E series) was not objected to in both petitions.

7.This Court is of the opinion that the petitioner cannot be heardto challenge the answer key to particular question, afterhavingdiscovered that he was awarded no marks for his response, it being atvariance with the answer key. Here, the last date for communicatingobjections was 23.6.2014, and the respondent released its response tothe objections on 2.7.2014. The results were only published on8.7.2014. It appears that the petitioner did not think it necessary toobject to this question before the deadline for objections, but onlysought to object after the results were published on 8.7.2014 by way ofthis petition filed on 1.8.2014. This Court finds that the petitioner wastherefore estopped from raising challenge at this belated stage, sincea challenge cannot be advanced against selection process only afterthe candidate has discovered his or her unsuccessful performance inthe process. See Dhananjay Malik v. State of Uttaranchal (2008) 4SCC 171 and Madan Lal v. State of J&K (1995) 3 SCC 486.Consequently, no findings will be recorded in regard to this question.

8.The High Court Establishment relies on Himachal PradeshPublic Service Commission v. Mukesh Thakur and Anr.,(2010) 6

SCC 759 and Gurmehtab Singh v. State of Haryana, in CWP No.7570/2013 (O&M), to argue that in the absence of any provision instate or subordinate legislation authorising re-evaluation, the Courtshould not direct re-evaluation. It is also submitted, based on KanpurUniversity v. Samir Gupta, (1983) 4 SCC 309, that the answer keymust be presumed to be correct, unless it can be clearly demonstrated,withoutresortingtoanyinferentialprocessofreasoningorrationalisation, that it is so patently wrong that no reasonable body ofpersons well-versed in the subject would regard the answer as correct.Without prejudice to these submissions, the respondent states therationale behind the answer key for the challenged questions. seriesQuestions 84 reads:

“Which of the following is State for the purpose of Article12 of the Constitution?(1) National Council of Educational research and training.(2) Institute of Constitutional and Parliamentary studies.

(3) Indian oil Corporation.

(4) High Court of Delhi.”

9.According to the answer key, option (3) is the right option inaccordance with Mahabir Auto Stores v. Indian Oil Corporation(1990) 3 SCC 752. The petitioner’s counsel, Shri R.K. Kapoor, on theother hand, submits that option (4) can also be considered “State”under Article 12, when the High Court exercises its administrativepowers. The High Court establishment contends that option (4) refersto the High Court in its entirety, i.e. both the judicial as well as theadministrative side of the High Court; in accordance with NareshMirajkar v. State of Maharashtra AIR 1967 SC 01 and R Antulay v.

RS Nayak (1988) 2 SCC 602, the High Court in all its functions cannotbe considered “State”. To mark option (4) as the correct answer wouldrequire some reasoning and rationalisation, argues the respondents. Cseries Question 130 reads:

“Prosecution of case involving misappropriation ofpropertybelongingtotheCentralGovernmentbewithdrawn by

(1) Any public prosecutor on the direction of the StateGovernmentGovernment

(2) The public prosecutor appointed by the CentralGovernment on the direction of the State Government.Government on the direction of the State Government.

(3)ThePublicProsecutorappointedbytheStateGovernment on permission granted by the Government

(4) Any Public Prosecutor on the direction of the CentralGovernment.”Government.”

10.According to the answer key, option (3) is the correct answer,according to Section 321 of the Criminal Procedure Code and thesettled proposition that the decision to withdraw prosecution must bemade solely by the prosecutor, without any influence or interferenceof the Government, as recognised in S K Shukla v. State of UP, AIR2006 SC 413; Rahul Agarwal v. Rakesh Jain, AIR 2005 SC 910 andSubhash Chander v. State, AIR 1980 SC 423. The proviso, however,recognises that prosecutor not appointed by the Central Governmentwould need permission from the Central Government in order towithdraw prosecution when the property misappropriated is CentralGovernment property. This, argues learned counsel for Delhi HighCourt establishment, means that public prosecutors appointed by theCentralGovernmenthavethesolediscretionwithregardtowithdrawalofprosecution,butthoseappointedbytheState

Government, on the other hand, have no such discretion, and needCentral Government approval.

