# Mohd. Akram Siddeeque & Ors v. State of U.P. and Ors 58 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2014) 1 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-13
- **Case number:** Civil Misc. Writ Petition No. 51811 of 2013
- **Bench:** Rajes Kumar, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-akram-siddeeque-ors-v-state-of-u-p-and-ors-58-indian-law-reports-allahabad-42929
- **Pages:** 14

## Headnote

Constitution of India, Art.-226-Service LawDeletion of certain question from evaluation
zone-by Public Service Commission-and
distribution of those marks on proportionate
basis to remaining questions-based upon
expert conflicting opinion-can not be heldarbitrary-power of judicial review can not be
exercised by Writ Court by sit over the
wisdom of commission-follow up direction
issued-petition disposed of.

Held: Para-11
Accordingly,
the
view
taken
by
the
Commission that there had been two
conflicting expert reports, therefore, the
deletion of those questions from the zone of
consideration would be a safer option,
cannot be said to be arbitrary in the facts
and circumstances of the case, so as to call
for interference in exercise of our power of
judicial review. It is quite possible that the
answer suggested by the petitioners may
be correct, but unless we are in a position
to adjudicate on their correctness, we
cannot
sit
over
the
wisdom
of
the
Commission, particularly in the light of the
apex court's decision noticed herein above.

Case Law discussed:
JT 2013(9) SC 562; AIR 1983 SC 1230; JT
2010(6) SC 326.

## Text

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1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
57
Consequently, holding a fresh inquiry is
not a feasible option.

8. With regard to reinstatement, the
Court is also of the opinion that for such
stale matters, reinstatement is also not a
feasible option, especially when it has
come to the knowledge of the Court that
the factory has closed down.

9. The Court further finds that even
though, the award was sent to the
government on 27th November, 1993, the
State Government sat over the matter for 10
years and only published it on 22nd July,
2004. For these 11 years the employer
should not be saddled with paying back
wages to the workman since the employer
was not at fault.

10. In the light of the aforesaid, the
Court is of the opinion that the only
feasible option at this stage is to grant
lump sum compensation to the workman
in lieu of reinstatement and back wages.

11. As stated aforesaid, for calculating
back wages and compensation, the period
from 1993 i.e. from the date of the award till
the award is published in 2004 should not be
taken into consideration.

12. The workman has come forward
and has stated on an affidavit that he is
unemployed. The record also suggests that he
is a farmer and, consequently, must be tilling
his land, but no proof has been filed by the
petitioner on an affidavit that the workman is
gainfully employed in an industry.

13. Considering the aforesaid fact
that the petitioner may have remained
unemployed from 1987 onwards i.e. from
the date of the award and that pursuant to
the publication of the award, no amount
from 2004 till date has been paid to him
and considering the inflation and rise in
the
price
index
of
the
essential
commodities, the Court is of the opinion
that a lump sum payment of Rs.5,00,000/-
(Rs.5 lacs) would be substantial to meet
the ends of justice.

14. Consequently, the writ petition is
partly allowed. The award of the Labour
Court directing reinstatement with back
wages is modified to the extent that the
petitioner would pay compensation of
Rs.5,00,000/- (Rs.5 lacs) to the workman
within six weeks from today in lieu of
reinstatement with back wages.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MANOJ MISRA, J.

Civil Misc. Writ Petition No. 51811 of 2013
connected with No. 50305 of 2013, no.
50833 of 2013, no. 51295 of 2013, no.
51328 of 2013, no. 51422 of 2013, no.
51494 of 2013, no. 51694 of 2013, no.
51760 of 2013, no. 51996 of 2013, no.
52498 of 2013, no. 52548 of 2013, no.
52774 of 2013, no. 52806 of 2013, no.
52846 of 2013, no. 52885 of 2013, no.
52897 of 2013, no. 52983 of 2013, no.
53136 of 2013, no. 53227 of 2013, no.
53532 of 2013, 54445 of 2013, no. 53930 of
2013, no. 57020 of 2013, no. 56948 of 2013,
no. 55848 of 2013, no. 56351 of 2013, no.
57470 of 2013, no. 57469 of 2013, no.
57536 of 2013, no. 59112 of 2013, no.
59136 of 2013, no. 59203 of 2013 and no.
62386 of 2013.

