# Kapil Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 465
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-31
- **Case number:** Special Appeal No. 93 of 2023
- **Bench:** Manoj Kumar Gupta, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-kumar-ors-v-state-of-u-p-ors-49358
- **Pages:** 11

## Headnote

C.S.C.

A. Recruitment - Selection Process -
Answer Key - Judicial Review - Intra-court
appeals challenging dismissal of writ petitions
seeking declaration of success in written
examination for Constable (Civil Police) and
Provincial Armed Constabulary (PAC) posts -
Question No. 68 of Test Booklet B, Series 17 -
Final answer key changed correct answer from
option 'C' to 'D' without provision for objections
- Appellants' marks marginally below cut-off -
Expert opinion from IIT Kanpur confirmed
option 'C' as correct - Court held Recruitment
Board's change of answer key irrational -
466 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial review permissible in rare cases where
material error is evident without inferential
reasoning - Appellants entitled to relief if within
2.5 marks of cut-off.

B. Relief - Moulding of Relief - 603 posts
vacant
after
final
selection
-
No
fresh
recruitment
initiated
-
Appellants
who
approached Court promptly entitled to revised
result, medical examination, and appointment
against vacant posts - Relief limited to
petitioners who filed writs before cut-off
notification - Selected candidates' appointments
not to be disturbed - Appellants to be placed at
bottom of seniority list with salary from date of
appointment.

Held: The Court set aside the Single Judge's
judgment dismissing the writ petitions. The
Recruitment Board was directed to revise the
written examination results for appellants within
2.5 marks of their category cut-off, conduct
medical examinations, and appoint successful
candidates against vacant posts within six
weeks. Relief restricted to appellants who
approached the Court promptly, with no
disturbance to already selected candidates.
Appointed candidates to be placed at the
bottom of the seniority list with salary from the
date of appointment. (Paras 30-31)

Case Law Discussed:

## Text

11 All. Kapil Kumar & Ors. Vs. State of U.P. & Ors.
465
they must ensure lucidity in writing across
these styles. This has also been captured by
Justice Corbett (Ibid)," in the following
extract :

For lucidity should be the prime aim
of any judgment-writer. At the same time,
certain aspects of style have a bearing on
lucidity. In this connection, my advice (for
what it is worth) is to keep your language
and your sentence construction simple.
Write in short sentences and do not try to
pack too many ideas into a single
sentence. Particularly in setting out facts,
try to maintain a simple, straightforward
flow to your narrative. Try to avoid the
repetition of words or phrases and observe
the normal rules of grammar. A wellknown exponent of simple language and the
simple sentence was Lord Denning.

(emphasis supplied)

28. Echoing a similar sentiment,
Justice Michael Kirby, a distinguished
former judge of the High Court of Australia
notes: (Justice Michael Kirby, On the
Writing of Judgment, (1990) 64 Australian
Journal 691 ):

Brevity, simplicity and clarity. These
are the hallmarks of good judgment
writing. But the greatest of these is clarity.

21. In this view of the matter, the
Court is of the opinion that the judgement
and decree dated 20.02.2021 passed by
Judge, Small Causes/Additional District
Judge, Bulandshahr is liable to be set aside
and the same is hereby set aside.

22. Since the suit in question was
filed initially in the year 2017 and
pleadings have already been exchanged, the
court concerned is directed to decide the
aforesaid suit strictly in accordance with
law most expeditiously and preferably
within a period of one year from the date of
receipt of the order without granting any
unnecessarily adjournment unless there is
no legal impediment.

23. It is made clear that status quo as
on today shall be maintained between the
parties till disposal of the suit.

24. Office is directed to return
original records to the court below
forthwith.
----------
(2023) 11 ILRA 465
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Special Appeal No. 93 of 2023
with
Special Appeal Nos. 14 of 2023, 15 of 2023
with Special Defective Appeal Nos. 122 of 2023
and 163 of 2023

Kapil Kumar & Ors. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Prashant Mishra, Sri Tarun Agrawal

Counsel for the Respondents:
C.S.C.

