# Arsiya Bano v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Writ-A No. 481 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arsiya-bano-v-state-of-u-p-ors-49004
- **Pages:** 17

## Headnote

A. Civil Law - Constitution of India,1950 -
Art. 226 - Writ petition - maintainability -
re-evaluation of the answer-key - Judicial
Review of the expert opinion - Under
Article 226, High Court can judicially
review the expert opinion, given by the
persons specialized in the field, only if it is
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
demonstrated very clearly, that the key
answer is patently wrong & a material
error has been committed and / or if there
are allegations of mala fide against any of
the Members of the Expert Committee -
burden of proof lies upon the candidates
to demonstrate that the key answer is
incorrect & that there is a glaring mistake
which
is
totally
apparent
and
no
inferential
process
or
reasoning
or
research is required to show that the key
answer is wrong - In the event of any
doubt, the benefit should go to the
examination authority rather than to the
candidate. (Para 14,18, 21)

B. Civil Law - Constitution of India, Art.
226 - Writ petition - successive writ
petition - maintainability - Any relief not
claimed in the earlier writ petition should
be deemed to have been abandoned by
the petitioner - Even if a party does not
pray for the relief in the earlier writ
petition, which he ought to have claimed
in the earlier petition, he cannot file a
successive writ petition claiming that
relief (Para 32, 27)

Petitioners earlier filed writ petition before High
Court which was disposed off directing the
authorities to conduct the re-evaluation of the
answer-sheets of petitioners - Petitioners filed
second writ petition seeking the same relief i.e.
re-evaluation of their answer sheets Held -
Court held that the second writ petition was not
maintainable for again issuing a direction to reevaluate the respective booklet Series (Para 38)

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,976 of 57,624. This is a partial read: ask again with offset=39976 for what follows._

9 All. Arsiya Bano Vs. State of U.P. & Ors.
1379
clearly held that penalty of dismissal cannot
be imposed on an officer/employee after his
retirement
after
attaining
the
age
of
superannuation unless there exists a specific
rule in that behalf. If the disciplinary enquiry
is instituted prior to retirement of the
employee concerned, the same will continue
by operation of Article 351A of Civil Service
Regulations as held by Hon'ble Supreme
Court in the case of Harihar Bholenath
(supra). However, in such a case if the
employee is found to be guilty of grave
misconduct of or is found to have caused
pecuniary loss to the Government, it is the
Governor who can take action as provided in
Article
351-A
of
the
Civil
Service
Regulations.

36. Admittedly, in the instant case the
proceedings
were
instituted
prior
to
retirement
of
the
appellant-petitioner,
however, prior to passing of the order dated
01.11.2018 reiterating the order of dismissal,
he had already retired on 31.05.2015 on his
attaining the age of superannuation and
accordingly after 31.05.2015 the employeeemployer relationship had already got
severed and thus only action permissible
against him is in terms of the provisions
contained in Article 351A of Civil Service
Regulations.

37. Learned Single Judge while passing
the judgment and order under appeal has not
addressed the aforesaid issues, though these
issues were contended not only in the writ
petition but even in the reply submitted by the
appellant-petitioner to the show cause notice
dated 22.05.2018. Learned Single Judge
while passing the judgment and order under
appeal appears to have lost sight of the
aforesaid
aspects
of
the
matter
and
accordingly, in our opinion, the judgment
rendered by the learned Single Judge is not
tenable.

38. Resultantly, the special appeal is
allowed. The judgment and order dated
11.08.2021 passed by the learned Single
Judge in Writ Petition No.7483 (S/S) of
2019 is hereby set aside. The order dated
01.11.2018 passed by the Superintendent of
Police, Ambedkar Nagar is also set aside.

39. However, it will be open to the
respondents to take action in terms of the
provisions contained in Article 351-A of
Civil Service Regulations and in case
decision to take such action is taken, the
process thereof shall be completed within
three months from today.
----------
(2022) 9 ILRA 1379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-A No. 481 of 2021
connected with
Writ-A Nos. 482 of 2021, 484 of 2021, 486 of
2021, 487 of 2021 and 491 of 2021

Arsiya Bano ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Prakash Pandey, Sri Prabhakar
Awasthi

Counsel for the Respondents:
C.S.C., Ms. Archana Singh

A. Civil Law - Constitution of India,1950 -
Art. 226 - Writ petition - maintainability -
re-evaluation of the answer-key - Judicial
Review of the expert opinion - Under
Article 226, High Court can judicially
review the expert opinion, given by the
persons specialized in the field, only if it is
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
demonstrated very clearly, that the key
answer is patently wrong & a material
error has been committed and / or if there
are allegations of mala fide against any of
the Members of the Expert Committee -
burden of proof lies upon the candidates
to demonstrate that the key answer is
incorrect & that there is a glaring mistake
which
is
totally
apparent
and
no
inferential
process
or
reasoning
or
research is required to show that the key
answer is wrong - In the event of any
doubt, the benefit should go to the
examination authority rather than to the
candidate. (Para 14,18, 21)

