# Ajay Kumar Shukla v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-23
- **Case number:** Writ A No. 52949 of 2016
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-shukla-v-state-of-u-p-anr-52200
- **Pages:** 16

## Headnote

A. Service matter-Constitution of India,
1950-Article
226-selection/appointment
of lecturers-petitioner participated in the
examination-second revised answer key
was published in which answers to
questions no.s 59 and 81 were not revised
inspite
of
the
petitioner's
objections
while question no. 117 was revised,
although the same was not in disputemandamus
issued
directing
the
respondent to re-evaluate the answer-
146 INDIAN LAW REPORTS ALLAHABAD SERIES
sheets-if the petitioners figures in the
merit list, he shall be offered appointment
and he will be given seniority from the
date of first appointments were made, but
without any back wages or other benefit
whatsoever-Other candidates, who do not
make the grade after re-evaluation shall
not be ousted from service, but shall
figure at the bottom of the list of selected
candidates
based
on
the
first
selection.(Para 1 to 64)

B. When the answers run contrary to the
material published in a large number of
acknowledged
textbooks,
which
are
commonly read by students in the State, it
leave no room for doubt that the answer
given by the students is correct and the
key answer is incorrect. The key answers
are palpably and demonstrably erroneous,
the petitioner cannot made be made to
suffer on account of errors committed by
the Selection board and it calls for
interference by the court so that the error
is rectified and the wrong answers do not
adversely affect the fate of the candidates
and their merit is tested in a proper
manner. (Para 59, 60)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,944 of 51,963. This is a partial read: ask again with offset=39944 for what follows._

7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
145
definitely mean that this period could be
accountable for the purposes of future pay
scale and other service benefits like ACP
benefits, time scale benefits and selection
grade benefits. In the impugned order
which has been passed, there is no mention,
nor I find to be any recital to this effect that
petitioner was given any pecuniary benefit
and thereby arrears of salary or arrears
otherwise of dues for the period running
between 27.09.1991 till 29.01.2001. All
these fixation of selection grade, etc. has
been done only after 29.01.2001 when the
petitioner got substantive appointment as
accounts clerk and started working as such.

7. Even otherwise a retrospective
regularization if restores seniority, then
fixation of salary/ pay scale of an employee
cannot be lower than that of other
employee/ employees who is/ are junior to
him. This if is permitted will lead to
arbitrariness and discrimination and so
should be hit by Article 14 of the
Constitution petitioner is to be protected
considering entire period of service, may be
arrears of salary for the period are not paid
.

8. In view of the above, therefore,
the resolution adopted by the development
authority and the approval thereof by the
vice chairman dated 12.09.2008 impugned
herein
this
writ
petition
cannot
be
sustained.

9. It is stated at the Bar that the
petitioner has already attained the age of
superannuation. Accordingly, resolution of
the board and and the approval thereof by
the Vice Chairman dated 12.09.2008
annexure No.12 to the writ petition is
hereby quashed. Whatever the dues have
remained withheld only on account of
impugned order which has been set aside
today, shall be paid to the petitioner
forthwith within a period of three months
from the date of production of certified
copy of this order. If the petitioner is
receiving pension, the same shall be revised
and fixed, accordingly. It is made clear that
if the arrears as directed herein above, are
not paid within the stipulated period of time
as prescribed above, petitioner shall be
entitled to interest at the rate of 12% from
the date of expiry of three months till actual
payment is made.

10. This petition thus, stands
allowed accordingly.
----------
(2024) 7 ILRA 145
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 52949 of 2016

Ajay Kumar Shukla ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Shreya Gupta

Counsel for the Respondents:
C.S.C., A.K.S. Parihar, Ashok Kumar Yadav

A. Service matter-Constitution of India,
1950-Article
226-selection/appointment
of lecturers-petitioner participated in the
examination-second revised answer key
was published in which answers to
questions no.s 59 and 81 were not revised
inspite
of
the
petitioner's
objections
while question no. 117 was revised,
although the same was not in disputemandamus
issued
directing
the
respondent to re-evaluate the answer-
146 INDIAN LAW REPORTS ALLAHABAD SERIES
sheets-if the petitioners figures in the
merit list, he shall be offered appointment
and he will be given seniority from the
date of first appointments were made, but
without any back wages or other benefit
whatsoever-Other candidates, who do not
make the grade after re-evaluation shall
not be ousted from service, but shall
figure at the bottom of the list of selected
candidates
based
on
the
first
selection.(Para 1 to 64)