Mohd. Akram Siddeeque & Ors. Petitioners
Versus
State of U.P. and Ors.... Respondents
58 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Rakesh Pande, Sri Murli Dhar Mishra
Sri Anil Tiwari

Counsel for the Respondents:
C.S.C., Sri Manish Goyal, Sri V.P. Mathur
Sri A.K. Sinha

Constitution of India, Art.-226-Service LawDeletion of certain question from evaluation
zone-by Public Service Commission-and
distribution of those marks on proportionate
basis to remaining questions-based upon
expert conflicting opinion-can not be heldarbitrary-power of judicial review can not be
exercised by Writ Court by sit over the
wisdom of commission-follow up direction
issued-petition disposed of.

Held: Para-11
Accordingly,
the
view
taken
by
the
Commission that there had been two
conflicting expert reports, therefore, the
deletion of those questions from the zone of
consideration would be a safer option,
cannot be said to be arbitrary in the facts
and circumstances of the case, so as to call
for interference in exercise of our power of
judicial review. It is quite possible that the
answer suggested by the petitioners may
be correct, but unless we are in a position
to adjudicate on their correctness, we
cannot
sit
over
the
wisdom
of
the
Commission, particularly in the light of the
apex court's decision noticed herein above.

Case Law discussed:
JT 2013(9) SC 562; AIR 1983 SC 1230; JT
2010(6) SC 326.

(Delivered by Hon'ble Rajes Kumar J.)

1. In these bunch of writ petitions,
we took Writ Petition No.51811 of 2013
as the lead petition and, on 26.09.2013,
we passed a detailed order, which not
only elucidates the controversy involved
in these petitions but also seeks to
partially resolve the same. As the said
order is self-explanatory, it would be
useful for us to reproduce the same, as
under:

"Order dated 26.09.2013:

By this petition, which we take up as
a leading petition, amongst a bunch of
writ petitions with same or similar
prayers, the petitioners have assailed the
select list dated 09.09.2013 notified/
published by the U.P. Public Service
Commission (hereinafter referred to as the
Commission) of U.P. Judicial Service,
Civil Judge (Junior Division) Preliminary
Examination 2013 with a prayer to direct
the respondents to permit the petitioners
to appear in the U.P. Judicial Service,
Civil Judge (Junior Division) Mains
Examination, 2013, which are scheduled
to be held from 28.09.2013 up to 30th
September 2013.

We have heard learned counsel for
the petitioners appearing in various
petitions dealing with the same issue and
Sri A.K. Sinha, who has appeared on
behalf of the Commission.

The
brief
facts
are
that
the
Commission issued an advertisement
inviting applications for U.P. Judicial
Service, Civil Judge (Junior Division)
Examination, 2013, which is to be
conducted in two parts-- preliminary and
mains. According to the petitioners, they
applied pursuant to the advertisement and
appeared in the preliminary examination.
The preliminary examination comprises of
two papers. The first paper is of General
Studies comprising 150 questions of 1 mark
each totaling 150 marks and the second
paper is of Law comprising 150 questions
of 2 marks each totaling 300 marks.
Accordingly, the select list of candidates,
short listed for the Main Examination, is
1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
59
prepared on the basis of total marks
obtained in both papers that is, out of 450
marks. According to the petitioners, which
has not been disputed by the learned
counsel for the Commission, the Cut Off
Marks--category-wise--are as follows: 305
for the General; 303 for OBC; 270 for S.C.;
224 for S.T. and 291 for Female.

It is not disputed that the questionbooks for the preliminary examination
were in four series i.e. A, B, C, and D. All
the four series of question papers carried
the same questions but in the different
serial order which, according the learned
counsel for the Commission, is a practice
usually adopted by examining bodies to
prevent use of unfair means. All questions
are objective type with four alternative
answers for each question. A candidate is
required to select one of the four answers.
The answers are to be rendered in OMR
sheets,
which
is
provided
to
the
candidates at the examination center. The
filled OMR sheet is to be submitted by the
candidate at the examination center for
evaluation. As per the procedure, before
declaration of the result i.e. the select list,
the key answers to the questions are
uploaded, and thereby notified, in the
website of the Commission so as to
enable the candidates to submit their
objections, if any, to the answers
displayed in the web site. According to
the petitioners, which has not been
disputed by the learned counsel for the
Commission, the objections are placed
before an expert body i.e. a committee
which consider the objections and,
thereafter, decides either to correct the
answer, by changing the option notified,
or to delete the question itself from the
zone of evaluation. It is the case of the
Commission's counsel that where a
decision is taken to delete a question from
the zone of evaluation its assigned marks
are evenly distributed to the remaining
questions, which often results in awarding
of marks in decimals. If the decimal count
obtained is higher than 0.5 it is rounded
off to the next higher digit, but where it is
0.5 or less it is rounded off to the next
lower digit. Relying on the aforesaid
procedure, the learned counsel for the
Commission has sought to explain the
award of odd marks, particularly, in those
cases where a challenge has been made by
some of the petitioners, based on self
evaluation, that there was no possibility of
receiving odd marks, as awarded to them.