B. Civil Law - Constitution of India, Art.
226 - Writ petition - successive writ
petition - maintainability - Any relief not
claimed in the earlier writ petition should
be deemed to have been abandoned by
the petitioner - Even if a party does not
pray for the relief in the earlier writ
petition, which he ought to have claimed
in the earlier petition, he cannot file a
successive writ petition claiming that
relief (Para 32, 27)

Petitioners earlier filed writ petition before High
Court which was disposed off directing the
authorities to conduct the re-evaluation of the
answer-sheets of petitioners - Petitioners filed
second writ petition seeking the same relief i.e.
re-evaluation of their answer sheets Held -
Court held that the second writ petition was not
maintainable for again issuing a direction to reevaluate the respective booklet Series (Para 38)

Dismissed. (E-5)

List of Cases cited:

1. Maharashtra State Board of Secondary and
Higher Secondary Education & anr. Vs Paritosh
Bhupesh Kurmarsheth & ors., AIR 1984 SC 1543

2. Pramod Kumar Srivastava Vs Chairman, Bihar
Public Service Commission, Patna & ors., J.T.
2004 SC 380

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

4. U.P.P.S.C. & ors. Vs Rahul Singh & ors. AIR
2018 SC 2861

5. University of Mysore Vs C.D. Govinda Rao &
anr., AIR 1965 SC 491

6. Bihar Staff Selection Commission Vs Arun
Kumar, (2020) 6 SCC 362

7. Jitendra Singh VsU.O.I.& anr., Writ C No.
53877 of 2017

8. M/s. Sarguja Transport Service Vs State
Transport Appellate Tribunal & ors., AIR 1987
SC 88

9. Ashok Kumar & ors. Vs Delhi Development
Authority, 1994 (6) SCC 97

10. Khacher Singh Vs St. of U.P. & ors., AIR
1995 All. 33

11. Commissioner of Income Tax, Bombay Vs
T.P. Kumaran 1996 (10) SCC 561

12.U.O.I. & ors. Vs Punnilal & ors. 1996 (11)
SCC 112

13. M/s. D. Cawasji & Co. & ors. Vs State of
Mysore & anr. AIR 1975 SC 813

14. Avinash Nagra Vs Navodaya Vidyalaya
Samiti & ors. (1997) 2 SCC 534

15. Uda Ram Vs Central State Farm & ors. AIR
1998 Raj. 186;

16. M/s. Rajasthan Art Emporium Vs Rajasthan
State Industrial and Investment Corporation &
anr. AIR 1998 Raj. 277

17. St. of U.P. & anr. Vs Labh Chand AIR 1994
SC 754

18. Burn & Co. Vs Their Employees AIR 1957 SC
38

19. Dr. Buddhi Kota Subbarao Vs K. Parasaran &
ors., AIR 1996 SC 2687

20. K.K. Modi Vs K.N. Modi & ors., (1998) 3 SCC
573
9 All. Arsiya Bano Vs. State of U.P. & Ors.
1381
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Prabhakar Awasthi and
Mr. Anand Prakash Pandey, learned
counsel for the petitioner, Ms. Archana
Singh, learned counsel for the respondentBasic Education Board, U.P. Prayagraj
through its Secretary and Mr. Shailendra
Singh, learned Standing Counsel for the
State-respondents
in
the
above
writ
petitions.

2. Writ- A No. 481 of 2021 has been
filed by the petitioner with a prayer to issue
a direction upon the respondents to
forthwith allocate 1 mark each for Question
nos. 116 and 146 after re-evaluating
Booklet Series-'C' qua the petitioner and
thereafter may appoint the petitioner on the
post of Assistant Teacher.

By means of Writ-A No. 482 of 2021,
the petitioner has prayed for a direction
upon the respondents to forthwith allocate
1 mark each for Question Nos. 3, 35, 70
and 126 after re-evaluating Booklet Series-
'A' qua the petitioner and thereafter may
appoint the petitioner on the post of
Assistant Teacher.

Writ-A No. 484 has been filed for a
direction upon the respondents to forthwith
allocate one mark, which has been wrongly
deducted pursuant to an order of a Writ
Court dated 22nd October, 2019 passed in
Writ-A No. 4235 of 2019 (Jyoti Yadav Vs.
State of u.P. & Others) along with Writ-A
no. 6420 of 2019 (Narendra Kumar
Chaturvedi Vs. State of U.P. & Others) and
may also allocate one mark in respect of
Question No. 21 and thereafter may appoint
the petitioner on the post of Assistant
Teacher.

In Writ-A No. 486 of 2021, it has been
prayed
by
the
petitioner
that
the
respondents be directed to forthwith
allocate 1 mark each for Question Nos. 34
and 50 after re-evaluating Booklet Series-
'C' qua the petitioner and thereafter may
appoint the petitioner on the post of
Assistant Teacher.