11.Before recording decision on the merits, the scope of judicialreview of an answer key in test for law graduates, such as for theDJS examination, must be recognised. The law prevailing in thisregard is laid down in Kanpur University (supra), in respect of theanswer key in combined medical test in which the four subjectstested were physics, chemistry, zoology and botany. The Court in thatcase held:

“We agree that the key-answer should be assumed to becorrect unless it is proved to be wrong and that it should notbe held to be wrong by an inferential process of reasoningor by process of rationalisation. It must be clearlydemonstrated to be wrong, that is to say, it must be such as-no reasonable body of men wellversed in the particularsubject would regard as correct.The contention of theUniversity is falsified in this case by large number ofacknowledged text-books, which are commonly read bystudents in U.P. Those text-books leave no room for doubtthat the answer given by the students is correct and the keyanswer is incorrect.

17. ...Certain books are prescribed for the IntermediateBoard Examination and such knowledge of the subjects asthe students have is derived from what is contained in thosetext-books. Those text-books support the case of the studentsfully. If this were case of doubt, we would haveunquestionably preferred the key answer. But if the matter isbeyond the realm of doubt, it would be unfair to penalise thestudents for not giving an answer which accords with thekey answer, that is to say, with an answer which is”demonstrated to be wrong.

12.Three propositions of law emerge from Kanpur University(supra), on the permissible extent of judicial review of an answer key.First, the answer key must be presumed to be correct and must befollowed, even in the face of mere doubt, second, only if keyanswer is demonstrably wrong, in the opinion of reasonable body ofpersons well-versed in the subject, it may be subject to judicial review,and third, if the answer key is incorrect beyond doubt, then acandidate cannot be penalised for answers at variance with the key.This position was reiterated in Manish Ujwal and Ors. v. MaharishiDayanand Saraswati University and Ors., (2005) 13 SCC 744 andDPS Chawla v. Union of India, 184 (2011) DLT 96.

13.The petitioner’s submission is that experts in the subject can sitin judgment over the answer key only if the question is such that itadmits of single, objective, demonstrably correct answer. Thechallenge in this case, however, appears to be that the two questionsdo not even fulfil this basic premise. In other words, the petitionerhere argues that the two questions admit of two demonstrably correctanswers.

14.This Court has considered the submissions. As regards series- Question 84, the petitioner’s submission was that it would beincorrect to suggest that the High Court cannot be considered “State”under Article 12, under any circumstances. This Court is notpersuaded by this argument. The DJS exam is concededly advertisedas Multiple Choice Examination, i.e. one in which every questionhas singledemonstrably correct answer. Thus, candidate, who

must be presumed to be aware of this, must attempt the examinationkeeping in mind the requirement of selecting an option as thesingularly, doubtlessly correct answer. It is clear that Chandra MohanKhanna v. NCERT, AIR 1992 SC 76 and Tekraj Vasandi v. Union ofIndia (1988) 1 SCC 236 hold that option (1) NCERT and option (2)the Institute of Constitutional and Parliamentary Studies, respectivelyare not “State” under Article 12. It is also clear that option (3) IndianOil Corporation has been unquestionably recognised as “State” inMahabir Auto Stores v. Indian Oil Corporation, (1990) 3 SCC 752. Sofar as option (4) i.e High Court of Delhi goes, it would be incorrect tosuggest, without qualification, that the High Court is “State” for thepurposes of Article 12. That it would be incorrect to suggest that theHigh Court is not State under Article 12 under all circumstances doesnot merit the inference that the High Court can unreservedlybeconsidered “State”. Without doubt, the High Court’s judicialactivities, while they are an integral part of the judicial power of theState, do not admit of inclusion as an act which falls within thedescription of Article 12 of the Constitution. The High Court is only“State” during exercise of its administrative and notjudicial powers.The High Court, or for that matter, other courts - manifest essentiallyjudicial power; the exercise of such power is not subject to reviewunder Article 32 of the Constitution. High Courts have not been set upunder the Constitution to primarily perform administrative tasks orduties. Option (4) then cannot be the correct answer withoutqualifying “High Court of Delhi” with the added criterion of “inexercise of administrative powers”. Contrasted with this, the IndianOil Corporation is, without doubt, unqualifiedly “State” for thepurposes of Article 12; candidate need not resort to any reasoning ofany kind to arrive at this conclusion. This Court is compelled toobserve that option (3) Indian Oil Corporation, therefore, cannot beconsidered to be demonstrably wrong, so as to merit reviewing theanswer key.