B. When the answers run contrary to the
material published in a large number of
acknowledged
textbooks,
which
are
commonly read by students in the State, it
leave no room for doubt that the answer
given by the students is correct and the
key answer is incorrect. The key answers
are palpably and demonstrably erroneous,
the petitioner cannot made be made to
suffer on account of errors committed by
the Selection board and it calls for
interference by the court so that the error
is rectified and the wrong answers do not
adversely affect the fate of the candidates
and their merit is tested in a proper
manner. (Para 59, 60)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Kanpur Univ. thru Vice Chancellor & Ors Vs.
Samir Gupta & Ors (1983) 4 SCC 309

2. Saumitra Ginodia Vs. UOI & Ors (2017) SCC
OnLine All 4303: (2018) 2 All LJ 98

3. Manish Ujwal & Ors Vs. Maharishi Dayanand
Saraswati Univ. & Ors (2005) 13 SCC 744

4. Rohit Nandan Shukla Vs. UPSC Alld. & Anr.
(2016) 5 ADJ 485

5. Ran Vijay Singh & Ors Vs. St. 0f UP & Ors
(2018) 2 SCC 357

6. UPPSC Vs. Rahul Singh (2018) 7 SCC 254

7. Rishal Vs RPSC (2018) 8 SCC 81

8. HC of Tripura Vs. Tirtha Sarathi Mukherjee
(2019) 16 SCC 663

9. Mahesh Kumar Vs. SSC & Anr. (2022) SCC
OnLine SC 2290

10. Uday Bhan Yadav Vs. St. of UP & 2 Ors SPLA
No. 492 of 2020

11. Rajesh Kumar Vs. St. of Bih. (2013) 4 SCC
690

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitioner has
challenged validity of selections made on
the post of Post Graduate Teachers
(English) for the year 2013, held in
pursuance of Advertisement No.2-2/2013
dated 04.01.2013 issued by the Secondary
Education Services Selection Board. An
alternative prayer has been made for
revision of the final answer key and
issuance of select list on the basis thereof.

2. Briefly stated, facts of the case
are that the Secondary Education Selection
Service Board, Uttar Pradesh (herein
referred to as 'the Selection Board') had
issued a notification dated 04.01.2013 for
making selections for appointments to
various posts of Lecturers, including 97
Posts of Lecturers (English) in boys
category and 13 posts of Lecturer (English)
in girls category. The petitioner had applied
and participated in the written examination
held on 22.02.2015 in furtherance of the
aforesaid advertisement.

3. The dispute involved in the
present writ petition relates to question
Nos. 59, 81 and 107 of 'A' Series question
paper of English, which were as follows:-
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
147

"Question No.59. Shakespeare's
The tempest is a -

(A) Tragedy

(B) Comedy

(C) Tragic Comedy

(D) History play

Question No.81. Thomas hardy
started his literary career as -

(A) Novelist

(B) Short story writer

(C) Poet
(D) Dramatist

Question No.107. Fill in
the
blank
with
suitable
preposition:-
Some trains run _ _ _
electricity
(A) from
(B) on
(C) with
(D) by"

4. The Selection Board published a
provisional answer key wherein the correct
answer of question No.59 was shown as
option 'C - Tragic Comedy', the correct
answer of question No.81 was shown as
option 'C - Poet' and correct answer of
question No.107 was shown as option 'D -
By'.

5. After publication of the
provisional answer key, some candidates
filed objections against the answers of nine
questions and thereafter, the Selection
Board published a revised answer key
dated 20.5.2015 wherein it revised answers
of question Nos. 36, 59 and 81. Further
question Nos.1, 28, 46, 48, 67 and 117 (of
'A' series question paper) were marked "F"
indicating
that
the
questions
either
contained more than one correct answer or
no correct answer and, therefore, all the
candidates were awarded full marks for the
aforesaid questions. This resulted in serious
prejudice to the petitioner and some other
candidates and, therefore, the petitioner
filed Writ A No.45977 of 2015 in this court
along with another petitioner.