According to the petitioners on
20.08.2013, the Commission published
key answers to the questions on its
website and invited objections, fixing
27.08.2013 as the last date. It is the case
of the petitioners that there were several
questions where either the key answers
were not correct or the question framed
was such where no answer provided, by
way of option, was correct or there were
multiple possible answers, by way of
options,
rendering
evaluation
meaningless. It is further the case of the
petitioners that despite several objections
to such questions, by a multitude of
candidates, the Commission did not
publish the key answers finalized after
consideration of the objections, and
straight away published the select list. It is
the case of the petitioners that on account
of faulty questions or faulty answers the
final select list has been materially
affected thereby affecting selection on
merit, which is the primary concern for
holding an open competitive examination.
It has been submitted that in view of the
principle of law laid down by the apex
court in the case of Abhijit Sen and others
Vs. State of U.P. and others: (1984) 2
SCC 319; Manish Ujwal and others Vs.
Maharishi Dayanand Saraswati University
60 INDIAN LAW REPORTS ALLAHABAD SERIES
and others: (2005) 13 SCC 744; and
Kanpur
University
through
ViceChancellor and others Vs. Samir Gupta
and others: (1983) 4 SCC 309, this court
has ample power to scrutinize the
questions as well as the answers so as to
infer whether there has been an error on
the face of record or not and to take
remedial action.

Various
questions
and
their
respective answers provided as key
answers, published in the website, were
shown to the Court on earlier date, in
various writ petitions, for the purpose of
demonstrating that either the questions
were faulty or the answers provided to
those questions were not correct.

We, accordingly, directed Sri A.K.
Sinha,
learned
counsel
for
the
Commission, to seek instructions and
provide to the Court the altered key
answers, which were adopted by the
Commission for evaluating the OMR
sheets, after receipt of objection from the
candidates, so as to enable the Court to
satisfy itself whether the alleged mistake
in the question-answer stood rectified or
not.

Pursuant to our direction, Sri A.K.
Sinha supplied the required information in
sealed cover from which we find that in
Law Paper as many as six key answers
were changed and two questions were
deleted
whereas
in
the
General
Knowledge paper five key answers were
changed and four questions were deleted.
In the report, at two places, it was
mentioned that the question "may be
deleted" which, according to Sri A.K.
Sinha, should be treated as having been
deleted, therefore, we have already put
them in the tally of deleted questions.

After
receipt
of
the
above
information, the learned counsel for the
respective petitioners were informed of
the changed position in key answers and
they were, accordingly, requested to
confine their arguments to such questions
only where the answers were either not
changed or the answers, so changed, were
not correct as also to such questions
where the question itself was such, which
required deletion.

The
learned
counsel
for
the
petitioners,
accordingly,
drew
the
attention of the Court to such questions. It
would, therefore, be useful for us to
enumerate those questions and deal with
them separately.

For convenience, we are discussing
the questions subject-wise, as they figured
in "A-Series" Paper. The details are being
provided herein below:

LAW PAPER

Question No.10 in "A-Series" of Law
Paper.
"10. Where a compromise was arrived
between parties to a suit by playing fraud,
misrepresentation or mistake and a decree
was passed with the consent of the parties,
then the suffering party may select which
one of the following alternatives for
setting aside such decree?

(a) Through appeal

(b) Through revision

(c) Through review

(d) Through a second suit"

According
to
the
Commission,
option "d" was the correct answer.

