# Abhishek Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 737
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-25
- **Case number:** Special Appeal Defective No. 343 of 2021
- **Bench:** Munishwar Nath Bhandari, A.C.J. Anil Kumra Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-srivastava-ors-v-state-of-u-p-ors-46674
- **Pages:** 10

## Headnote

Law
-
Education
-
Appointment/Selection
-
Challenge
to
answer key - The writ petitions were filed to
challenge the answer key published on 5.8.2020
in reference to the examination conducted on
6.1.2019. It was for the selection on the post of
Assistant Teacher. Taking into consideration the
limited jurisdiction of the High Court, the learned
Single Judge did not find a case for acceptance of
the arguments for challenge to the answer key.
Present appeals have been preferred to challenge
the judgment and have been pressed by the
appellants in reference to correctness of the
answer of six questions leaving others. In one
appeal, argument has been raised in reference to
two questions alleging them to be out of syllabus.
(Para 5, 6)
Jurisdiction of this Court to examine the
correctness of the answer - After the judgment
in the case of Ran Vijay Singh (infra), the
jurisdiction of this Court is very limited in the
case.

The law on the subject is quite clear and few
significant conclusions are: (Para 7)

(i) If a statute, Rule or Regulation governing an
examination permits the re-evaluation of an answer
sheet or scrutiny of an answer sheet as a matter of
right, then the authority conducting the examination
may permit it;

(ii) If a statute, Rule or Regulation governing
an examination does not permit re-evaluation
or scrutiny of an answer sheet (as distinct from
prohibiting it) then the Court may permit reevaluation or scrutiny only if it is demonstrated
very clearly, without any "inferential process of
reasoning or by a process of rationalisation"
and only in rare or exceptional cases that a
material error has been committed; (Para 7, 8,
13, 17)

(iii) The Court should not at all re-evaluate or
scrutinize the answer sheets of a candidate - it
has no expertise in the matter and academic
matters are best left to academics;

(iv) The Court should presume the correctness
of the key answers and proceed on that
assumption; and (Para 7, 9)

(v) In the event of a doubt, the benefit should
go to the examination authority rather than to
the candidate. (Para 7, 9, 19, 23, 31, 34)

The Hon'ble Court observes that only one question
(Question No. 60) out of 6, deserves consideration
and a prima facie case is made out by the appellants
as none of the options provided the correct answer,
but for the remaining 5 questions appeals would be
governed by the judgment of the Apex Court in the
case of Ran Vijay Singh (infra). (Para 35, 37, 42)

As far as 2 questions being out of syllabus are
concerned Court observed that according to the
appellants, both the questions were not falling in the
subject of Chemistry and, therefore, they were out of
syllabus but the fact that syllabus was not only having
subject of Chemistry but 'General Science and Science
738 INDIAN LAW REPORTS ALLAHABAD SERIES
in Daily Life' and both the questions are covered by
that topic. Thus, Court held that concerned questions
(Question Nos. 71 and 79) were not out of syllabus
and respondents cannot be directed to ignore both
the questions. (Para 36)

B. It is stated that selections have already been
finalized followed by appointments but merely for
that reason, the candidates having a case in their
favour cannot be deprived to get benefit. Keeping in
mind that selections have already been completed
followed by appointments, direction in these appeals
would apply only to those candidates who have raised the
issue by maintaining a writ by now and not to any other
candidate. The benefit to the candidates therein also
would be if they are short of one mark because the value
of each question is of one mark. If with award of one
mark to any of the litigants till date before Allahabad High
Court, they find place in the merit, then the respondents
would give them appointment, subject to satisfaction of
other conditions, if any. If any of the litigant till date are
short by two marks in the merit, they would not be
entitled to any benefit of this judgment. (Para 38

## Text

11 All. Abhishek Srivastava & Ors. Vs. State of U.P. & Ors.
737
Seriousness of the crime being self-evident and
apparent and as we have considered the same,
none of the grounds raised by the appellant's
counsel before us persuade us to take any other
view of the matter.

12. Accordingly, we dismiss this appeal.
----------
(2021)11ILR A737
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE MUNISHWAR NATH BHANDARI,
A.C.J.
THE HON'BLE ANIL KUMRA OJHA, J.

Special Appeal Defective No. 343 of 2021
connected with other cases

Abhishek Srivastava & Ors. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Santosh Kumar Tripathi, Sri Naresh Chandra
Rajvanshi(Senior Advocate)

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Education
-
Appointment/Selection
-
Challenge
to
answer key - The writ petitions were filed to
challenge the answer key published on 5.8.2020
in reference to the examination conducted on
6.1.2019. It was for the selection on the post of
Assistant Teacher. Taking into consideration the
limited jurisdiction of the High Court, the learned
Single Judge did not find a case for acceptance of
the arguments for challenge to the answer key.
Present appeals have been preferred to challenge
the judgment and have been pressed by the
appellants in reference to correctness of the
answer of six questions leaving others. In one
appeal, argument has been raised in reference to
two questions alleging them to be out of syllabus.
(Para 5, 6)
Jurisdiction of this Court to examine the
correctness of the answer - After the judgment
in the case of Ran Vijay Singh (infra), the
jurisdiction of this Court is very limited in the
case.