6. Some other writ petitions were also
filed with the same grievance. One of such
writ petitions bearing Writ A No.37051 of
2015; Atender Kumar and another Vs. State
of U.P. and another, was disposed of by
means of an order dated 09.07.2015
directing the Selection Board to take a
decision on the objections filed by the
petitioners. Writ A No.45977 of 2013 was
also disposed of by means of an order dated
31.08.2015, permitting the petitioners to
file objections before the Selection Board
and the Selection Board was directed to
take a decision on the same expeditiously,
after receiving a report from the expert
body.

7. In furtherance of the aforesaid
order passed by this Court, the Selection
Board referred sought an expert's opinion
from the University of Allahabad. The
petitioner had filed detailed objections
before the Selection Board on 08.09.2015.

8. After receiving the report of the
expert body, the Selection Board published
the
second
revised
answer
key
on
20.04.2016,
wherein
apart
from
the
questions,
whose
answers
had
been
challenged, revised answers were issued in
respect of some other questions also. The
Selection Board had marked "F" in front of
three new questions No. 23, 30 and 46 in
the second revised answer key and it
revised the answer of question No.117,
which was not in dispute. Answers of
question Nos. 28, 36, 48, 59 and 81 given
148 INDIAN LAW REPORTS ALLAHABAD SERIES
in the first revised answer key remain
unaltered.

9. The petitioner contends that the
answers mentioned in the provisional
answer key contain correct answers to all
the questions and the Selection Board
wrongly entertained some objections filed
by some candidates in a mechanical
manner and the revised answer keys
published on 20.05.2015 and 20.04.2016
have resulted in serious prejudice to the
interests of the petitioner. As per the
petitioner, correct answers to question
Nos.1, 23, 28, 30, 36, 46, 48, 67 and 117
were available in the question paper and
yet, all the aforesaid questions have been
marked "F", due to which all the candidates
were awarded full marks for the aforesaid
questions.

10. The petitioner further submits
that answers to the question Nos. 36, 59, 81
and 107 given in the provisional answer
key were correct and the same have
wrongly been altered by the Selection
Board while revising the answer keys.

11. In the provisional answer key,
answer
to
question
No.59
was
that
"Shakespeare's 'The tempest' is a 'Tragic
comedy', which has been changed to
'Comedy' in the revised answer keys. The
petitioner contends that the answer to question
No.59 shown in the provisional answer key
was correct and to support the submission, the
petitioner has annexed copies of extracts of a
book titled "A Norton Critical Edition -
William
Shakespeare
-
The
Tempest"
containing criticism of The Tempest, wherein
the authors have written in the preface of the
book that:-

"The editors of the first folio
divided Shakespeare's plays into three
generic groupings- Comedies, Histories
and Tragedies. They placed 'The Tempest'
in the first of three categories, but few
modern readers have been entirely content
to leave it there. The play shares some of
the other wordily settings and romantic
playfulness of A Midsummer Night's
Dream,
and
it
moves,
like
other
Shakespearean
comedies,
toward
reconciliation and marriage; but the
seriousness of its tone, the suffering
experienced by all of the play's characters,
and the presence of themes such as exile,
enslavement, and mortality have led many
modern critics to label it a tragicomedy or
to group it with Shakespeare's other late
plays in a special category called the
"romance"."

12. The petitioner has also
annexed extracts from another book titled
"Shakespeare's The Tempest" published in
accordance with the latest syllabi of various
Universities in India, annotated and edited
by Mr. J.P. Goel, M.A. (English), LL.B.,
wherein it is written that "The Tempest has
been regarded as a very popular tragicomedy a Shakespeare's last phase of his
writing career."

13. The answer to question No.81
given in the provisional answer key was
that Thomas Hardy started his literary
career as a 'Poet' whereas in the revised
answer keys, the answer was changed so as
to make it Thomas Hardy started his
literary career as a Novelist.

14. The petitioner contends that
the answer given in the provisional answer
key was correct and to buttress this
submission, the petitioner has annexed
copies of extracts from a book titled "An
Anthology of English Poetry", which has
been edited by 'The Board of Editors
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
149
Department
of
English
and
Modern
European
Languages,
University
of
Allahabad' and is prescribed for the B.A. II
English Literature Course of the University
of Allahabad. In the preface to the book,
Professor Deepika Srivastava, Head of the
Department
of
English
and
Modern
European
Languages,
University
of
Allahabad, has written that different
teachers have edited different portions of
the book. Chapter 4 of the book is titled
"Thomas Hardy" and it is written in the
book that:-

"Though his Novels made him
famous, Hardy considered himself a Poet
and started his literary career with poetry.
He turned to poetry again after the hostile
reaction to his novel, 'Jude the Obscure'
(1896). Hardy is regarded as a transitional
poet whose poetry bridges the Victorian
and Modern ages of literature."