By Writ-A No. 487 of 2021, a writ of
mandamus has been prayed by the
petitioner directing the respondents to
forthwith
select
the
petitioner
after
allocating marks to Question Nos. 76 and
79 in relation to Assistant Teacher
Recruitment
Examination-2018
within
stipulated period of time as this Court may
desire and deem fit in the interest of justice.

Writ-A No. 491 has been filed by the
petitioner
for
a
direction
upon
the
respondents to forthwith allocate 1 mark
each for Question Nos. 18 and 133 after reevaluating Booklet Series-'A' qua the
petitioner and thereafter may appoint the
petitioner on the post of Assistant Teacher.

3. As the rudimentary realities and the
permissible
facets
intricate
are
indistinguishable in this bunch of the writ
petitions, they have been amalgamated and
heard together and are being decided by
this conjoint verdict. The particulars
chronicled in Writ- A No.- 481 of 2021
(Arsiya Bano Vs. State Of U.P. And 3 Ors.)
are being canned to be the leading case.

4. According to the petitioners, the
realistic milieu of the case is as follows:-

The State of Uttar Pradesh, by making
20th amendment in the Uttar Pradesh Basic
Education (Teachers) Service Rules, 1981,
fixed a criteria for making appointments of
Assistant Teachers in Primary Schools run
and controlled by the U.P. Basic Basic
Education
Baord,
Prayagraj/Allahabad.
Pursuant to the said amendment, a letter
has been issued by the State inviting online
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
applications
from
the
prospective
candidates for appointment on the post of
Assistant Teachers in Primary Schools
against total 68,500 posts for which the
State also proposed to conduct Assistant
Teachers Recruitment Examination-2018.

As per the provisions contained in the
guidelines so issued, initially the cut off
marks i.e. minimum qualifying marks was
fixed at 45% for General and Other
Backward Class category and 40% marks
fixed for Scheduled Caste Category. The
total marks of the Entrance Examination is
150 for which 150 questions provided in
written examination so conducted by the
State of Uttar Pradesh and on calculating
45% marks of which will be 67 marks and
40% marks will be 60 marks. As the
petitioners
possessed
the
degrees
of
Graduation and B.T.C. and also cleared
T.E.T. examination, therefore, they were
fully eligible to be appointed as Assistant
Teacher in primary schools and also
entitled
to
appear
in
Recruitment
Examination-2018.
The
petitioner
in
leading case applied for appearing in
Assistant
Teachers
Recruitment
Examination-2018
by
depositing
the
requisite fee and was also registered as a
candidate
having
Registration
No.
3500028774
and
allotted
Roll
No.
35351808887.
Pursuant
thereof,
the
petitioner appeared in Assistant Teacher
Recruitment Examination-2018 on 27th
May, 2018, wherein he was provided
Booklet Series "C". In the said recruitment
examination, there were four series of
booklets consisting of 150 questions, which
were marked as "A", "B", "C", & "D".
After the said recruitment examination, a
model booklet answer key of Booklet
Series "C" was duly published by the
Secretary,
Examination
Regulatory
Authority, U.P. Prayagraj, i.e. respondent
no.4 on the concerned website on 5th June,
2018 and further a revised model booklet
answer key of Booklet Series "C" was
published
on
18th
June,
2018
by
respondent no.4. The results of Assistant
Teachers Recruitment Examination-2018
was declared by respondent no.4 on the
concerned website on 13th August, 2018
and against total 68,500 posts, only 41,556
candidates were declared successful, as
they secured minimum eligibility cut off
marks, which was fixed as 45% for General
and Other Backward Class Category
candidates and 40% for Scheduled Caste
Category candidates i.e. 67 marks for
General/OBC candidates and 60 marks for
SC candidates. When the result was
declared, the petitioner has obtained 63
marks.