The law on the subject is quite clear and few
significant conclusions are: (Para 7)

(i) If a statute, Rule or Regulation governing an
examination permits the re-evaluation of an answer
sheet or scrutiny of an answer sheet as a matter of
right, then the authority conducting the examination
may permit it;

(ii) If a statute, Rule or Regulation governing
an examination does not permit re-evaluation
or scrutiny of an answer sheet (as distinct from
prohibiting it) then the Court may permit reevaluation or scrutiny only if it is demonstrated
very clearly, without any "inferential process of
reasoning or by a process of rationalisation"
and only in rare or exceptional cases that a
material error has been committed; (Para 7, 8,
13, 17)

(iii) The Court should not at all re-evaluate or
scrutinize the answer sheets of a candidate - it
has no expertise in the matter and academic
matters are best left to academics;

(iv) The Court should presume the correctness
of the key answers and proceed on that
assumption; and (Para 7, 9)

(v) In the event of a doubt, the benefit should
go to the examination authority rather than to
the candidate. (Para 7, 9, 19, 23, 31, 34)

The Hon'ble Court observes that only one question
(Question No. 60) out of 6, deserves consideration
and a prima facie case is made out by the appellants
as none of the options provided the correct answer,
but for the remaining 5 questions appeals would be
governed by the judgment of the Apex Court in the
case of Ran Vijay Singh (infra). (Para 35, 37, 42)

As far as 2 questions being out of syllabus are
concerned Court observed that according to the
appellants, both the questions were not falling in the
subject of Chemistry and, therefore, they were out of
syllabus but the fact that syllabus was not only having
subject of Chemistry but 'General Science and Science
738 INDIAN LAW REPORTS ALLAHABAD SERIES
in Daily Life' and both the questions are covered by
that topic. Thus, Court held that concerned questions
(Question Nos. 71 and 79) were not out of syllabus
and respondents cannot be directed to ignore both
the questions. (Para 36)

B. It is stated that selections have already been
finalized followed by appointments but merely for
that reason, the candidates having a case in their
favour cannot be deprived to get benefit. Keeping in
mind that selections have already been completed
followed by appointments, direction in these appeals
would apply only to those candidates who have raised the
issue by maintaining a writ by now and not to any other
candidate. The benefit to the candidates therein also
would be if they are short of one mark because the value
of each question is of one mark. If with award of one
mark to any of the litigants till date before Allahabad High
Court, they find place in the merit, then the respondents
would give them appointment, subject to satisfaction of
other conditions, if any. If any of the litigant till date are
short by two marks in the merit, they would not be
entitled to any benefit of this judgment. (Para 38, 40, 41)

Appeals disposed off. (E-4)

Precedent followed:

1. Ran Vijay Singh & ors. Vs St. of U.P. & ors., (2018)
2 SCC 357 (Para 7)

Present appeal challenges judgment and order
dated 07.05.2021, passed by learned Single
Judge.

(Delivered by Hon'ble Munishwar Nath
Bhandari, A.C.J.
&
Hon'ble Anil Kumar Ojha, J.)

 1. Exemption application is allowed in all
the appeals.

2. The appellants are exempted from filing
certified copy of the impugned judgment and
order dated 07.05.2021 passed by the learned
Single Judge.

3. Heard Sri Vishesh Rajvanshi, Sri
Satyendra Chandra Tripathi, Amit Kumar Singh
Bhadauriya, Sri Arun Kumar Dubey, Sri Ritesh
Srivastava, Sri Navin Kumar Sharma, Sri
Anurag Agrahari, Sri Rahul Kumar Mishra, Sri
Seemant Singh, Sri Sidharth Mishra, Sri Ram
Chandra Solanki, Sri Javed Raza, Sri Anurag
Tripathi, Sri Surendra Nath Chauhan, Sri Satya
Prakash Singh, Sri Ashok Kumar Dwiwedi, Sri
Shiv Sagar Singh and Sri Chetan Chatterjee,
learned counsels for the appellants and Sri M.C.
Chaturvedi,
learned
Additional
Advocate
General, Sri Suresh Singh, learned Additional
Chief Standing Counsel, Sri Pankaj Rai, learned
learned Additional Chief Standing Counsel, Sri
Rajiv Singh, learned learned Standing Counsel
for the respondent-State.