15.Likewise, with series - Question 130, the petitioner arguesthat the term “State Government” is nowhere used in the section,which merely contemplates that Public Prosecutor not appointed bythe Government needed Central Government’s permission beforewithdrawing prosecution. To quote from the writ petition, it issubmitted that:

“A bare perusal of this section and especially of Clause(3) and clause (4) clearly shows that nowhere the wordState Government is used in the section, the sectionmerely contemplates that when the Public Prosecutor hasnot been appointed by the Central Government, thePublic Prosecutor in such case has to withdraw thecase only with the permission of the Central Government,so the Public Prosecutor can be appointed by anyGovernment including Central Government or StateGovernment. Another important point to be kept in mindis this that Agencies like C.B.I. and N.l.A. can alsoappoint Special Counsels in certain cases, and they arenot necessarily appointed by the Central or StateGovernment.MoreoverinsuchacaseCentralGovernment can appoint its own Public Prosecutor, whowould be considered as Central Governments Prosecutor.

As per the above held discussion one can find that Section321 (4) merely contemplates situation where Public

Prosecutor is not appointed by the Central Government,it cannot in any way be seen as the Public Prosecutorappointed by the State Government. The provision is alsoa kind of Proviso in nature.

The answer as per the key is 3 but the correct abovequestion is incorrectly framed because even option 4 iscorrect and therefore objection is as to framing ofquestion and the options given in the question. As persection 321 of Cr. P.C. any Public Prosecutor canwithdraw the prosecution with permission of the, CentralGovernment and any direction issued by the CentralGovernment to withdraw the prosecution would in itselfinclude the permission of the Central Government.

In the light of above held discussion, option ‘4’ shouldalso be taken as the correct answer, instead of option‘3’only.”

16.This Court finds that this submission is both incoherent andcontrary to the position of law at hand. As pointed out by the HighCourt establishment, the response to this question is categorical andevident from the proviso to Section 321 which states the exception tothe rule that prosecutor must be uninfluenced by any Government, inhis/her decision to withdraw prosecution, if she or he is not appointedby the Central Government. If the case is one of misappropriation ofCentral Government property, the proviso requires that the prosecutormust have the permission of the Central Government, before seekingwithdrawal of prosecution. This Court is thus of the opinion that it isapparent, without adverting to any case law, that option (3) isdoubtlessly and demonstrably the correct answer here.

17.Pertinently, the aforesaid two questions do not provide multiplechoices of answers. The candidates had to choose only the mostappropriate answer. In contrast, there are several questions whichoffered multiple choices of answers. For example, Question Nos. 121and 126 provided:

“121.The categories of persons who may, without theirconsent be charged and tried together include personsaccused of

(1)different offences committed in the course of thesame transaction.same transaction.

(2)more than one offence of the same kind committedby them within the period of twelve months.by them within the period of twelve months.

(3)Neither (1) nor (2)

(4)Both (1) and (2)

XXXXXXXXXXXXXXXXXX

126. criminal court, at conclusion of trial, may order

(1)restoration of possession of immovable property tothe person who had been dispossessed therefrom byuse of criminal force or by criminal intimidation bythe person convicted.the person who had been dispossessed therefrom byuse of criminal force or by criminal intimidation bythe person convicted.

(2)the destruction of pornographic material in respectof which conviction was recorded.of which conviction was recorded.

(3)Both (1) and (2)

(4)Neither (1) nor (2)”

18.The petitioner’s submissions that the options picked by him arealso possible answers cannot, therefore, be accepted.

19.The High Court establishment argued that Court cannot directre-evaluation of answer sheets in absence of rules/regulations

permitting the same, drawing from Mukesh Thakur (supra). Theposition of law was crystallised in series of precedents beginningwith Maharashtra State Board of Secondary and Higher SecondaryEducation v. Paritosh Bhupesh Kumar Sheth, (1984) 4 SCC 27, inwhich the Court held that court cannot direct re-evaluation (bystriking down rules prohibiting it) on the ground that every student hasthe right to receive marks fairly and in manner commensurate to hisor her performance. The Court held that it could not create right ofinspection, disclosure, and re-evaluation of answer sheets in light ofthe express rule that forbade re-evaluation while only permittingverification of answer sheets (whether all questions have beenawarded marks and the marks have been totalled correctly, etc.) Undersimilar circumstances, the Court held in Pramod Kumar Srivastava v.Bihar Public Service Commission, (2004) 6 SCC 714 that in absenceof rule permitting re-evaluation, it could not direct re-evaluationgiven that safeguards are in place to ensure that answer books are nottampered with and that uniform method is used for marking all theanswer books of various candidates. Pertinently, it was observed thatif courts started directing re-evaluation, then candidates would startapproaching courts to “take chance” and seek re-evaluation throughwrit proceedings; courts would then direct individual answer booksback to the evaluation committee for second opinion, which wouldultimately add to delays in declaration of final results. Should somecandidates secure lower marks on re-evaluation, there would no rulesclearly stating whether the marks after re-evaluation would be binding,thus leading to an impractical situation in an area where the rules are

