caselaws.org
Supreme Court of India
Uttar Pradesh Subordinate … vs Brijendra Pratap Singh on 14 December, 2021Author: K.M. Joseph
Bench: K.M. Joseph, Pamidighantam Sri Narasimha
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7720 OF 2021
(Arising out of SLP (C)No. 10914 of 2021)
UTTAR PRADESH SUBORDINATE SERVICE
SELECTION COMMISSION & ANR. Appellant(s)
VERSUS
BRIJENDRA PRATAP SINGH & ANR. Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
(1) Leave granted.
(2) In June, 2015, the appellant issued an advertisement
calling for applications for filling up the post of Gram
Panchayat Adhikari. The Minister 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 passed away on 09.02.2016.
(3) In the examination, question No. 46 was as follows:
Signature Not Verified
Digitally signed by
“46. Presently who is the Panchayati Raj Minister in
Nidhi Ahuja
Date: 2021.12.18
11:21:03 IST
Uttar Pradesh?
Reason:
A. Sh. Shivpal Yadav
1
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
B. Sh. Kailash Yadav
C. Sh. Balram Yadav
D. Sh. Durga Prasad Yadav”
(4) The answer key came to be published on 25.02.2016. As
is clear 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, Shri Kailash Yadav whose name is shown
as the correct answer in terms of Option B had passed away
and therefore, Option B would not be correct answer. In
fact this was an uncontemplated event as can be seen with
the benefit of hindsight. The appellant Commission,
accordingly, took the following decision on 29.03.2016:
Sl. Issue for Decision
No. consideration
01 Regarding objections “During review/scrutiny of
raised by candidates objections raised by the
against answer given candidates against answer keys
in answer keys of the of written examination of Gram
question paper of Panchayat Adhikari (General
written examination Selection) Examination-2015 held
of Gram Panchayat on 21 February, 2016 (Sunday),
Adhikari (general this face came to notice that
Selection) the correct option of answer of
Examination, 2015 one question (Set A-55, Set B-
45, Set C-46 and Set D-63) is
Shri Kailash Yadav, Panchayati
Raj Minister of Uttar Pradesh
State (Option-’B’), had Shri
Yadav not expired on 09th
February, 2016 i.e. prior to the
date of written examination,
i.e. 21 February, 2016.
01 (one) mark is fixed for each
question. In the position
explained, after due
2
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
consideration, it was
unanimously decided that the
candidates who have chosen
option (‘B’) as correct answer
or did not mark any option for
the said question be awarded
01(one) mark and no action is
required in respect of the
candidates who have chosen
option A, C, D as the correct
answer of this question.
(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 up the vacancies. The
respondent was a candidate in the said examination. In
regard to question No. 46, he offered option No. A. He
secured 86 marks. The cut off marks for the category to
which the respondent belonged (OBC) was 87. He fell short
of the required cut off by one mark. He filed a writ
petition which has finally culminated in the present appeal.
The prayer sought for in the said writ petition may be
noticed:
“It is, therefore, most respectfully prayed that
this Hon’ble Court may graciously be pleased to:-
A. Issue a writ, order or direction in the
nature of writ of Mandamus directing and commanding
the respondent nos. 2 & 3 to award the mark of
question no. 46 of Booklet Series ‘C’ to the
petitioner and prepare a fresh select list.
B. Issue a writ, order or direction in the
nature of writ of Mandamus directing the respondent
no.2 and 3 to consider the candidature of the
petitioner as selected candidate or petitioner may
be adjusted on the post of Gram Panchayat Adhikari
in Gram Panchayat Adhikari (General Selection)
3
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
Examination-2015 (Advertisement no. 7(3)/2015.
C. Issue any other writ, order or direction
which this Hon’ble Court may deem fit and proper
under the circumstances of the case, so as to secure
the ends of justice or else, the Petitioners shall
suffer irreparably.
D. To Award the cost of the petition to the
petitioners.”
(6) Learned Single Judge did not find merit in the
contention of the 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 the view that the ‘case at hand is not
having any dispute that all the options of question no. 46
were incorrect on the date of the selection test which was
due to the sad demise of the then minister’. Awarding of
marks to those who did not give the answer to question
cannot be accepted to be proper. So also the answer of
marking option of Shri Kailash Yadav to be Minister it was
found. The Division Bench proceeded to direct the appellant
to take a decision to either delete question no. 46 of
booklet series ‘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 action as per merit position.
(8) We have heard learned counsel appearing on behalf of
the appellant and learned counsel appearing on behalf of the
4
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
respondent.
(9) Learned counsel appearing on behalf of the appellant
would contend that the direction to delete question no. 46
would cause serious prejudice. On the basis of the
selection which commenced in the year 2015 and after the
examination took place on 21.02.2016 in regard to which
results were published on 24.12.2016 and pursuant to which,
appointments of number of candidates stood materialised
would have to be reworked. Learned counsel for the
appellant, no doubt, drew support from the view taken by the
judgment of this Court in Kanpur University Through Vice-
Chancellor v. Samir Gupta (1983) 4 SCC 309. It is his
contention that the view taken by the appellant Commission
cannot be characterised as palpably perverse. When arriving
at such a finding, it may not be open in judicial review
proceedings to substitute the view taken by the examining
body. He would further justify the rationale in the
following manner. It was pointed out that so far as the
decision to award marks to those candidates who answered
question no. 46 by approving option ‘B’ which is Shri
Kailash Yadav, candidates were given the benefit, as the
Commission, apparently, was of the view that the said person
was indeed the minister and the answer would have been
correct but for his passing away just 12 days prior to the
date of the examination. As far as those candidates who did
5
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
not attempt to answer the question concerned, the Court is
persuaded to take the view that noticing that all the
answers to the question were as on the date of the
examination not correct, if a candidate did not answer the
question, it should not work against him. This is in stark
contrast with the case of the respondent who has
undoubtedly, ticked option ‘A’ which at no point of time
could be treated as the correct answer. In other words, the
case of the respondent stands on a different footing from a
candidate who has given an answer which clearly is palpably
wrong. In such circumstances, he would commend for our
acceptance the principle that in 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
6
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
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
7
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
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
8
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
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 appellant’s 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
9
CA No. 7720/ 2021 (@ SLP (C)No. 10914/ 2021)
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.
(15) In such circumstances, we are of the view that, in the
facts of this case, the appellant has made out a case for
interference. Appeal is allowed and the impugned judgment
stands set aside.
No orders as to costs.
…………………………………………………………………………………., J.
[ K.M. JOSEPH ]
…………………………………………………………………………………., J.
[ PAMIDIGHANTAM SRI NARASIMHA ]
New Delhi;
December 14, 2021.
10
Comments