4. By this batch of appeals, challenge is
made to the judgment dated 07.05.2021 by
which the batch of writ petitioners was
dismissed.

5. The writ petitions were filed to
challenge
the
answer
key
published
on
05.08.2020 in reference to the examination
conducted on 06.01.2019. It was for the
selection on the post of Assistant Teacher. It was
pursuant to the notification dated 01.12.2018 to
invite applications for the selection. The batch of
writ petitions in these appeals was in second
round of litigation to challenge the answers
selected by the respondents. The first bunch of
writ petitions was decided by a detailed order.
The learned Single Judge, however, considered
the arguments again in reference to challenge to
the correctness of the answers selected by the
respondents.

6. Taking into consideration the limited
jurisdiction of the High Court, the learned Single
Judge did not find a case for acceptance of the
arguments for challenge to the answer key.
These appeals have been preferred to challenge
the judgment and has been pressed by the
appellants in reference to correctness of the
answer of six questions leaving others. In one
11 All. Abhishek Srivastava & Ors. Vs. State of U.P. & Ors.
739
appeal, argument has been raised in reference to
two questions alleging them to be out of
syllabus.

7. The first issue for our consideration
would be about jurisdiction of this Court to
examine the correctness of the answer. The legal
position in that regard is elaborately dealt with
by the Apex Court in catena of judgments and
for that recent judgment is the case of 'Ran
Vijay Singh and others vs. State of U.P and
others' (2018) 2 SCC 357. The Apex Court has
referred the earlier judgments and summarized
the legal proposition in the following terms:

"30. The law on the subject is
therefore, quite clear and we only propose to
highlight a few significant conclusions. They
are: (i) If a statute, Rule or Regulation
governing an examination permits the reevaluation of an answer sheet or scrutiny of an
answer sheet as a matter of right, then the
authority conducting the examination may
permit it; (ii) If a statute, Rule or Regulation
governing an examination does not permit reevaluation or scrutiny of an answer sheet (as
distinct from prohibiting it) then the Court may
permit re-evaluation or scrutiny only if it is
demonstrated
very
clearly,
without
any
"inferential process of reasoning or by a
process of rationalisation" and only in rare or
exceptional cases that a material error has
been committed; (iii) The Court should not at
all re-evaluate or scrutinize the answer sheets
of a candidate - it has no expertise in the
matter and academic matters are best left to
academics; (iv) The Court should presume the
correctness of the key answers and proceed on
that assumption; and (v) In the event of a
doubt, the benefit should go to the examination
authority rather than to the candidate.

31. On our part we may add that
sympathy or compassion does not play any role
in the matter of directing or not directing reevaluation of an answer sheet. If an error is
committed by the examination authority, the
complete body of candidates suffers. The entire
examination process does not deserve to be
derailed only because some candidates are
disappointed or dissatisfied or perceive some
injustice having been caused to them by an
erroneous question or an erroneous answer. All
candidates suffer equally, though some might
suffer more but that cannot be helped since
mathematical precision is not always possible.
This Court has shown one way out of an impasse
- exclude the suspect or offending question.

32. It is rather unfortunate that despite
several decisions of this Court, some of which
have been discussed above, there is interference
by the Courts in the result of examinations. This
places the examination authorities in an
unenviable position where they are under
scrutiny and not the candidates. Additionally, a
massive and sometimes prolonged examination
exercise concludes with an air of uncertainty.
While there is no doubt that candidates put in a
tremendous
effort
in
preparing
for
an
examination, it must not be forgotten that even
the examination authorities put in equally great
efforts to successfully conduct an examination.
The enormity of the task might reveal some lapse
at a later stage, but the Court must consider the
internal checks and balances put in place by the
examination authorities before interfering with
the efforts put in by the candidates who have
successfully participated in the examination and
the examination authorities. The present appeals
are a classic example of the consequence of such
interference where there is no finality to the
result of the examinations even after a lapse of
eight years. Apart from the examination
authorities
even
the
candidates
are
left
wondering about the certainty or otherwise of
the result of the examination - whether they have
passed or not; whether their result will be
approved or disapproved by the Court; whether
they will get admission in a college or
University or not; and whether they will get
recruited or not. This unsatisfactory situation
740 INDIAN LAW REPORTS ALLAHABAD SERIES
does not work to anybody's advantage and such
a state of uncertainty results in confusion being
worse confounded. The overall and larger
impact of all this is that public interest suffers".