For ensuring transparency in the result
so declared against the Assistant Teacher
Recruitment
Examination-2018,
a
Government Order dated 5th October, 2018
was issued, whereby the candidates, who
were not satisfied with the result so
declared, were directed to apply online
between 11th October, 2018 to 20th
October, 2018 for re-evaluation of the
answer-key.
Pursuant
to
the
said
Government Order, an advertisement dated
10th October, 2018 was issued for reevaluation of the answer-key. Accordingly,
the petitioner filled online form for reevaluation. After filling the form for reevaluation, the result was declared on 17th
February, 2019 and the total marks of the
petitioner have been increased by two more
marks
i.e.
63+2=65
marks,
whereas
qualifying marks, as fixed by respondent
no.4 for the General/Other Backward Class
Category candidates, is 67 marks. For
question no. 10 of Booklet Series "C"
which was provided to her, a litigation was
pending before the Apex Court and upon
intervention of the Apex Court, one mark
each was given to all the candidates,
9 All. Arsiya Bano Vs. State of U.P. & Ors.
1383
therefore, total marks of the petitioner was
swelled to 66 marks. Against the reevaluated result, so declared on 17th
February, 2019, various writ petitions were
filed before this Court for subsequent reevaluation. The petitioner also filed Writ-A
No. 10620 of 2019. This writ petition was
clubbed with Writ-A No. 6420 of 2019
(Narendra Kumar Chaturvedi VS. State of
U.P. & Others), which was the leading
petition. This bunch of writ petitions were
disposed by a Writ Court vide common
judgment and order dated 22nd October,
2019 with a direction upon the respondents
to conduct the re-evaluation in light of the
judgment dated 30th October, 2018 passed
in Writ-A No. 18235 of 2018 (Aniruddh
Narayan Shukla & 118 others VS. State of
U.P. & Others). Pursuant to the above order
of the Writ Court dated 22nd October,
2019, the answer-keys of the prospective
candidates were re-evaluated, after which
the result was declared on 18th September,
2020, wherein the petitioner was awarded
66 marks, which was less than the
qualifying cut off marks i.e. 67 marks in
General/Other Backward Class Category.
Not being satisfied with the said reevaluation, the petitioner again approached
this Court by means of present leading writ
petition for re-evaluating Question Nos.116
and 146 of "C" booklet series which was
provided to the petitioner.

5. Submissions made on behalf of
petitioner in each writ petition of the
aforesaid bunch are as follows:-

(I) So far as the case of petitioner of
leading writ petition i.e. Writ-A No. 481 of
2022 is concerned, learned counsel for the
petitioner submits that pursuant to the order
of the Writ Court dated 22nd October,
2019, re-evaluation was done but the marks
to the answers given by the petitioner
against question nos. 116 and 146, have not
been given to her. In the said factual
background, the petitioner would refer
Question No.116 which reads as under:-

"शारिा अगधगनयम िा सम्बन्ध गिससे
है?"

The answer given by the petitioner is
''गववाह', whereas the answer as per the
answer sheet is ''बाल गववाह Child Marriage
Restraint Act 1929/युविों िी 18 एवं
मगहलाओं िी 14 वषत में गववाह/गववाह िी
उम्र/गववाह िी न्य नर्म आयु से सम्बखन्धर्/लड़िे
एवं लड़गियों िे गववाह िी गनगश्चर् आयु से
सम्बखन्धर्/ मगहला गववाह/ गववाह आयु से'.

Now petitioner would like to refer
Question No.146, which is quoted herein
below:-

"''व्यास सम्मान,2017' िे गलए गिसे चुना
िया है?".

The answer given by the petitioner is
''ममर्ा', whereas the answer in the answer
sheet is ''ममर्ा िागलया'.

Learned counsel for the petitioners,
therefore, submits that the answer given by
the petitioner is nearly the same which has
been given in the answer-sheet, hence, the
marks for those questions should be given
to the petitioner.
(II) In respect of the case of petitioner in
Writ-A No. 482 of 2021, learned counsel
for the petitioners submits that on the basis
of aforesaid order of the Writ Court, the reevaluation was done but no marks were
awarded to the petitioner. In support of his
case, the petitioner would like to reproduce
Question No.3 which reads as under:-

"चौराहा में िौन सा समास है?'.

The answer given by the petitioner is
''गद्विु समास/र्त्पुरुष समास', whereas the
answer as per the answer sheet is
''गद्विुसमास'.
1384 INDIAN LAW REPORTS ALLAHABAD SERIES

Similarly, the petitioner would like to
refer Question No.35 which is set-out
hereinbelow:-

"''पठनीयः पि में िौन-सा प्रत्यय है?".

To the said question, the answer given
by the petitioner is ''अनीयर प्रत्यय/अनीय',
whereas the answer in the answer sheet is
''गद्विुसमास अनीयर'.

The petitioner would also like to refer
Question
No.70
which
is
set-
out
hereinbelow:-

"10. से०मी० गत्रज्या वाले एि वृर् िी एि
जीवा िी लम्बाई 16 से०मी० है। वृर् िे िेंन्द्र से
जीवा िी ि री ज्ञार् िीगजए।".

To the said question, the answer given
by the petitioner is ''6 सेंमी या 6 cm',
whereas the answer given in the answer
sheet is ''6'.

Lastly, the petitioner refers Question
No. 126, which is being quoted hereinbelow:-

"वषत 1893 में गिस शहर में स्वामी
गववेिानन्द ने भारर् िे प्रगर्गनगध िे रूप में गवश्व
धमत संसि में प्रेरर्ािायि भाषर् गिया?".

To the said question, the petitioner has
given his answer as ''गशिािो', whereas the
answer as per the answer sheet is ''गशिािो
मे'.