He produced eight volumes of
poetry. These include Wessex Poems
(1898), Times Laughing-Stocks (1909),
Satires of circumstance (1914) and Winter
Words (1928). The bulk of his poetry was
written in his late fifties and up to his death
at the age of eighty-eight."

15. The petitioner has also
annexed extracts of a book titled "Thomas
Hardy - Selected Poems" (Edited with a
critical introduction, texts, notes, questions
and answers) by Ramji Lall, M.A.,
formerly Principal Dayal Singh College,
University of Delhi, New Delhi. Chapter 3
of this book is titled "Hardy's Poetic
Career" and it is written therein that
"Hardy brought out his first volume of
verse in 1898, after he had stopped writing
novels. He had certainly written some
poetry when he was yet a young man; and
then he had taken to a novel-writing, and
written a large number of novels which
brought him fame and renown."

16. The petitioner has also
annexed copies of extracts from a book
titled "A Critical Study of Thomas Hardy -
TESS
OF
THE
D'URBERVILLES"
authored by Dr. B.P. Asthana, M.A. LLB.,
PhD, wherein the author has written in
Chapter 7 titled "Hardy as a Poet" that
"Hardy is famous as a great novelist yet he
started his career as a poet and also ended
as a poet." .

17. The petitioner has filed a
supplementary affidavit annexing therewith
extracts from a book titled "A history of
English Literature" by Edward Albert,
M.A.
revised
by
J.A.
Stone,
M.A.
published by George G. Harrap & Co. Ltd.
(London, Toronto, Wellington, Sydney),
wherein it is written that: -

"Hardy began as a poet, and,
though for a long time he was unable to
find a publisher for his verse, he continued
to write poetry. After the public outcry
against his two greatest novels, he wrote
only verse."

18. The petitioner further contends
that the answer to question No.107
mentioned in the provisional answer key
was that "Some trains are run by electricity"
whereas the Selection Board has wrongly
revised the answer so as to make it read
"Some trains are run on electricity". In support
of this submission, the petitioner has annexed
an extract from 'Oxford Dictionary, 8th
Edition' wherein while explaining the word
'Tram', it is mentioned in the Dictionary that
as a Noun, Tram means "A vehicle driven by
electricity", which implies that 'trains run by
electricity and not on electricity'
150 INDIAN LAW REPORTS ALLAHABAD SERIES
19. The petitioner contends that in
case evaluation is done on the basis of
answers
to
the
aforesaid
questions
mentioned in the provisional answer key,
he would be selected.

20. The petitioner has filed a
supplementary affidavit annexing therewith
copies of extracts of some more books of
some renowned authors. In "A Practical
Guide to English Grammar" authored by
K.P. Thakur, M.A. M.Ed., Ph.D, PGCTE,
(CIEFL, Hyderabad), former Principal,
RDS College, Muzaffarpur, the meaning of
the word 'by' has been explained as per
which the correct answer to question
No.107 would be "Some trains are run by
electricity".

21. As per the book 'How to right
Correct
English
(Applied
English
Grammar)" authored by Shri Rajendra
Prasad Sinha, M.A., Ex-Chairman, Bihar
College Service Commission also, the
correct answer would be 'by'.

22. Extracts from another book
titled "The Advanced Learner's Dictionary
of Current English" published by London
Oxford University Press, have also been
annexed with the supplementary affidavit,
which explains the meaning of word 'by'
with the help of an example that "Machines
are
driven
by
steam
(water-power,
electricity, etc.). Our houses are lighted by
electricity." which indicates that the correct
answer to question No.107 will be - "Some
trains are run by electricity".