8. The judgment in the case of Ran Vijay
Singh (supra) was given after referring to the
earlier judgments wherein it was held that the
answer key should be assumed to be correct
unless it is proved to be wrong with strong
reasoning
based
on
material.
It
should
demonstrated very clearly to be wrong that is to
say, it must be such that no reasonable person
would accept the answers selected by the
examining body. The learned Single Judge has
considered the judgment aforesaid in detail and
otherwise we find that after the judgment in the
case of Ran Vijay Singh (supra), the
jurisdiction of this Court is very limited in the
case.

9. With the aforesaid, we would like to
examine the questions against which objections
have been raised but keeping in mind the ratio
propounded by the Apex Court in the case of
Ran Vijay Singh (supra) and more specifically
para 30 of the said judgment quoted above. As
per the judgment of the Apex Court in the case
of Ran Vijay Singh (supra), Court is to presume
the correctness of answer key and proceed on
that assumption. In the event of any doubt,
benefit should go to the examination authority
rather than to the candidate. It is with a rider that
the Court should not re-evaluate or scrutinize the
answer-sheet of the candidate as it has no
expertise in the matter. The academic matters
are best left to the academics.

10. The first question on which doubts has
been raised is Question No. 47. Learned counsel
for the appellants submit that option No.1 was
wrongly taken to be the correct answer to
Question no. 47. According to the appellants,
option No.3 or option No.4 was the correct
answer. To examine the issue aforesaid, question
No. 47 with four options is quoted as under:

"47. In India, poverty is estimated on
the basis of;

(1)
household
consumption
expenditure

(2) per capita income

(3) per capita expenditure

(4) None of the above"

11. According to the appellants, option
No.3 is the correct answer and few appellants
have preferred option No. 4 to be correct. They
have produced material to reflect that correct
answer is option No.3 i.e. "per capita
expenditure"' or "none of the above". We would
be referring to the material relied by the
appellants. The material relied by the appellant
does not clearly show option No.3 or 4 to be
correct. The expert has also given its opinion
about the correctness of option No.1. As far as
the appellants are concerned, they have relied on
extracts of certain books which is Class 9th
Secondary Education Textbook and N.C.E.R.T.
Textbook-2017. The extract of both the books is
quoted hereunder:-

"कनधानता रेखा

वनर्दनता पर चचाद केंद्र में सामान्यतया
'वनर्दनता रेिा' की अिर्ारणा ह ती है। वनर्दनता के
आकलन की एक सिदमान्य सामान्य विवर् आय अथिा
उपभ ग स्तर ों पर आर्ाररत है। वकसी व्यक्तक्त क
वनर्दन माना जाता है यवर् उसकी आय या उपभ ग
स्तर वकसी ऐसे 'न्यूनतम स्तर' से नीचे वगर जाए ज
मूल आिश्यकताओों के एक वर्न हुए समूह क पूणद
करने के वलए आिश्यक है। मूल आिश्यकताओों क
पूणद करने के वलए आिश्यक िस्तुएूँ विवभन्न काल ों एिों
विवभन्न र्ेि ों में वभन्न है। अतः काल एिों स्थान के
अनुसार वनर्दनता रेिा वभन्न ह सकती है प्रत्येक र्ेि
एक काल्पवनक रेिा का प्रय ग करता है, वजसे
विकास एिों उसके स्वीकृत न्यूनतम सामावजक
11 All. Abhishek Srivastava & Ors. Vs. State of U.P. & Ors.
741
मानर्ोंड के ितदमान स्तर के अनुरूप माना जाता है।
उर्ाहरण के वलए, अमेररका में उस आर्मी क वनर्दन
माना जाता है वजसके पास कार नहीों है, जबवक भारत
मे अब भी कार रिना विलावसता मानी जाती है।

भारत मे वनर्दनता रेिा का वनर्ादरण करते
समय जीिन वनिादह के वलए िाद्य आिश्यकता,
कपड ों, जूत ों, ईर्न और प्रकाि, िैवक्षक एिों वचवकत्सा
सोंिोंर्ी आिश्यकताओों आवर् पर विचार वकया जाता
है। इन भौवतक मात्राओों क रूपय ों में उनकी कीमत ों
से गुणा कर वर्या जाता है। वनर्दनता रेिा का आकलन
करते समय िाद्य आिश्यकता के वलए ितदमान सूत्र
िाोंवछत कैल री आिश्यकताओों पर आर्ाररत है। िाद्य
िस्तुएूँ जैसे- अनाज, र्ालें, सक्तियाूँ, र्ूर्, तेल, चीनी
आवर् वमलकर इस आिश्यक कैल री की पूवतद करती
हैं। आयु, वलोंग, काम करने की प्रकृवत आवर् के आर्ार
पर कैल री आिश्यकताएूँ बर्लती रहती है। भारत में
स्वीकृत कैल री आिश्यकता ग्रामीण क्षेत्र ों मे 2400
कैल री प्रवतव्यक्तक्त प्रवतवर्न एिों नगरीय क्षेत्र ों में 2100
कैल री प्रवत व्यक्तक्त प्रवतवर्न है। चूूँवक ग्रामीण क्षेत्र ों में
रहने िाले ल ग अवर्क िारीररक कायद करते हैं, अतः
ग्रामीण क्षेत्र ों में कैल री आिश्यकता िहरी क्षेत्र ों की
तुलना में अवर्क मानी गई है। अनाज आवर् के रूप में
इन कैल री आिश्यकताओों क िरीर्ने के वलए
प्रवतव्यक्तक्त मौवद्रक व्यय क , कीमत ों में िृक्तद्ध क ध्यान
में रिते हुए, समय-समय पर सोंि वर्त वकया जाता
है।