Learned counsel for the petitioner,
therefore, submits that on the basis of
aforesaid factual background, the petitioner
ought to have been accorded one mark each
for Question Nos. 3, 35, 70 and 126.
(III) Qua the case of the petitioner in WritA No. 484 of 2022, learned counsel for the
petitioner submits that in compliance of the
order of the Writ Court as mentioned herein
above, the re-evaluation of the booklet
series provided to him, was done but no
marks were accorded to the petitioner. In
support of his submission, learned counsel
for the petitioner reproduces Question
No.21, which reads as follows:-

"व्य ह िा गवलोम शब् क्ा है?".

Against the said question, the answer
given by the petitioner is ''गनव्य तह/अव्य ह',
whereas the answer as per the answer sheet
is ''आव्य ह'.

Learned counsel for the petitioners,
therefore, submits that as the answer given
by the petitioner is nearly the same to the
answer mentioned in the answer-sheet,
hence, the marks should have been given to
the petitioners in the interest of substantial
justice.
(IV) As regards, the case of the petitioner
in Writ-A No. 486 of 2022, learned counsel
for the petitioner submits that pursuant to
the order of the Writ Court as referred to
above, the re-evaluation of the booklet
series provided to the petitioner, was done
but no marks were accorded to the
petitioner for Question Nos. 34 and 50. In
support of his submission, learned counsel
for the petitioner refers to Question No.34,
which reads as follows:-

"प्रत्येिम् पि में िौन-सा उपसित प्रयुक्त
है?".

For the said question, the answer given
by the petitioner is ''प्रगर्'.

He also refers to Question No. 50,
which is being quoted herein-below:-

"एि जीव िी संरचना, िायत या व्यवहार
वार्ावरर् िे अनुरुप पररवर्तन िहलार्ा हैः-".

The answer given by the petitioner to
the same is ''अनुि लन/Adaptation', whereas,
the answer is the answer sheet is ''अडप्टेशन'.

Learned counsel for the petitioner,
therefore, submits that as the answers given
by the petitioner for the aforesaid questions
are the same as mentioned in the answersheet, therefore, the marks to the aforesaid
questions should be given to the petitioner
in the interest of substantial justice.
(V) Insofar as it relates to the case of the
petitioner in Writ-A No. 487 of 2022,
9 All. Arsiya Bano Vs. State of U.P. & Ors.
1385
learned counsel for the petitioner submits
that though the re-evaluation pursuant to
the aforesaid order of the Writ Court was
done, but no marks have been given to the
petitioner for Question Nos. 76 and 79. For
ready reference, Question No. 76 reads as
follows:-

"िौन सा अगभलेि छात्रों िी योग्यर्ा,
रूगच, क्षमर्ाओं एवं प्रगर्गक्रयाओं िी जााँच िरने
हेर्ु रिा जार्ा है?".

Learned counsel for the petitioner
further submits that the answer for the
aforesaid question given by the petitioner is
''छात्र अगभलेि', whereas, the answer as per
the answer sheet is ''संचयी अगभलेि/
उपाख्यानात्मि (एनेक्डोटल) अगभलेि/ छात्र
प्रोफाइल/
छात्र
प्रिगर्
अगभलेि/
संगचर्
अगभलेि/पोटतफोगलयो'.

Similarly, learned counsel for the
petitioner would like to refer Question
No.79 which is quoted as under:-

"यगि आप िक्षा में ज्यािा छात्रों िी
प्रगर्भागिर्ा चाहर्े हैं र्ो आप गशक्षर् िी िौन
सी गवगध िा चुनाव िरेंिे?".

The answer given by the petitioner is
छात्र सहभागिर्ा गवगध', whereas the answer
given in the answer-sheet is ''गवचारगवमशत/सहिारी/वाि-गववाि/सहभािी
गशक्षर्/
सम ह चचात/ रूगच प र्त सम ह चचात'.

Learned counsel for the petitioner,
therefore, submits that the answer given by
the petitioner is nearly the same which has
been given in the answer-sheet, hence, the
marks for those questions should be given
to the petitioner.
(VI) With respect to the case of the
petitioner in Writ-A No. 491 of 2022,
learned counsel for the petitioner submits
that the petitioner has given right answers
to question nos. 18 and 133 but after reevaluation, no marks have been given to
him. For justifying his answer, the
petitioner wants to refer Question No.18
which reads as under:-

"गलिावट' शब् में गिस प्रिार िा प्रत्यय
है?".

Learned counsel for the petitioner
further submits that the answer given by the
petitioner is ''िृर्् प्रत्यय/ आवट/ वट',
whereas, the answer disclosed in the
answer sheet is ''आवट् प्रत्यय'. Similarly,
learned counsel for the petitioner refers to
Question No. 133 which is quoted hereinbelow:

"क्षेर्ी 4M,9K,16I,25G,........? िा अिला
पि ज्ञार् िीगजए।".

The answer given by the petitioner is
''36E', whereas, answer mentioned in the
answer-sheet is ''36E'. Learned counsel for
the petitioner, therefore, submits that as the
answers given by the petitioner for the
aforesaid questions are the same as
mentioned in the answer-sheet, therefore,
the marks to the aforesaid questions should
be given to the petitioner in the interest of
substantial justice.