23. In a book titled "High School
English
Grammar
&
Composition"
prescribed by the Board of High School
and Intermediate Education, U.P. for High
School Classes, it is written that - 'Some
trains are run by electricity'.
24. The Secretary, U.P. Secondary
Education
Service
Selection
Board,
Allahabad has filed a counter affidavit
stating that after receipt of the objections,
the same were referred to a subject expert,
who gave his opinion in support of the
objections, a copy whereby has been
annexed with the counter affidavit. A
perusal of the opinion of expert, who is a
Professor
of
English,
University
of
Allahabad, reveals that regarding question
No. A-59, the expert has opined:-

 "The
Tempest
is
actually
classified in Shakespeare's first folio as a
comedy,
Simply
put,
William
Shakespeare's
The
Tempest
includes
aspects of both tragedy and comedy.
Generally considered Shakespeare's final
play (believed to be written around 1610),
it is considered the last of his late romance
plays. Highly theatrical-better viewed on
stage than through reading-The Tempest
includes
the
tragic
element
of
the
treacherous death plans followed by
Prospero's revenge in addition to the many
comic moments; including the love interests
of Miranda and Ferdinand, the trickster
Ariel, and the monstrous Caliban. The
comic moments far outweigh the tragic
elements, making it one of Shakespeare's
most enjoyable and sometimes incongruous
plays

Objection overruled."

25. Regarding question No. A-81,
the expert has opined:-

"A distinction between "Career"
and "literary career" needs to made. The
literary career of a person starts with
his/her first publication. Hardy's first
published work is an essay (1865). His first
unpublished book, a novel, is The Poor
Man and the Lady (1867) while his first
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
151
published book, again a novel, is Desperate
Remedies (1871). His poems, Wessex
Poems, got published much later in 1898.
Thus, from the given options, Hardy's
literary career began as a novelist."

26. Regarding question No. A-107,
the expert has opined:-

 "Why
do
trains
run
on
electricity?

Why don't they run on Diesel? Of
course in some places where there is no
electricity infrastructure over the tracks the
trains do run on diesel.

MACHINE/ENGINE

a) [intransitive] if a machine or
engine runs, it operates:

She got out of the car and left the
engine running.

Run on electricity/gas/petrol etc.
(=get its power from electricity etc.)

Most cars run on unleaded fuel."

27. It is significant to mention that
the opinion regarding question No. A-107
as
printed
originally
is
"Objection
overruled", but afterwards, the expert has
scored out the word "overruled" and has
written in hand writing "conceded".

28. In rejoinder affidavit, the
petitioner has contended that the subject
expert has not referred to any standard
books on the subject and his opinion is
contrary to the material published in
authoritative works and textbooks. The
petitioner contends that the expert has dealt
with the matter in a confusing manner.

29. Although the petitioner has
impleaded two selected candidates namely,
Shri Santosh Kumar Shukla and Ms. Sapna
as respondent Nos.3 & 4 on 17.11.2016 and
notice was issued to respondent Nos.3 & 4
on the same date through registered post,
which has not been returned un-served, the
respondent Nos.3 & 4 have not put in
appearance to oppose the Writ Petition.

30. The learned Counsel for the
petitioner has relied upon the judgments in
the cases of Kanpur University, Through
Vice Chancellor and Others v. Samir
Gupta and Others: (1983) 4 SCC 309,
Saumitra Ginodia versus Union of India
and Others: 2017 SCC OnLine All 4303:
(2018) 2 All LJ 98, Manish Ujwal and
Others
v.
Maharishi
Dayanand
Saraswati University and others: (2005)
13 SCC 744 and Rohit Nandan Shukla v.
U.P.S.C. Allahabad And Another 2016
(5) ADJ 485.

31. The learned Counsel for the
respondent no. 2 has submitted that the
U.P.
Secondary
Education
Service
Selection Board, Allahabad has revised the
answer key on the basis of opinion of a
subject expert and it has not committed any
illegality in doing so. By placing reliance
on the judgments in the cases of Ran Vijay
Singh and Others versus State of U.P.
and Others: (2018) 2 SCC 357, U.P.
Public Service Commission versus Rahul
Singh: (2018) 7 SCC 254, Rishal v.
Rajasthan Public Service Commission:
(2018) 8 SCC 81, High Court of Tripura
v. Tirtha Sarathi Mukherjee: (2019) 16
SCC 663.

32.