A. Recruitment - Selection Process -
Answer Key - Judicial Review - Intra-court
appeals challenging dismissal of writ petitions
seeking declaration of success in written
examination for Constable (Civil Police) and
Provincial Armed Constabulary (PAC) posts -
Question No. 68 of Test Booklet B, Series 17 -
Final answer key changed correct answer from
option 'C' to 'D' without provision for objections
- Appellants' marks marginally below cut-off -
Expert opinion from IIT Kanpur confirmed
option 'C' as correct - Court held Recruitment
Board's change of answer key irrational -
466 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial review permissible in rare cases where
material error is evident without inferential
reasoning - Appellants entitled to relief if within
2.5 marks of cut-off.

B. Relief - Moulding of Relief - 603 posts
vacant
after
final
selection
-
No
fresh
recruitment
initiated
-
Appellants
who
approached Court promptly entitled to revised
result, medical examination, and appointment
against vacant posts - Relief limited to
petitioners who filed writs before cut-off
notification - Selected candidates' appointments
not to be disturbed - Appellants to be placed at
bottom of seniority list with salary from date of
appointment.

Held: The Court set aside the Single Judge's
judgment dismissing the writ petitions. The
Recruitment Board was directed to revise the
written examination results for appellants within
2.5 marks of their category cut-off, conduct
medical examinations, and appoint successful
candidates against vacant posts within six
weeks. Relief restricted to appellants who
approached the Court promptly, with no
disturbance to already selected candidates.
Appointed candidates to be placed at the
bottom of the seniority list with salary from the
date of appointment. (Paras 30-31)

Case Law Discussed:

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

2. Bihar Staff Selection Commission Vs Arun
Kumar, (2020) 2 SCC 541

3.
Himanchal
Pradesh
Public
Service
Commission Vs Mukesh Thakur, (2010) 6 SCC
759

4. High Court of Tripura Vs Tiratha Sarathi
Mukherjee, (2019) 16 SCC 663

5. Sanjay Singh Vs U.P. Public Service
Commission, (2007) 3 SCC 720

6. S.C. Dixit Vs St. of U.P., (2003) 12 SCC 243

7. Kanpur University Vs Samir Gupta, (1983) 4
SCC 309
8. M. Sudakar Vs V. Manoharan, (2011) 2 SCC
703

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. The present batch of intra-court
appeals filed under Chapter VIII Rule 5 of
the Allahabad High Court Rules seek to
challenge identical orders and judgements
of learned Single Judge dated 25.11.2022
dismissing the writ petitions filed by the
appellants for a direction to the respondents
to declare them successful in the written
examination
held
for
the
posts
of
Constables (Civil Police) and Provincial
Armed Constabulary (PAC) in pursuance of
advertisement dated 16.11.2018 issued by
U.P. Police Recruitment and Promotional
Board (respondent herein).

2. For sake of convenience, we treat
Special Appeal No. 93 of 2023 as the
leading case and the facts of that case are
being noted. The facts of other cases are
identical.

3. The selection was held as per the
U.P.
Police
(Constable
and
Head
Constable) Service Rules, 2015 as amended
from time to time. It consisted of five
stages i.e. (i) written examination (ii)
documentary verification (iii) physical
standard test (iv) physical efficiency
test and (v) medical examination. A
total of 31360 posts of Constables
(Civil Police) and 18208 of Provincial
Armed
Constabulary
(PAC)
were
advertised. The written examination
was
held
on
27.01.2019
and
28.01.2019 in two separate shifts. The
Recruitment Board notified the cut off
marks of the written examination for
each category on 20.11.2019 which
are as follows:-
11 All. Kapil Kumar & Ors. Vs. State of U.P. & Ors.
467

General 185.3465

OBC

172.3272

SC
 145.3905

ST
114.1932

4. Thereafter by a notice dated
22.11.2019,
the
Recruitment
Board
intimated the appellants that document
verification/physical standard test would be
held for candidates numbering 2.5 times the
total number of vacancies. Those who were
successful, were made to undergo physical
efficiency test. The appellants, being
successful
in
document
verification/physical standard test, were
permitted
to
participate
in
physical
efficiency test. The aforesaid exercise was
held between 28.11.2019 and 28.1.2020.