6. On the cumulative strength of the
aforesaid eventualities, learned counsel for
the petitioner submits that the petitioner of
all the writ petitions should have been
awarded marks towards the respective
questions strictly in terms of the judgment
rendered in the case of Aniruddh Narayan
Shukla and in that event, petitioner would
secure the cut off marks as required, in all
eventuality, petitioner of all the writ
petitions would have been selected. Hence,
a direction be issued to the respondent
authorities to award marks as aforesaid so
that the petitioners of their respective
petitions may be declared successful and be
selected on the post in question.

7. Controverting the submissions
made by the learned counsel for the
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, Mr. Shailendra Singh, learned
Standing Counsel for the State-respondents
submits as follows:-

a) The relief prayed by the petitioner
in Writ-A No. 481 of 2022 cannot be
granted by this Court, as the re-evaluation
of answers given by the petitioner in
Booklet Series "C" which was provided to
him, have been done twice and for question
nos. 116 and 146, he has not been awarded
marks,
as
he
had
given
incomplete/incorrect answer to the same.
To question no. 116, the petitioner gave
answer as " गववाह", whereas the correct
answer of the same is " बाल गववाह".
Similarly,
to
question no. 146,
the
petitioner had given answer as " ममर्ा",
whereas the correct answer to the same is "
ममर्ा िागलया". Learned Standing Counsel,
therefore, submits that there is no illegality
or infirmity in the re-evaluation done in the
case of the petitioner.

b) With regard to the petitioner in
Writ-A No. 491 of 2022 for re-evaluation
of question nos. 18 and 133 of Booklet
Series "A" which was provided to the
petitioner, learned Standing Counsel for the
State-respondents submits that for question
no.133, marks have already been awarded,
whereas for question no.18, the petitioner
has not been awarded mark as he has given
incorrect/incomplete answer. Qua question
no.18, as per the re-evaluated answer-key
published on 18th September, 2020, the
correct answer to the same is "िृर्
प्रत्यय/आवर्/वर्", whereas the petitioner has
given the answer as "आवर् प्रत्यय". Learned
Standing Counsel therefore, submits that
the relief as prayed in the writ petition
cannot be granted. In support of the said
plea, the learned Standing Counsel has
placed reliance upon a judgment of this
Court dated 25th January, 2021 passed in
Writ-A No. 10393 of 2020 (Gargi Singh
Vs. State of U.P. & Others), wherein
similar dispute qua incorrect/incomplete
answer, was involved. The said writ
petition was dismissed by a Writ Court
while recording a finding that as there were
major spelling error in answer to question
no.21, which was related to language and
the spelling errors were relevant, the
examining body has correctly marked the
said answer as "wrong".

c) To the prayer made in Writ-A No.
482 of 2022 for re-evaluation of question
nos. 3, 35, 70 and 126 of Booklet Series
which was provided to the petitioner,
learned Standing Counsel for the Staterespondents submits that the marks have
already been awarded to the petitioner after
re-evaluation, therefore, this prayer has no
leg to stand. Even otherwise, pursuant to
the Government Order dated 5th October,
2018
and
advertisement
dated
10th
October, 2018, the petitioner had not made
online application for re-evaluation of
which the result was declared on 17th
February, 2019.

d) Qua the submissions made by the
learned counsel for the petitioner in respect
of Writ-A No. 487 of 2022 for reevaluation of question nos. 76 and 79 of
Booklet Series "C" which was provided to
the petitioner, learned Standing Counsel for
the State-respondents submits that against
the said questions, the petitioner has given
incorrect/incomplete answer. As per the reevaluated answer-key published on 18th
September, 2020, the correct answer to
Question
No.
76
is
"संचयी
अभीलेि/उपख्यानर्मि
(अनेिद्योर्ल)
अभीलेि/
छात्र
प्रोफाइल/छात्र
प्रिगर्
अगभलेि/संगचर्
अगभलेि/पोटतफोगलयो,
whereas the petitioner has given the answer
as " छात्र अभीलेि". Similarly, the correct
answer to question no.79 is "गवचार-
9 All. Arsiya Bano Vs. State of U.P. & Ors.
1387
गवमषत/सहिारी/वाि-गववाि/सहभािी
गशक्षर्/
समुह चचात/रुगचप र्त साम गहि गशक्षा, whereas
the petitioner has given the answer as " छात्र
सहभागिर्ा गवगध". Therefore, he has not been
awarded marks to the said questions and
controversy has been settled in favour of
respondents by a Writ Court in the case of
Gargi Singh (Supra).

e) So far as prayer made in Writ-A No.
484 of 2022 for re-evaluation of question
no. 21 of Booklet Series "B", which was
provided to the petitioner, is concerned,
learned Standing Counsel for the Staterespondents submits that as per the reevaluated answer-key published on 18th
September, 2020, the correct answer to
Question No. 21 is "गनव्य ह/आव्य ह" of
which the petitioner has given answer as "
आव्य ह" which is also incomplete/incorrect
answer, therefore, petitioner has not been
awarded marks for the same.

f) To the prayer made in Writ-A No.
486 of 2022 for re-evaluation of question
nos. 34 and 50 of Booklet Series "A" which
was provided to the petitioner, learned
Standing Counsel for the State-respondents
submits that the marks have already been
awarded
to
the
petitioner
after
reevaluation, therefore, this prayer has no leg
to stand. Learned Standing Counsel for the
State-respondents, therefore, submits that
this petition is wholly misconceived and is
liable to be dismissed.