इन पररकल्पनाओों के आर्ार पर िषद
2011-12 में वकसी व्यक्तक्त के वलए वनर्दनता रेिा का
वनर्ादरण ग्रामीण क्षेत्र ों में 816 रूपये प्रवतमाह और
िहरी क्षेत्र ों में 1000 रूपये प्रवतमाह वकया गया था।
कम कैल री की आिश्यकता के बािजूर् िहरी क्षेत्र ों
के वलए उच्च रावि वनवश्चत की गई, क् वक िहरी क्षेत्र ों
में अनेक आिश्यक िस्तुओों की कीमतें अवर्क ह ती
है। इस प्रकार, िषद 2011-12 में ग्रामीण क्षेत्र ों में रहने
िाला पाूँच सर्स्य ों का पररिार वनर्दनता रेिा के नीचे
ह गा, यवर् उसकी आयु लगभग 4,080 रूपये
प्रवतमाह से कम है इसी तरह के पररिार क िहरी
क्षेत्र ों में अपनी मूल आिश्यकताएूँ पूरा करने के वलए
कम से कम 5,000 रूपये प्रवतमाह की आिश्यकता
ह गी। वनर्दनता रेिा का आकलन समय-समय पर
(सामान्यतः हर पाूँच िषद पर) प्रवतर्िद सिेक्षण के
माध्यम से वकया जाता है। यह सवेक्षण राष्टरीय
प्रकतिशा सवेक्षण संगठन अथादत नेिनल सैंपल सिे
ऑगदनाईजेिन (एन.एच.एस.ओ.) द्वारा कराए जाते है,
तथावप विकासिील र्ेि के बीच तुलना करने के वलए
विश्व बैंक जैसे अनेक अोंतरादष्टरीय सोंगठन वनर्दनता रेिा
के वलए एक समान मानक का प्रय ग करते है, जैसे
SI.9 (2011 पी.पी.पी.) प्रवतव्यक्तक्त प्रवतवर्न के
समतुल्य न्यूनतम उपलब्धता के आर्ार पर। "

12. As against it, the respondents have
relied on a book written by P.K. Dhar. The
relevant portion of that book is also quoted
hereunder:-

"While
fixing
the
poverty
line,
consumption of food is considered as the most
important criteria but along with it some non
food items such as clothing and shelter are also
included.

However, in India we determine our
poverty line on the basis of private consumption
expenditure for buying both food and non-food
items. Thus it is observed that in India, poverty
line is the level of private consumption
expenditure which normally ensures a food
basket that would ensure the required amount of
calories."

13. Perusal of the material relied by the
appellants does not show an error on the face of
it. The opinion of the expert is in favour of the
examination authority. We have referred the
judgment of the Apex Court defining the
jurisdiction of the High Court for causing
interference in the answers set by the examining
body followed by an expert opinion. The Courts
are having very limited jurisdiction. The
interference in the answer can be made when it
is palpably wrong. We do not find answer to
Question No. 47 selected by the examining body
to be wrong on the face of it. The opinion of
742 INDIAN LAW REPORTS ALLAHABAD SERIES
expert can not otherwise be ignored by the High
Court unless material brought by party shows
opinion to be wrong. The material relied by the
expert shows basis to select answer No.1 to be
correct. It shows per capita expenditure to be
basis to estimate the poverty. Thus, we are
unable to accept the argument of learned counsel
for the appellants in regard to correctness of
answer of Question No. 47.

14. The next question is Question No. 48
and the same is quoted hereunder:

"48. Who among the following was the
first President of the Constituent Assembly of
India?

(1) Dr. Sachchidananda Sinha

(2) Dr. Rajendra Prasad

(3) Dr. B.R. Ambedkar

(4) Prof. H.C. Mookerjee"

15. The answer selected by the examining
body is option No.1. According to the appellants,
option No.2 is the correct answer. It is submitted
that Dr. Rajendra Prasad was the first President of
the Constituent Assembly of India. The appellants
had rightly opted for option No.2 as the correct
answer. The respondents have wrongly taken
option No. 1 to the aforesaid question to be the
correct answer.