5. The marks of individual candidates
was
notified
on
20.02.2020
and
simultaneously the list of candidates
selected for medical examination was also
uploaded on the website of the Recruitment
Board. The final select list was uploaded on
2.03.2020 and the said list did not include
the name of the appellants. All the
appellants have obtained marks nearing the
cut off marks in their respective category.
There are eight appellants and the marks
obtained by appellant nos. 1 to 8 therein are
A1- 174.8497, A2-148.9982, A3-173.8156,
A4-174.8497, A5-174.8497, A6-173.8156,
A7-175.3667, A8-175.8837 respectively.
Each correct answer was awarded plus two
marks (+2) and a wrong answer minus 0.5
marks.

6. The writ petition was founded on
the ground that key answer to Question
No.68 of Test Booklet B, Series 17
pertaining to the candidates in Special
Appeal No.93 of 2023 wrongly declares
option 'D' as the correct answer, whereas
the
correct
answer
was
option
'C'.
Accordingly, if their contention would have
been accepted by the Writ Court, they
would
have
become
successful
to
participate in the medical examination and
if found fit therein, being appointed against
the advertised posts.

7. Question no. 68 of test booklet-B,
Series-17 was as under:

Q. 68. At 9 PM, the hour hand
faces north, which direction will the minute
hand face at 6:30

AM?

A) North B) East

C) West D) South

8. The provisional key answers were
initially uploaded on the website of the
Board on 05.02.2019 and objections were
invited on the same. According to the key
answer uploaded on 05.02.2019, the correct
answer to question no. 68 was option (C).
Again on 12.03.2019, another set of
provisional key answers was uploaded on
the website and once again objections were
invited by the Board. In second key
answers uploaded on 12.03.2019 also, the
correct answer of question no. 68 of test
booklet-B, Series-17 was option (C).
However, in the final answer key uploaded
on 08.11.2019 on the website, the correct
answer was changed to option (D). It is
pertinent to mention that there was no
provision for filing objections against the
final answer key.

9. The writ petition filed by the
appellants was dismissed by learned Single
Judge with the finding that option (C) or
(D) to question no. 68 (wrongly mentioned
as question no. 69 in the impugned order)
would be correct depending on how the
question is interpreted and the Court is not
well equipped to sit over the expertise of
468 INDIAN LAW REPORTS ALLAHABAD SERIES
the expert body to take a decision with
regard to correct answer unless some
perversity and malafide is demonstrated.

10. By order dated 08.02.2023 this
Court directed the respondents to file short
counter affidavit disclosing the marks
obtained by the appellants, cut off merit
notified, whether the appellant would be
above the cut off if answer is treated to be
correct and how many seats remained
vacant category wise.

11. In compliance of the aforesaid
order, a short counter affidavit was filed by
respondent no. 2, 3 & 4 and in which it is
admitted that appellants 1, 2, 4, 5, 7 and 8
would obtain mark above the cut off marks
of their respective category if option (C)
would be taken as correct. In paragraph no.
6 of the short counter affidavit, a chart has
been given to demonstrate the above stand.
The same is reproduced below :

Sl.
N.
Regi
strat
ion
No.
Roll
No.
Can
dida
te
Nam
e
Cate
gory
Nor
mali
sed
mar
ks
Cate
gory
CutOff
Status
of
marks
if
Option
C
is
treated
as
correct
Option
Wheth
er
marks
are
above
Catego
ry
CutOff
1
100
569
29
2112
060
226
Kapi
l
Ku
mar
OB
C
174.
849
7
185.
346
5CP
176.
383
4PAC
177.34
97
Yes
2
101
242
072
241
230
028
1
Man
oj
Ku
mar
SC
148.
998
2
159.
308CP
149.
577
3PAC
151.49
82
Yes
3
101
298
772
241
219
039
8
Man
esh
Ku
mar
OB
C
173.
815
6
185.
346
5CP
176.
383
4PAC
176.31
56
No
4
102
060
764
248
202
051
6
Sura
j
Yad
av
OB
C
174.
849
7
185.
346
5CP
176.
383
4PAC
177.34
97
Yes
5
100
613
831
244
202
020
5
Jag
moh
an
Yad
av
OB
C
174.
849
7
185.
346
5CP
176.
383
4PAC
177.34
97
Yes
6
1011
866
16
212
209
028
0
Shas
hank
Ku
mar
OB
C
173.
815
6
185.
346
5CP
176.
383
4PAC
176.31
56
No
7
100
868
755
215
206
032
5
Ajit
Ku
mar
Yad
av
OB
C
175.
366
7
185.
346
5CP
176.
383
4PAC
177.86
67
Yes
8
100
599
05
2112
100
019
Gau
rav
Sing
h
OB
C
175.
883
7
185.
346
5CP
176.
383
4PAC
178.38
37
Yes