Even otherwise, to the submissions
made by the learned counsel for the
petitioner for re-evaluation of answersheets of the petitioner in all the writ
petitions, which were in form of Booklet
Series "A", "B", "C" respectively, Mr.
Shailendra
Singh,
learned
Standing
Counsel for the State-respondents submits
that there is no provision of re-evaluation
of answer-sheets thrice and it would not be
out of place to mention that the answersheets of the petitioners have already been
re-evaluated twice.

Apart from the above, Mr. Shailendra
Singh, learned Standing Counsel has also
raised
preliminary
objection
to
the
maintainability of all the writ petitions by
contending that the petitioners of their
respective petitions have earlier approached
this Court by means of Writ-A No.10620 of
2019, Writ A-No. 13024 of 2019, Writ-A No.
4235 of 2019, Writ-A No. 13333 of 2019,
Writ-A No. 4166 of 2019 and Writ-A No.
6959 of 2019 respectively. All these writ
petitions have been clubbed with Writ
Petition No. 6420 of 2019 and the same have
been disposed off by means of a common
judgment and order dated 22nd October,
2019, whereby the Secretary, examination
Regulatory Authority, U.P. Allahabad was
directed to conduct the re-evaluation of the
answer-sheets of petitioners of all the writ
petitions. Learned counsel for the Staterespondents, therefore, submits that this
second writ petition nearly for the same relief
i.e. for re-evaluation cannot be entertained by
this Court and the same is liable to be
dismissed on this ground alone. The proper
remedy available to the petitioner is to file a
recall/modification application in the said
writ petition or file a special appeal against
the order passed therein.

On the cumulative strength of the
aforesaid, learned Standing Counsel for the
State-respondents submits that all these writ
petitions are not maintainable and the same
are liable to be dismissed.

8. I have considered the submissions
made by Mr. Awasthi, learned counsel for the
petitioner and Mr. Singh, learned Standing
Counsel for the State-respondents in all the
writ petitions.

9. Learned Counsel for the petitioner
has not brought to this Court's attention any
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
rules, regulation or any guidelines framed
by the respondent, notification or circular,
bulletin issued by the respondent or any
authority of law that may permit reevaluation time and again.

Contrarily, it is an admitted position
that re-evaluation of respective Booklet
Series provided to the petitioners in all the
writ petitions has been done twice.

10. The issue of re-evaluation of
answer book or sheet is no more res
integra. This issue has been considered by
the
Apex
Court
in
the
case
of
Maharashtra State Board of Secondary
and Higher Secondary Education & Anr.
Vs. Paritosh Bhupesh Kurmarsheth &
Ors., reported in AIR 1984 SC 1543,
wherein the Apex Court rejected the
contention that in absence of provision for
re-evaluation, a direction to this effect can
be issued by the Court. The Apex Court
further held that even the policy decision
incorporated
in
the
Rules/Regulations
providing for rechecking/ verification/reevaluation cannot be challenged unless
there are grounds to show that the policy
itself is in violation of some statutory
provision. The Apex Court held as under:-

"In our opinion, this approach made
by the High Court was not correct or
proper because the question whether a
particular piece of delegated legislation -
whether a rule or regulation or other type
of statutory instrument - is in excess of the
power of subordinate legislation conferred
on the delegate as to be determined with
reference only to the specific provisions
contained in the relevant statute conferring
the power to make the rule, regulation, etc.
and also the object and purpose of the Act
as can be gathered from the various
provisions of the enactment. It would be
wholly wrong for the court to substitute its
own opinion for that of the legislature or its
delegate as to what principle or policy
would best serve the objects and purposes
of the Act and to sit in judgment over the
wisdom and effectiveness or otherwise of
the policy laid down by the regulationmaking body and declare a regulation to be
ultra vires merely on the ground that, in the
view of the Court, the impugned provisions
will not help to serve the object and
purpose of the Act. So long as the body
entrusted with the task of framing the rules
or regulations acts within the scope of the
authority conferred on it, in the sense that
the rules or regulations made by it have a
rational nexus with the object and purpose
of the Statute, the court should not concern
itself with the wisdom or efficaciousness of
such rules or regulations. It is exclusively
within the province of the legislature and
its delegate to determine, as a matter of
policy, how the provisions of the Statute
can best be implemented and what
measures,
substantive
as
well
as
procedural would have to be incorporated
in the rules or regulations for the
efficacious achievement of the objects and
purposes of the Act. It is not for the Court
to examine the merits or demerits of such a
policy because its scrutiny has to be limited
to the question as to whether the impugned
regulations fall within the scope of the
regulation-making power conferred on the
delegate by the Statute.