16. Both the parties have produced
materials to press their argument. The issue
aforesaid has otherwise been considered by the
learned Single Judge and found Dr. Sachhidanand
Sinha to be the first President of Constituent
Assembly of India. It was only for some time and
the first permanent President of Constituent
Assembly of India was Dr. Rajendra Prasad. It is
not in dispute that the charge of the post of the
President of Constituent Assembly of India was
first held by Dr. Sachhidanand Sinha. In view of
the above, the option selected by the respondents
cannot be said to be erroneous on the face of
record. At this stage, learned counsel for the
appellant made reference of the material to show
that State Government itself selected option No. 2
to be the correct answer in subsequent
examination. The answer to one and the same
question could not have been two different
answers in different selections. A reference of the
information collected under Right to Information
Act, 2005 from the Parliament has also been
given. The first President of Constituent
Assembly of India is shown to be Dr. Rajendra
Prasad.

17. We have considered the submissions of
the respective parties and find that the post of the
President of Constituent Assembly of India was
held by Dr. Sachhidanand Sinha and it was
thereafter taken by Dr. Rajendra Prasad. The
difference pointed out by the respective parties is
that Dr. Sachhidanand Sinha was the first President
of Constituent Assembly of India only for a small
period while the first President of Constituent
Assembly of India for five years was Dr. Rajendra
Prasad. The perusal of the question does not refer
to as to who was the first permanent President of
Constituent Assembly of India. Accordingly, the
answer selected by the respondents cannot be said
to be palpably wrong.

18. The information received by the
appellants from the Parliament in reference to
the first President of Constituent Assembly of
India. It may be ignoring the period of
presidentship of Dr. Sachhidanand Sinha. In any
case, the question was not as to who was the first
President of Constituent Assembly of India for
five years. It may be a case of doubt about the
answer selected by the examination authority.

19. In view of the judgment of the Apex
Court in the case of Ran Vijay Singh (supra),
benefit of doubt is to be given to the
examination authority. Thus, we are unable to
accept the argument of learned counsel for the
appellant to interfere in the finding of the
learned Single Judge.
11 All. Abhishek Srivastava & Ors. Vs. State of U.P. & Ors.
743

20. The other question is Question No. 54
and is quoted hereunder for ready reference:

"54. Disability to read and write is;

(1) autism

(2) dyslexia

(3) dyspraxia

(4) apraxia"

21. The material has been produced by the
appellant to show that option No.3 selected by
the respondents was not correct rather none of
the answers were correct. Learned counsel for
the appellant have made reference of C.B.S.E.
handbook of Inclusive Education, 2020 apart
from Diploma Hand Book and Physical
Education Class 11 Handbook. The reference of
question papers of different courses have also
been given.

22. The word "dyslexia" means reading
disorder and not writing whereas the answer
selected by the examination authority is
disability to read and write. As against the
material referred by the appellants, respondents
have referred to a book published by ''White
Swan Foundation'. There, "dyslexia" is reflected
to be disability to read and write. The expert
opinion also shows "dyslexia" to be disability of
reading and writing.

23. In view of the above, we would go with
the expert opinion in the light of the judgment of
the Apex Court in the case of 'Ran Vijay Singh
and others vs. State of U.P and others' 2018
(2) SCC 357. It lays down the parameters for the
Courts for exercise of the jurisdiction. Para 30 of
the judgment (supra) has been quoted earlier and
cover the issue. In case of doubt, benefit has to
be given to the examiner and accordingly we do
not find any reason to cause interference in the
finding of the learned Single Judge in reference
to answer to Question No. 54.

24. Now comes Question No. 60 and is
quoted hereunder:

"60.
Educational
administration
provides appropriate education to appropriate
student by appropriate teacher by which they
can able to become the best by using available
maximum resources" This definition is given by;

(1) S.N. Mukherjee

(2) Carnbell

(3) Welfare Grahya

(4) Dr. Atmanand Mishra"

25. The answer selected by the respondents
is option no.3 whereas none of the answer is
correct, according to the appellants. The material
used by the expert and produced even by the
respondents shows that name of the author is not
correctly mentioned. The name of the author is
"Graham Balfour" whereas it is mentioned as
"Welfare Grahya". In view of the aforesaid,
learned counsel for the appellants submit that
option No.3 was wrongly selected by the
respondents to be the correct answer. The
material relied by the appellants is the
Educational
Administration
and
Health
Education. Relevant part of the document is
quoted hereunder:

"Educational administration is to enable
the right pupils to receive the right education
from the right teachers, at a cost within the
means of the state under conditions which will
enable the pupils best to profit by their trainingGraham Belfour"