12. It has been further stated in
paragraph no. 9 of the short counter
affidavit that TCS, the outsourcing agency,
which
conducted
the
examination,
supported the change of answer key with
the following explanations -
11 All. Kapil Kumar & Ors. Vs. State of U.P. & Ors.
469

"Explanation:

The Question was in two Parts:

Part#1: At 9 p.m. the hour hand faces
north.

Part#2: Which direction will the
minute hand face at 6:30 a.m.?

There was no connection between
these two Parts and neither did the
Question indicate that it was referring to
the same Clock referred in part 1. The
Statement (or Part 1) was only meant as a
misdirection to confuse candidates who
would attempt the answer without reading
and analyzing the Question,

Actually, the Minute hand at 6.30 a.m.
on all Clock always face South. Therefore,
the correct answer was option D, 'South'
and hence revised Answer Key assigned
"D"."

13. By order dated 06.04.2023, this
Court directed the respondents to disclose
the number of seats which had remained
vacant in each category. The stand taken in
the affidavit filed in compliance of said
order is that after medical examination, 603
posts could not be filled up and these have
been
carried
forward
to
the
next
recruitment, which admittedly has not been
held so far.

14. These appeals were heard at
length on 6.07.2023. It was contended on
behalf of the appellants that the correct
answer was option 'C' and for arriving at
the aforesaid conclusion, no complex
process of reasoning or rationalization is
required. Even the Recruitment Board and
the State does not dispute that when the
hour hand faces North at 9:00 p.m. then
minute hand would face West at 6:30 a.m.
However, their contention that first part of
the question was incorporated only to
confuse the candidates and the same was to
be ignored and only second part of the
question should have been read in isolation,
is wholly unsustainable in law. A question
has to be read as a whole. A candidate is
never expected to shut his eyes to or ignore
any part of question and thereafter answer
it. On the other hand, it was vehemently
contended
on
behalf
of
the
State
respondents that Courts should not assume
the role of experts in such matters
otherwise, it would result in overstepping
its jurisdiction. Even in the event of doubt,
the benefit should go to the Recruitment
Board rather than to the appellants.

15. The aforesaid contentions were
examined by this Court and a detailed order
was passed on 6.07.2023 dealing with the
arguments advanced by the parties. The
relevant extract from the aforesaid order is
extracted below:-

15. Learned Additional Advocate
General and Additional Chief Standing
Counsel places reliance on the judgment of
Hon'ble Apex Court in Ran Vijay Singh v.
State of U.P.1 , wherein it has been held as
under: "30. The law on the subject is
therefore, quite clear and we only propose
to highlight a few significant conclusions.
They are:

30. 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
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
470 INDIAN LAW REPORTS ALLAHABAD SERIES
exceptional cases that a material error has
been committed;

30.3 The Court should not at all reevaluate or scrutinize the answer sheets of
a candidate - it has no expertise in the
matter and academic matters are best left
to academics;"

Learned Additional Chief Standing
Counsel vehemently submitted that this
Court should not embark upon an exercise
to re-evaluate the question as the Court
does not have expertise in the matter.

16. In response to the aforesaid
submission, it is submitted by the learned
counsel for the petitioner that if the
petitioners are able to demonstrate ex-facie
that the answer to question no. 68 was
wrong then this Court may seek opinion of
experts as was done by the Hon'ble
Supreme Court in case of Bihar Staff
Selection Commission and others v. Arun
Kumar and others2, wherein the Court has
held as under:

"This court reiterates that the scope of
judicial review under Article 226 in matters
concerning
evaluation
of
candidatesparticularly, for purpose of recruitment to
public services is narrow. The previous
decisions of the court have constantly
underscored that in the absence of any
provision for re- evaluation of answer
sheets, judicial review should be rarely
exercised - preferably under exceptional
circumstances."