In
Kanpur
University,
Through Vice Chancellor and Others v.
Samir Gupta and Others: (1983) 4 SCC
309, the Hon'ble Supreme Court held that:
-

"16.... We agree that the key
answer should be assumed to be correct
unless it is proved to be wrong and that it
152 INDIAN LAW REPORTS ALLAHABAD SERIES
should not be held to be wrong by an
inferential process of reasoning or by a
process of rationalisation. It must be
clearly demonstrated to be wrong, that is
to say, it must be such as no reasonable
body of men well-versed in the particular
subject would regard as correct. The
contention of the University is falsified in
this
case
by
a
large
number
of
acknowledged
textbooks,
which
are
commonly read by students in U.P. Those
textbooks leave no room for doubt that the
answer given by the students is correct
and the key answer is incorrect."
(Emphasis added)

33. The judgment in Kanpur
University, Through Vice Chancellor
and Others v. Samir Gupta and Others
(Supra) was followed in Manish Ujwal
and Others v. Maharishi Dayanand
Saraswati University and others: (2005)
13 SCC 744, wherein the Hon'ble Supreme
Court set aside an order passed by an
Hon'ble Single Judge Bench of the High
Court dismissing the Writ Petition and an
order passed by a Division bench affirming
the Single Judge Bench, and held that
where the key answers are palpably and
demonstrably
erroneous,
the
student
community, whether the appellants or
intervenors or even those who did not
approach the High Court or the Supreme
Court, cannot be made to suffer on account
of errors committed by the University. The
University and those who prepare the key
answers have to be very careful and
abundant caution is necessary in these
matters for more than one reason. First and
paramount reason being the welfare of the
student as a wrong key answer can result in
the merit being made a casualty. The
second reason is that the courts are slow in
interfering in educational matters which, in
turn, casts a higher responsibility on the
University
while
preparing
the
key
answers; and thirdly, in cases of doubt, the
benefit goes in favour of the University and
not in favour of the students. If this attitude
of casual approach in providing key
answers
is
adopted
by
the persons
concerned, directions may have to be
issued
for
taking
appropriate
action,
including disciplinary action, against those
responsible for wrong and demonstrably
erroneous key answers.

34. A Division Bench of this Court
deciding the case of Rohit Nandan Shukla
v. U.P.S.C. Allahabad And Another 2016
(5) ADJ 485, followed the judgment in the
case3 of Kanpur University, Through
Vice Chancellor and Others v. Samir
Gupta and Others (Supra).

35. In Saumitra Ginodia versus
Union of India and Others: 2017 SCC
OnLine All 4303: (2018) 2 All LJ 98, a
Division Bench of this Court held that: -

 "20. Thus, we find that the
opinion of the University or the expert,
normally, should be accepted as it is
assumed that such experts are well versed
in their subject. We are further of the
opinion
that
the
decision
of
the
examining body or the expert is not
beyond judicial review. The prime
consideration is to maintain the fairness
of the examination and welfare of the
students/candidates, inasmuch as, in the
event a wrong answer key is accepted, it
would alter the fate of many candidates.
The
object
of
conducting
an
examination is to assess the merit of the
candidates and to find out as to who is
most suitable one for admission. The
object of conducting a test would be
defeated in case a wrong answer given is
held to be beyond judicial review.
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
153

21. Normally, the Court should
be cautious in interfering with the opinion
of the expert but where it is found that the
answer keys are demonstrably wrong, that
is to say, it cannot be such as no
reasonable body of men, well versed in the
particular subject, would regard it as
correct, in that event the Court should
exercise its writ jurisdiction and ensure
that the error is rectified."
(Emphasis added)

36. In Ran Vijay Singh and Others
versus State of U.P. and Others: (2018) 2
SCC 357, also the Hon'ble Supreme Court
referred to the judgment in the case of
Kanpur
University v. Samir
Gupta (Supra) and further held that

"... the onus is on the candidate
to clearly demonstrate that the key answer
is incorrect and that too without any
inferential process or reasoning. The
burden on the candidate is therefore rather
heavy and the constitutional courts must be
extremely cautious in entertaining a plea
challenging the correctness of a key
answer. To prevent such challenges, this
Court recommended a few steps to be taken
by the examination authorities and among
them are: (i) establishing a system of
moderation; (ii) avoid any ambiguity in the
questions, including those that might be
caused by translation; and (iii) prompt
decision be taken to exclude the suspect
question and no marks be assigned to it.
* * *

30. The law on the subject is
therefore, quite clear and we only propose
to highlight a few significant conclusions.
They are:

30.1. 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;

30.2. 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 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;

30.3. The court should not at all
re-evaluate or scrutinise the answer sheets
of a candidate-it has no expertise in the
matter and academic matters are best left
to academics;

30.4. The court should presume
the correctness of the key answers and
proceed on that assumption; and

30.5. 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 re-evaluation 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,
154 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

37. In U.P. Public Service
Commission v. Rahul Singh: (2018) 7
SCC 254, the Hon'ble Supreme Court held
that: -

"14. ...When there are conflicting
views, then the court must bow down to the
opinion of the experts. Judges are not and
cannot be experts in all fields and,
therefore, they must exercise great restraint
and should not overstep their jurisdiction
to upset the opinion of the experts."