nebulous at best, and non-existent at worst. These are the reasons forwhich re-evaluation in particular is not permitted by Courts, where therules do not admit of such mechanism. The concern of the Courts inthese cases has been to prevent facilitating re-evaluation claimsrandomly and arbitrarily, by candidates who are willing to venture achance that their answers might receive higher marks than initiallyawarded. In these cases, there was neither an objective answer keywhich indicated the single, correct answer for each question, nor wasthere procedure by which candidates could apply for disclosure orinspection of their answer books, once marked, to check whether theywere unfairly denied marks, even after supplying the “correct answer”.

20.In matters of judicial review which involve examination ofacademic content and award of marks, the previous rulings of theSupreme Court and other authorities have cautioned circumspectapproach, leaving evaluation of merits to the expertise of academics.However, if the approach complained of falls within the traditionalparameters of judicial review – i.e illegality, irregularity; non-consideration ofmaterialfacts orconsideration ofextraneousconsiderations; or lack of bona fidesin the decision making process ascontrasted with the decision itself,the action or decision can becorrected in judicial review. The last category is where the decision isso manifestly and patently erroneous that no reasonable person,similarly circumstanced, could have taken it, the court wouldintervene. Maharashtra State Board of Secondary and HigherSecondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth

etc.etc. AIR 1984 SC 1543 is an authority for the proposition that thewisdom of the policy maker in regard to providing for re-valuation ordenying it, is not within the domain of the court in judicial review.This general circumspection in exercising power under Article 226 ofthe Constitution, even in matters where the subject matter fell withinthe expertise of the court (such as pertaining to law subjects, etc) wasspelt out in H.P. Public Servie Commission v Mukesh Thakur (2010)6 SCC 759. The said appeal was decided by the Supreme Court byjudgment dated 25.5.2010 as follows:

“In view of the above, it was not permissible for the HighCourt to examine the question paper and answer sheetsitself, particularly, when the Commission had assessedthe inter-se merit of the candidates. If there was adiscrepancy in framing the question or evaluation of theanswer, it could be for all the candidates appearing forthe examination and not for respondent no.1 only. It is amatter of chance that the High Court was examining theanswer sheets relating to law. Had it been other subjectslike physics, chemistry and mathematics, we are unable tounderstand as to whether such course could have beenadopted by the High Court..”

21.In this the Court is compelled to conclude that the question ofre-evaluation does not arise for consideration in the matter at hand,since the examination in question comprised only Multiple ChoiceQuestion (“MCQ”). What this writ petition seeks is declaration thatthe answer options provided in the MCQs admit of two possibleanswers, and are thus ambiguous. If Court were to find that the keyanswers are indeed incorrect, or that more than one key answer could

be correct, then there arises no question of “re-evaluation”. This isbecause such an examination with MCQs is premised on the basis thatthere is only one, objective, correct answer to every question. Asrecognised in Kanpur University (supra):

“18. … Fourthly, in system of 'Multiple Choice'-Objective type test, care must be taken to see thatquestions having an ambiguous import are not set in thepapers. That kind of system of examination involves-merely the tickmarking of the correct answer. It leaves''no scope for reasoning or argument. The answer is yes''or no.That is why the questions have to be clear andunequivocal.”

22.The very finding that key answer is not the objective, single,correct answer of the four options provided, and that another answer is“correct” according to those well-versed in the subject, itself wouldmerit the awarding of additional marks to candidates who had chosenthe latter answer. There arises no need to “evaluate” or examine aresponse of candidate for second time, since all candidates whohave answered in accordance with the answer key that the experts inthe field affirm, are automatically entitled to the award of additionalmarks. The precedents on re-evaluation are only applicable in thecontext of examinations which permit subjective written answers, andnot objective, multiple-choice questions that permit the selection ofjust one “correct” answer. There would be no infirmity in the approachof Court that directs reassessment, such as in Kanpur University(supra) itself, on the ground that the answer key is incorrect. In thepresent case, this court has recorded findings on each of the threequestions, to say that the answer keys used for correcting the question

papers used one single correct answer; the alternative options cannotbe said to be unambiguously clear answers, so as to result in confusionon the part of the examinee, who attempted the preliminary test.

23.For the above reasons, the writ petition is dismissed along withthe pending applications, without any order as to costs.

S. RAVINDRA BHAT(JUDGE)VIPIN SANGHI(JUDGE)SEPTEMBER 05, 2014