17. The Hon'ble Apex Court even in
Ran Vijay Singh and others (Supra) did
not altogether ruled out interference by the
Court but held as under :

"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;"

(Emphasis supplied)

18. Again in paragraph 18 of the same
judgement, the Supreme Court held that "a
complete
hands-off
approach
of
no
interference
approach
was
neither
suggested in Himanchal Pradesh Public
Service Commission vs. Mukesh Thakur
and another3 nor has it been suggested in
any other decision of this Court-the case
law developed over the years admits of
interference in the result of an examination
but in rare and exceptional situations and to
a very limited extent."

19. We have also examined the
judgment of the Hon'ble Supreme Court in
the case of High Court of Tripura v.
Tiratha Sarathi Mukherjee4 wherein after
considering number of judgements in this
regard the Supreme Court has held that the
Court can permit revaluation inter alia if it
is demonstrated very clearly without any
inferential process of reasoning or by a
process of rationalisation and only in rare
and exceptional cases that a material error
has been committed.

20. We now proceed in the light of the
principles enunciated by the Supreme
Court. From the perusal of question no. 68
of the test booklet-B, Series-17, it is clear
without undertaking any inferential process
of reasoning that option 'C' was correct.
When the hour hand faces 'North' at 09:00
P.M. then necessarily minute hand will face
'West' at 6:30 A.M. Even, respondents do
not dispute that if the question is
understood in its plain sense, the correct
answer would be option 'C'

21. The question which now arises is
whether a candidate appearing in the
examination was required to interpret the
11 All. Kapil Kumar & Ors. Vs. State of U.P. & Ors.
471
question in the manner suggested by the
respondents. We cannot loose sight of the
fact that the examination was for selection
of Constables. It was not an examination of
Engineering students in respect to whom it
can be assumed that their I.Q. level would
be so high that they would not read the
question in its natural sense, but answer it
after ignoring the first part. In any event, if
the direction of 'hour hand' was fixed by the
first part of the question as facing North,
there was no apparent reason to ignore the
same and consider the latter part alone
while answering the question. Would it not
lead to confusion and ambiguity?

22. In our opinion, the question posed
should be very clear and capable of one
meaning only. The possibility of any other
interpretation should be totally ruled out.

16. We thus held that a complete
hands off approach of no interference has
not been suggested in any of the judgments
cited on behalf of the State otherwise it
would be in derogation of the power of
judicial
review
conferred
on
the
Constitutional Courts. At the same time,
interference
should
be
in
rare
and
exceptional situations where the mistake is
apparent and where it does not involve any
inferential
process
of
reasoning
or
rationalization. It was also held that in fact,
the issue was not regarding option 'C' being
the correct answer when the question is
read in plain sense, but whether a candidate
appearing in the examination is supposed to
answer the question after ignoring its first
part, as suggested by TCS, the agency
which conducted the examination on behalf
of the Recruitment Board. This would
amount
to
entering
into
realm
of
assumption, which, according to us, is
simply not acceptable. A question has to be
given its plain meaning and read as a
whole. The candidates were being tested
for reasoning and logic and not physics.

17. For testing logic and reasoning,
often questions are based on a given
assumption. The assumption on which
question is founded is different from the
actual state of affairs. The candidates are
not supposed to import their understanding
of the actual state of affairs, but answer the
question on basis of the assumptive
premise. A few illustrations of such
questions are noted herein below:-

1. The square root of a number is
defined as division of that number by 4.
What shall be the square root of 64?

2. The gravitational pull on moon is
one third of that of Earth. A man is able to
jump 1 m on Earth with a certain effort.
What height he will be able to jump to at
Moon, with the same effort?