38. In Rishal v. Rajasthan Public
Service Commission: (2018) 8 SCC 81,
cited by the learned Counsel for the
respondent no. 2, the Hon'ble Supreme
Court had perused the answers given by the
Expert Committee and had come to a
conclusion that no error can be found with
the answers of the Expert Committee. Thus
even Rishal (Supra) relied upon by the
learned Counsel for the respondent no. 2
does not lay down that the Courts cannot
examine the correctness of opinion of an
expert body.

39. In High Court of Tripura v.
Tirtha Sarathi Mukherjee: (2019) 16
SCC 663, the Hon'ble Supreme Court
examined t\and explained the ratio of law
laid down in Ran Vijay Singh (Supra) in
the following words: -

"20. The question however arises
whether even if there is no legal right to
demand re-valuation as of right could there
arise circumstances which leave the Court
in any doubt at all. A grave injustice may
be occasioned to a writ applicant in certain
circumstances. The case may arise where
even though there is no provision for revaluation it turns out that despite giving the
correct answer no marks are awarded. No
doubt this must be confined to a case where
there is no dispute about the correctness of
the answer. Further, if there is any doubt,
the doubt should be resolved in favour of
the examining body rather than in favour of
the candidate. The wide power under
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
155
Article 226 may continue to be available
even though there is no provision for revaluation in a situation where a candidate
despite having giving correct answer and
about which there cannot be even the
slightest manner of doubt, he is treated as
having given the wrong answer and
consequently
the
candidate
is
found
disentitled to any marks.

21. Should
the
second
circumstance be demonstrated to be
present before the writ court, can the writ
court become helpless despite the vast
reservoir of power which it possesses? It is
one thing to say that the absence of
provision for re-valuation will not enable
the candidate to claim the right of
evaluation as a matter of right and another
to say that in no circumstances whatsoever
where there is no provision for re-valuation
will the writ court exercise its undoubted
constitutional powers? We reiterate that
the situation can only be rare and
exceptional.

22. We
would
understand
therefore the conclusion in para 30.2 which
we have extracted from the judgment
in Ran Vijay Singh v. State of U.P. [(2018)
2 SCC 357] only in the aforesaid light. We
have already noticed that in H.P. Public
Service
Commissionv. Mukesh
Thakur [(2010) 6 SCC 759], a two-Judge
Bench in para 26 after survey of the entire
case law has also understood the law to be
that in the absence of any provision the
Court
should
not generally direct
revaluation."

40. The learned Counsel for the
respondent no. 2 has relied upon the
decision in the case of Mahesh Kumar v.
Staff Selection Commision and Another:
2022 SCC OnLine SC 2290, which is
being reproduced below: -

"1. The grievance voiced by the
petitioner before the High Court was that
certain marks which were deducted ought
not to have been deducted. Basically, the
issue before the High Court was evaluation
of the answer scripts of the petitioner. The
High Court has rightly refused to entertain
the writ petition by observing that when the
conscious decision has been taken by the
experts and the courts have no expertise in
the matter and academic matters are best
left to the academics, we see no reason to
interfere with the same. Hence, the Special
Leave Petition stands dismissed."

41. Neither the facts of the case,
nor the law laid down in various precedents
on the point was considered in Mahesh
Kumar.

42. The learned Counsel for the
respondent no. 2 has also placed reliance
upon a Division Bench judgment of this
Court in Kaushlesh Mishra v. State of
U.P. And 2 others Special Appeal No. 42
of 2021 decided on 08.07.2021, whereby
the Division Bench dismissed the Special
Appeal and affirmed the judgment of the
Single Judge Bench dismissing the Writ
Petition by holding that the Court cannot
take place of an expert to evaluate the
correctness of the answer, where the
petitioner - appellant had failed to place
any material on record to show correctness
of the answer given by him. This decision
was based on the facts of the case, where
the appellant had failed to place any
material on record to show correctness of
the answer given by him whereas in the
present cased, the petitioner has placed
ample material on record to show that the
answers given by him were correct.