26. It is also Educational Administration
handbook by Graham Balfour and the same is
also quoted hereunder:
"Graham Balfour
Educational Administration
Two Lectures Delivered Before the University of
Birmingham in February, 1921"
744 INDIAN LAW REPORTS ALLAHABAD SERIES

27. Learned counsel for the non-appellant
could not contest the issue. It is submitted that
the correct answer to Question No. 60 is
''Graham Balfour' and answer No. 3 is close to
the aforesaid, thus, taken it to be the correct
answer. We find that correct name of the author
has not been given in any of the option. In those
circumstances, respondents could not have taken
option No.3 to be the correct answer when the
name of the author is "Graham Balfour" and not
"Welfare Grahya".

28. In view of the aforesaid, we find
substance in the argument of learned counsel for
the appellants as otherwise it could not be
contested by the non-appellant looking to the
name given in option No.3, different than the
name exist in the books even referred by the
expert. During the course of argument also, the
material relied by the respondents shows the
correct name to be "Graham Balfour" whereas
the option taken by the respondents is "Welfare
Grahya". The selection of option No.3 suffers
from the error on the fact of it thus, could not be
contested by the non-appellant and, therefore,
we cause interference in the judgment of the
learned Single Judge in regard to answer to
Question No.60. The appropriate direction
would be given at the end of the judgment in
reference to Question No.60.

29. The dispute on the answer to Question
No.106 has also been raised and for ready
reference, it is quoted hereunder:

"106. Who was the originator of a cult
named ''Nath Panth'?

(1) Matsyendranath

(2) Gorakhnath

(3) Shri Nath

(4) Vasav"

30. The correct answer selected by the
respondents was option No.1 whereas according
to the appellants, option No.2 is the correct
answer. Learned counsel for the appellants has
made reference to the Lecturer Screening Exam2018 to show "Gorakhnath" to be the originator
of Nath Panth. The other material referred by
them also shows "Gorakhnath" to be the
originator
as
against
the
aforesaid,
the
respondents have also referred a book where the
originator of Nath Panth is shown to be
"Matsyendranath".

31. In view of the above, both the parties
could refer to the material to show their answers
to be correct. The material produced by the
respondents shows option No.1 of the answer
key to be correct while the material produced by
the appellants shows option No. 2 to be the
correct answer. According to the expert, the
correct answer is "Matsyendranath" in reference
to the book relied by him. In view of the
materials produced by both the parties, issue
remains under doubt but in view of the judgment
of the Apex Court in the case of Ran Vijay
Singh (supra), we would accept the opinion
given by the expert by extending benefit of
doubt to the examiner. Accordingly, we do not
find reason to cause interference in the finding
recorded by the learned Single Judge.

32. The answer to Question No. 111 is also
required to be examined and accordingly the
said question is also quoted hereunder:

"111. Central Glass and Ceramic
Research Institute is located at:-

(1) Agra

(2) Khurja

(3) Kanpur

(4) Ferozabad"

33. The question quoted above refers to
Central Glass and Ceramic Research Institute
(hereinafter referred to as "Institute"). The
correct answer taken by the respondents is
option No.2 as a unit of the Institute exist at
Khurja, Bulandshahar while the headquarter of
11 All. Abhishek Srivastava & Ors. Vs. State of U.P. & Ors.
745
the Institute is at Kolkata. According to the
opinion given by the expert, Central Glass and
Ceramic Research Institute exist even at Khurja
and thus they have rightly selected option No.2
to be the correct answer. It is doubted by the
appellants. The Institute is located at Kolkata
with its unit at Khurja. According to the expert,
when part of the Institute or a branch of the
Institute exist at Khurja, the respondents have
rightly selected it to be the correct answer.

34. To support the argument aforesaid,
reference of a book titled as "Uttar Pradesh: Ek
Samagra Adhyayan" is given. In the said book,
location of the Institute is shown at Khurja. In
view of the above, we do not find any reason to
cause interference in the finding of the learned
Single Judge, it is when there is again doubt
about the answer and benefit is to go to
examination authority.

35. The finding aforesaid has been
recorded in reference to the objection raise by
the appellants to six questions and according to
us, out of six questions, only Question No.60
deserves consideration and a prima facie a case
is made out by the appellants but for the
remaining questions, we govern these appeals by
the judgment of the Apex Court in the case of
Ran Vijay Singh (supra).