18. A square root of a number is that
number which when squared gives the
original number. In other words, it is the
number whose product by itself gives the
original
number.
According
to
the
definition of square root, the answer to the
first question would be 8, but in the
question asked, an artificial definition has
been given to "square root" and according
to which, correct answer would be 16.
Likewise, it is known to every one that
gravitational pull of Moon is one sixth that
of Earth and therefore, a man would jump 6
meters on Moon with the same effort,
but according to the question asked,
answer would be 3. In such kind of
questions, it is preposterous to suggest
that first part of the question should
be
ignored
for
the
reason
that
statement of fact contained therein is
not correct.
472 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Thus, it is not one of those cases
where the dispute was with regard to
correctness of the key answer but whether
the stand of the Recruitment Board to
ignore first part of the question should be
accepted or not. This, in our opinion, was
something which this Court itself was
empowered to decide, but we preferred to
proceed with extra caution and therefore,
we referred the question for opinion of
subject expert of repute. Accordingly, we
requested Director, Indian Institute of
Technology, Kanpur to nominate an expert
from the Faculty of Mathematics or any
other field, who having regard to the nature
of controversy, would be in position to
assist this Court.

20. The Director, Indian Institute of
Technology, Kanpur nominated Dr. Amit
Mitra,
Professor,
Department
of
Mathematics and Statistics, IIT Kanpur as
the expert. According to his report, it is
option 'C' which is correct and not option
'D'. The relevant extract from his opinion is
extracted below:-

"My
observation
regarding
the
question number 68 of Test Booklet B is:

It is obvious that if at 9 pm, the hour
hand of the clok faces north (i.e. points
towards north), then at 6:30 am the minute
hand would face west. Hence, as per the
statement and option list of question
number 68 of Test Booklet B, the correct
option should be (C) and NOT (D)."

21. Thereafter, counsel for the parties
were supplied with the copy of his report.
Learned
counsel
for
the
State
and
Recruitment Board submitted that even
though the expert has opined in favour of
the appellants, but this Court should
dismiss the appeals as there has been
considerable delay and vacancies have been
carried forward to the next recruitment. In
support of the said contention, reliance has
been placed on the judgement of the
Supreme Court in State of U.P. and others
Vs. Pankaj Kumar (Civil Appeal No.6860
of 2021) decided on 18.11.2021 and Civil
Appeal No.1924 of 2010 Sankar Mondal
Vs. State of West Bengal and others,
decided on 15.02.2022. It is also submitted
that in case of interference, it would
adversely affect those who have already
been selected and appointed.

22. On the other hand, counsel for the
appellants submitted that the appellants
approached this Court immediately after
their individual scores were uploaded on
the official website. It is also contended on
their behalf that the Recruitment Board
admits that after medical examination, 603
posts could not be filled up. It is submitted
that the advertisement for the next
recruitment has yet not been issued and
therefore, there are sufficient vacant posts
still available against which the appellants
can be appointed. Thus, in pith and
substance,
the
issue
which
remains
unresolved is whether this Court should
interfere in the matter or not and if yes, the
relief to which the appellants are entitled
to.

23. Before we advert to the
precedents on the above aspect, we reiterate
some basic facts which are not in dispute:-

(a) The final answer key was uploaded
on the website on 8.11.2019. The individual
marks of the appellants were disclosed on
20.2.2020 and final select list was notified
on 2.3.2020. The appellants thereafter came
to know that they have not been selected
and were falling short by few marks in their
respective category from being selected.
They filed the writ petition before this
11 All. Kapil Kumar & Ors. Vs. State of U.P. & Ors.
473
Court in the month of July, 2020. Thus,
there was no delay on part of the writ
petitioners in approaching this Court.

24. In Sanjay Singh and another Vs.
U.P.
Public
Service
Commission,
Allahabad and another5, the unsuccessful
candidates for selection on the posts of
Civil Judge (Junior Division) challenged
the legality of the statistical scaling system
adopted by the U.P. Public Service
Commission. The Supreme Court held that
the scaling system approved in S.C. Dixit6
case would not be valid for the recruitment
in question. Thereafter, the Supreme Court
proceeded to answer question no. 4 as to
whether it should interfere in the matter or
not. The Supreme Court did not disturb the
appointments of the selected candidates,
but at the same time, granted relief to the
candidates whose aggregate of raw marks
in the written examination and interview
was more than the last selected candidate in
their respective category by directing their
appointment against future vacancies. It
was subject to the rider that the said relief
would be available only to such petitioners
who had approached the Court before
31.08.2005 (final result of the said
selection was declared on 1.5.2005).