43. The learned Counsel for the
respondent no. 2 has also placed reliance
156 INDIAN LAW REPORTS ALLAHABAD SERIES
on a Division Bench judgment in the case
of Uday Bhan Yadav v. State of U.P. And
2 Others: Special Appeal No. 492 Of 2020
decided
on
06.10.2020,
wherein
the
Learned Counsel for the appellant was
asked to indicate the last date for
submission of objection to tentative answer
key to find out whether objection were
submitted on or before the last date, but he
was unable to indicate the last date for
submission of objection. The Court held
that in absence of an indication about the
last date either in the petition or appeal, it
cannot be said that petitioner submitted
objection before the last date and the
Special Appeal was dismissed for this
reason. This judgment is of no help to the
respondent no. 2 as no such point is
involved in the present case.

44. The principles of law which
can be culled out from a cumulative
reading of the aforesaid judgments on the
point, are that: -

44.1- The wide power under
Article 226 are available where a candidate
despite having giving correct answer is
treated as having given the wrong answer
and consequently the candidate is found
disentitled to any marks.

44.2- However, the Court should
be cautious in interfering with the opinion
of the expert.

44.3- The key answer should be
assumed to be correct unless it is clearly
demonstrated to be wrong.

44.4- If the key answer runs
contrary to the material published in a large
number of acknowledged textbooks, which
are commonly read by students in the State,
it leave no room for doubt that the answer
given by the students is correct and the key
answer is incorrect.

44.5- Where the key answers are
palpably and demonstrably erroneous, the
student community cannot be made to
suffer on account of errors committed by
the University.

44.6- Where it is found that the
answer keys are demonstrably wrong, the
Court should exercise its writ jurisdiction
and ensure that the error is rectified.
 44.7-
The
decision
of
the
examining body or the expert is not beyond
judicial review. The prime consideration is
to maintain the fairness of the examination
and welfare of the students/candidates,
inasmuch as, in the event a wrong answer
key is accepted, it would alter the fate of
many candidates. The object of conducting
an examination is to assess the merit of the
candidates and to find out as to who is most
suitable one for admission. The object of
conducting a test would be defeated in case
a wrong answer given is held to be beyond
judicial review.

45. When we examine the facts of
the present case in light of the above
mentioned principles of law, it appears that
in the provisional answer key published by
the Selection Board, the correct answer of
question No.59 was shown as option 'C -
Shakespeare's 'The tempest' is a 'Tragic
comedy', which has been changed to
'Comedy' in the revised answer keys.

46. The Secretary, U.P. Secondary
Education
Service
Selection
Board,
Allahabad has relied upon the opinion of a
subject expert, who is a Professor of
English, University of Allahabad. The
expert has also opined that the Tempest
includes aspects of both tragedy and
comedy, but the comic moments far
outweigh the tragic elements. The expert's
personal opinion regarding question no. 59,
which apparently tilts both ways to some
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
157
extent, is not supported by any material
published in any book.

47. In a book titled "Shakespeare's
The Tempest" published in accordance
with
the
latest
syllabi
of
various
Universities in India, annotated and edited
by Mr. J.P. Goel, M.A. (English), LL.B., it
is written that "The Tempest has been
regarded as a very popular tragi-comedy."
In another book titled "A Norton Critical
Edition - William Shakespeare - The
Tempest" containing criticism of The
Tempest, the authors have written that
many modern critics to label it a
tragicomedy. The subject expert, whose
opinion has been relied by the Selection
Board, has himself expressed the view that
the Tempest includes aspects of both
tragedy and comedy. When the Selection
Board and the subject expert have failed to
refer to any other material to support the
contrary view, the revision of answer to
question 59 so as to make it 'The tempest'
is a 'Comedy', in place of the original
answer in the provisional answer key that
'The tempest' is a 'Tragic comedy', is
manifestly wrong.

48. Similarly, in the provisional
answer key published by the Selection
Board, the answer to question 81 was that
'Thomas Hardy started his literary career
as a Poet' whereas in the revised answer
keys, the answer was changed so as to
make it 'Thomas Hardy started his literary
career as a Novelist'.

49.