36. The further issue for consideration is in
reference to Question Nos. 71 and 79. In some
appeals, challenge to those questions have been
made showing it to be out of syllabus. Learned
Single Judge has dealt with the issue in
reference to the syllabus and found that both the
questions were not out of syllabus. The learned
Single Judge found both the questions are
covered by the topic "General Science/Science
in Daily Life". We do not find any error in the
finding recorded by the learned Single Judge as
both the questions fall under the subject referred
to above. According to the appellants, both the
questions were not falling in the subject of
Chemistry and, therefore, they were out of
syllabus. The argument aforesaid was raised in
ignorance of the fact that syllabus was not only
having subject of Chemistry but General Science
and Science in Daily Life. Thus, we do not find
that Question Nos. 71 and 79 were out of
syllabus so as to direct the respondents to ignore
both the questions.

37. As an outcome of the discussion
aforesaid, we find reason to cause interference in
the judgement of the learned Single Judge
limited to Question No. 60 and not for in any
other questions for which objections have been
raised by the appellants.

38. It is stated that selections have already
been finalized followed by appointments but
merely for that reason, the candidates having a
case in their favour cannot be deprived to get
benefit. Keeping in mind that selections have
already
been
completed
followed
by
appointments, direction in these appeals would
apply only to those candidates who have raised
the issue by maintaining a writ by now and not
to any other candidate. The benefit to the
candidates therein also would be if they are short
of one mark because the value of each question
is of one mark.

39. The matter is not referred to the expert
for its examination finding that answer to
Question No.60 was not correctly selected. The
issue could not even be contested by the
respondents thus to avoid further delay in the
matter, we direct the respondents to take a
decision appropriately to award one mark to the
litigants till date.

40. To avoid any complication, the nonappellants can give value of one mark to the
litigants for Question No.60 which otherwise
can be with deletion to increase the value of all
the questions proportionately but then it may
open a Pandora and this Court do not intend to
746 INDIAN LAW REPORTS ALLAHABAD SERIES
disturb the appointments already made thus
direction is kept limited to the writ petitioners. If
with award of one mark to any of the litigants
till date before Allahabad High Court, they find
place in the merit, then the respondents would
give them appointment, subject to satisfaction of
other conditions, if any.

41. The exercise aforesaid would not effect
in any manner the selection or appointments
already made. The benefit would be given to the
appellants and the writ petitioners, if they are
short of one mark and not otherwise. If any of
the litigant till date are short by two marks in the
merit, they would not be entitled to any benefit
of this judgment.

42. With the aforesaid direction, all the
appeals
are
disposed
of
after
causing
interference in the impugned judgment limited
to Question No. 60.
----------
(2021)11ILR A746
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal No. 174 of 2020

Rambir Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Suresh Chandra Dwivedi, Sri Siddharth
Khare, Sri Ashok Khare(Senior Adv.)

Counsel for the Respondents:
C.S.C., C.S.C. Sri Ankit Gaur

A. Service Law - Appointment - Payment of
Salary - U.P. Intermediate Education Act, 1921
- Regulations framed under the Act of 1921 -
Regulation
101
of
Chapter
III
-
An
appointment
without
prior
approval
u/Regulation 101 would be a nullity in so far as
it purports to bind the State Government to
grant aid to the institution concerned for
payment of salary. (Para 16)

The decision in the case of Pawan Kumar Misra (infra),
in which it was held that anything done without "prior
approval" is a nullity, would have to be read in terms of
the judgment of the SC (State of U.P. Vs Principal
Abhay Nandan Inter College & ors., AIR 2021 SC
4968), that is to say, an appointment without prior
approval u/Regulation 101 would be a nullity in so far
as it purports to bind the State Government to grant
aid to the institution concerned for payment of salary.
The appointment made by the Principal of the
Institution, and the Manager of the institution
having forwarded the papers for approval of the
appointment of the appellant-petitioner, would
not be a nullity so far as the institution is
concerned. (Para 11, 16)

Neither the appellant-petitioner nor the institution
concerned have any right to claim government aid for
salary & ors. dues of the appellant-petitioner. Since
the
appellant-petitioner
has
been
found
suitable for the post by the management and
was appointed without "prior approval", the
appointment would not be valid only as far as
any right to claim aid u/Regulation 101 of
Chapter III of the Regulation framed under the
Act of 1921 is concerned. Accordingly, the
judgment of the learned Judge is upheld. However,
this will not stand in the way of appellant-petitioner
claiming entitlement to pay & ors. dues from the
management itself. (Para 17)

Appeal dismissed. (E-4)

Precedent followed:

1. Jagdish Singh Vs St. of U.P. & ors., 2006 (3) ESC
2055 (Para 8)

2. Kailash Prasad Vs St. of U.P. & ors., 2008 (1) ESC
532 (Para 8)

3. Pawan Kumar Misra Vs Joint Director of Education,
Azamgarh, 2017(12) ADJ 516 (Para 11)

4. Dhruv Kumar Pandey Vs St. of U.P. & ors., 2020
(4) ADJ 599 (Para 12)