25. In Kanpur University Vs. Samir
Gupta and others7 where the combined
Pre-Medical Test was under scrutiny, the
Supreme Court held key answers to various
questions to be incorrect. While granting
relief to the students before it, the Supreme
Court placed embargo on entertainment of
fresh petitions. The relevant observations in
this behalf are as follows:-

22. We understand that some petitions
are pending in the High Court on these very
points. Those petitions will be disposed of
by the High Court in the light of this
judgment, provided that the petitioners
therein make out a case for interference as
the students in these appeals have done. We
however, direct that no fresh petitions
should be entertained by the High Court
and, of course, none will be entertained by
us hereafter on the questions involved in
these appeals arising out of the test which
was held in 1982. The new academic
session is due to commence within the next
few days and these questions cannot be
allowed to be raised in a leisurely fashion
so as to disorganise the scheme of fresh
admissions.

26. Again in Ran Vijay Singh, the
Supreme
Court,
while
permitting
candidates who were successful before the
High Court in assailing the key answers to
be appointed by creating supernumerary
posts, saved the appointment of the
candidates already made.

27. A Division Bench of this Court in
Special Appeal Defective No.343 of 2021
Abhishek Srivastava and others Vs. State
of U.P. and others, again issued similar
directions
and
limited
the
relief
to
candidates who had filed writ petitions by
that time and not to any other candidate,
while
not
disturbing
those
already
appointed.

28.

In
M.
Sudakar
Vs.
V.
Manoharan and others8, the Supreme
Court recognised the power of the writ
court to mould relief depending upon the
facts and circumstances of the case in order
to do complete justice between the parties.

29. In Sankar Mondal (supra), cited
by counsel for the State, the Supreme Court
did not grant relief to the candidates who
approached the writ court after seven years
and also having regard to the fact that
474 INDIAN LAW REPORTS ALLAHABAD SERIES
twenty four years had elapsed by the time
the case was decided by the Supreme
Court. In State of U.P. Vs. Pankaj
Kumar, the Supreme Court did not accept
the contention of the candidates that
intimation sent to them by SMS regarding
stage of selection would not be sufficient
and rejected the contention that intimation
should have been given through post.
While rejecting the claim on merits, it was
also observed that the candidates had not
been vigilant in approaching the High
Court at the earliest opportunity, although
in respect of same selection, certain other
persons had approached the High Court
much earlier.

30. These judgments, in our
opinion, were based on facts of those
cases. In the instant case, as noted
above, the appellants have approached
the Court immediately after their
marks were notified and final result
was uploaded and they came to know
that they were short by a marginal
difference. We have already held that
the Recruitment Board has acted in a
completely
irrational
manner
in
changing the key answer to Question
No.68 of Test Booklet B, Series 17 at
the time of notifying the revised
answer key. Admittedly, there was no
provision for filing objection after the
changes made in the final answer key.
There are still 603 posts vacant after
final round of selection. Although it is
alleged that these posts have been
carried
forward
to
the
next
recruitment, but even advertisement
for fresh recruitment has not been
issued so far. Therefore, we are of
considered
opinion
that
those
appellants who are short of 2.5 marks
(2 marks for correct answer and 0.5
marks deducted for negative marking)
or less from the cut off marks in their
respective categories, are entitled to
be appointed against vacant posts,
provided
they
qualify
the
medical
examination or any other norm prescribed
in this behalf. But this benefit would be
available only to those candidates who had
filed the writ petitions before this Court
soon after the cut off marks were notified
and not to anyone who now approaches this
Court. Those who have already been
selected should also not be disturbed. This
would balance the interest of all sides,
without causing prejudice to any one.

31. Accordingly, we set aside the
judgement of learned Single Judge and
dispose of the instant appeals with the
following directions:-

(a) The Recruitment Board will revise
the result of written examination of such of
the appellants who are short of 2.5 or less
marks from the cut off marks in their
respective categories.