In our opinion, the aforesaid approach
made by the High Court is wholly incorrect
and fallacious. The Court cannot sit in
judgment over the wisdom of the policy
evolved
by
the
legislature
and
the
subordinate regulation-making body. It
may be a wise policy which will fully
effectuate the purpose of the enactment or
it may be lacking in effectiveness and hence
calling for revision and improvement. But
9 All. Arsiya Bano Vs. State of U.P. & Ors.
1389
any draw-backs in the policy incorporated
in a rule or regulation will not render it
ultra vires and the Court cannot strike it
down on the ground that in its opinion, it is
not a wise or prudent policy, but is even a
foolish one, and that it will not really serve
to effectuate the purposes of the Act. The
legislature and its delegate are the sole
repositories of the power to decide what
policy should be pursued in relation to
matters covered by the Act and there is no
scope for interference by the Court unless
the particular provision impugned before it
can be said to suffer from any legal
infirmity in the sense of its being wholly
beyond the scope of the regulation-making
power or its being inconsistent with any of
the provisions of the parent enactment or in
violation of any of the limitations imposed
by the Constitution."

11. This view referred to above has
been approved, relied upon and reiterated
by the Apex Court in the case of Pramod
Kumar Srivastava Vs. Chairman, Bihar
Public Service Commission, Patna &
Ors, reported in J.T. 2004 SC 380
observing as under:

"Under the relevant rules of the
Commission, there is no provision wherein
a candidate may be entitled to ask for reevaluation of his answer-book. There is a
provision for scrutiny only wherein the
answer-books are seen for the purpose of
checking whether all the answers given by
a candidate have been examined and
whether there has been any mistake in the
totalling of marks of each question and
nothing them correctly on the first cover
page of the answer-book. There is no
dispute that after scrutiny no mistake was
found in the marks awarded to the
appellant in the General Science paper. In
the absence of any provision for reevaluation of answer-books in the relevant
rules, no candidate in an examination has
got any right whatsoever to claim or ask
for re-evaluation of his marks."

12. This Court feels that sympathy or
compassion does not play any role in the
matter of directing or not directing reevaluation of an answer sheets. The law is
well settled that the burden is on the
candidates, not only to demonstrate that the
key answer is incorrect but also to show
that it is a glaring mistake which is totally
apparent and no inferential process or
reasoning is required to show that the key
answer is wrong. The Constitutional Courts
must exercise great restrain in such matters
and should be reluctant to entertain a plea
challenging the correctness of the key
answers. The Court should not over step its
jurisdiction by giving the directions for reevaluation
which
would
amount
to
judicially reviewing the decision of the
expert in the field.

13. The legal position in this respect
has been summarised in case of Ran Vijay
Singh and Ors. Vs. State of U.P. and
Ors., reported in (2018) 2 SCC 357 which
is follows:-

"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 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;

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
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
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 reevaluate 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."

14. Undoubtedly, the Courts cannot
judicially review the expert opinion unless
and until the key answer is patently wrong.
There is no doubt that the candidates put in
dreadful efforts while preparing for an
examination, it must not be unremembered
that even the examination authorities as
well as experts put in equally great efforts
to successfully conduct the examination,
therefore 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.

15. Therefore, the Court should
restrain in interfering with the efforts put in
by
the
candidates
as
well
as
the
examination authorities unless and until the
mistake is apparent on the face of record
and no research has to be done in proving
the same, as the same will be an unending
process
resulting
in
uncertainty
and
confusion.

16. Keeping in mind the aforesaid, the
Court in case of U.P.P.S.C. and Ors. Vs.
Rahul Singh and Ors. reported in AIR
2018 SC 2861 has observed as follows:-

"Unless the candidate demonstrate
that the key answers are patently wrong on
the fact of it, the Courts cannot enter into
the academic field, weigh the pros cons of
the arguments given by both sides and then
come to the conclusion as to which of the
answer is better or more correct."

17. Indubitably, conducting and
holding of examinations in a most fitting
and fair manner is peremptory and is
solemn duty of examining body to provide
for fair procedure, rules, regulations or byelaws, keeping in mind that the career and
fate of the students depends upon the result
of the examinations.

18. A Constitution Bench of the Apex
Court in the case of University of Mysore
Vs. C.D. Govinda Rao & Anr., reported
in AIR 1965 SC 491, has held that where
the decision under challenge has been taken
by the Committee of Expert, "normally the
Courts should be slow to interfere with the
opinion expressed by the experts" unless
there are allegations of mala fide against
any of the Members of the Expert
Committee. The Court further observed as
under:-