(b) The Recruitment Board will hold
their medical examination and in case they
succeed on all other parameters, they shall
be appointed against the posts which
remained vacant after the final round
of recruitment. The aforesaid exercise
shall be carried out within six weeks
from today after due intimation and
public notice to all concerned.

(d) These candidates, if selected
finally, will be placed at the bottom of
the seniority list, while maintaining
their inter-se merit position and they
shall
be
entitled
to
salary
and
allowances only from the date of their
actual
appointment,
as
admissible
under the Service Rules.

(e) The aforesaid benefits shall
only be available to those who have
11 All. Authorized officer, Prathama U.P. Bank, Moradabad Vs. Smt. Manjeet Kaur
475
approached this court so far and not to
any other candidate.
----------
 (2023) 11 ILRA 475
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DONADI RAMESH, J.

Special Appeal No. 541 of 2023
with
Spl.Appeal. No. 410 of 2023
&
Spl. Appeal Defective No. 536 of 2023

Authorized officer, Prathama U.P. Bank,
Moradabad ...Appellant
Versus
Smt. Manjeet Kaur ...Respondent

Counsel for the Appellant:
Sri Sachin Mishra

Counsel for the Respondents:
Sri Ajay Kumar Mishra

A. Compassionate Appointment - Scheme
for
Appointment
on
Compassionate
Grounds/Payment
of
Ex
Gratia
-
Interpretation
of
Clause
8
-
Retrospective Application - Whether
Scheme dated 10.5.2019 applies to
deaths
occurring
before
its
enforcement on 01.03.2019 - Time
limit for application under Clause 8.1
and 8.2 - Whether five-year period for
filing application includes deaths prior
to Scheme's enforcement.

Held:
The
Scheme
for
Appointment
on
Compassionate
Grounds,
effective
from
01.03.2019, does not expressly provide for
retrospective application to cover deaths of
employees occurring before its enforcement.
Clause 8.1, which stipulates a five-year period
for
filing
applications,
applies
to
deaths
occurring when the Scheme was already in
force, not to deaths predating its introduction.
The interpretation in Chairman, Baroda U.P.
Bank Vs Jitendra (Special Appeal No. 270 of
2023),
holding
that
Clause
8.2
gives
retrospective
effect
to
the
Scheme,
is
inconsistent with Supreme Court judgments,
particularly
Secretary
to
Government
Department
of
Education
(Primary)
Vs
Bheemesh alias Bheemappa, which emphasize
that compassionate appointment is not a vested
right and is subject to the Scheme in force on
the date of death. Judicial opinion favors strict
construction of compassionate appointment
schemes as exceptions to normal recruitment.
Due to conflict with the Co-ordinate Bench
decision in Jitendra, the matter is referred to a
Larger
Bench
to
determine
whether
the
interpretation of Clause 8 in Jitendra is
sustainable
in
light
of
Supreme
Court
precedents. (Paras 12-16)

B. Reference to Larger Bench - Judicial
Propriety - Conflict of Interpretation - Coordinate Bench Decision.

Held: Where a Co-ordinate Bench decision
(Jitendra) interprets Clause 8 of the Scheme to
have
retrospective
effect,
but
such
interpretation conflicts with Supreme Court
rulings and another Single Judge decision
(Bechan Giri), judicial propriety requires the
issue to be resolved by a Larger Bench.
Question referred: "Whether the interpretation
given to Clause 8 of the Scheme dated
10.5.2019 in Chairman, Baroda U.P. Bank Vs
Jitendra and Others and analogous Schemes, is
sustainable in law, in view of judgment of
Supreme Court in Secretary to Government
Department of Education (Primary) and Others
Vs Bheemesh alias Bheemappa and other
judgments?" (Para 16)

Case Law Discussed:

1. Canara Bank Vs M. Mahesh Kumar

2. S.B.I. Vs Jaspal Kaur

3. Indian Bank Vs Promila

4. N.C. Santosh Vs St. of Karn.

5. St. of Madhya Pradesh Vs Ashish Awasthi