The submission of the learned
counsel for the petitioners is that the said
option was not the correct answer,
inasmuch as, it fails to take into
consideration Order 23 Rule 3A of the
Civil Procedure Code, which was inserted
in the Code with effect from 01.02.1977,
which reads as follows:

"3-A. The bar to suit- No suit shall
lie to set aside a decree on the ground that
1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
61
the compromise on which the decree is
based was not lawful."

Without expressing any authoritative
opinion with regards to maintainability of
a suit in view of the bar under Order 23
Rule 3A C.P.C., suffice it to say that the
law on the point is in a developing stage
and there may be conflicting view points
taking
into
account
different
fact
situations. However, for a candidate who
is still to be trained in the field of law, the
answer "through a second suit" is
definitely not the correct answer in view
of the statutory provision i.e. Order 23
Rule 3-A CPC as well as the apex court
decision in the case of Pushpa Devi
Bhagat Vs. Rajendra (2006) 5 SCC 566:
AIR 2006 SC 2628. Although, there are
few authorities which may hold that a suit
would be maintainable where there is a
contest on the question whether there was
a compromise or not and in such a case it
could be said that there was no consent
decree, therefore, even the bar under
section 96(3) CPC would have no
application (vide Kishun Vs. Bihari 2005
(6) SCC 300), but generally speaking
option (d), cannot be accepted as the
correct answer. Ordinarily in objective
type questions when answers are provided
by way of option, the correct answer
should not be debatable that is, it should
be without doubt so that there is no scope
for explanation.

In our view, we find that this
Question No.10 in "A series" of law paper
was liable to be deleted and in any case
the option (d) cannot be accepted as the
correct answer in view of Order 23, Rule
3-A CPC.

Question No.31 in "A-Series" of Law
Paper.

"31. Under Section 41 of Criminal
Procedure Code, the power of police to
arrest a person

(a) covers all cases

(b) is limited to cases of mere
suspicion

(c) is limited to cases of reasonable
suspicion

(d) does not cover cases of Army
deserters"

According to the Commission, the
correct answer is "c".

The submission of the learned
counsel for the petitioners is that the
question itself is ambiguous as also the
key answer inasmuch as the powers of
police to arrest a person under Section 41
CrPC covers all cognizable offences and
thus option (a) would be the right answer,
while in view of the words used in
Section 41 (1) (a) Cr.P.C., even option (b)
could the correct answer and similarly in
view of the words used in Section 41 (1)
(b), even option (c) could be the correct
answer.

Having
examined
the
question
carefully, we are of the view that the
option (c) would not be the correct answer
as the power under Section 41 is not
limited to the cases of reasonable
suspicion. Whether the police has power
to arrest an Army deserter or not, we are
unable to express any opinion, at this
stage, in absence of assistance on that
count. However, in any case, the option
(c) cannot be countenanced. If option (d)
is not the correct answer then the question
is liable to be deleted.

Question No.45 in "A-Series" of Law
Paper.

"45. Which one of the following is
not a secondary evidence?

(a) Copies made from the original by
mechanical process

(b) Copies made from or compared
with the original

(c) Counterparts of documents

(d) Lithography"
62 INDIAN LAW REPORTS ALLAHABAD SERIES

According to the Commission, the
correction option is (d).

Learned counsel for the petitioners
placed before us Section 62 of the Indian
Evidence Act, which reads as follows:-

"62. Primary evidence.- Primary
evidence means the documents itself
produced for in the inspection of the
Court.

Explanation 1.- Where a document is
executed in several parts, which part is
primary evidence of the document:

Where a document is executed in
counterpart,
each
counterpart
being
executed by one or some of the parties
only,
each
counterpart
is
primary
evidence as against the parties executing
it.

Explanation 2.- Where a number of
documents are all made by one uniform
process, as in the case of printing,
lithography, or photography, each is
primary evidence of the contents of the
rest; but, where they are all copies of a
common original, they are not primary
evidence of the contents of the original.

Illustration

A person is shown to have been in
possession of a number of placards, all
printed at one time from one original. Any
one of the placards is primary evidence of
the contents of any other, but no one of
them is primary evidence of the contents
of the original."

Relying
on
Explanation-1,
the
learned
counsel
for
the
petitioners
submitted that where a document is
executed in several parts, each part is
primary evidence of the document and
where a document is executed in
counterpart,
each
counterpart
being
executed by one or some of the parties
only,
each
counterpart
is
primary
evidence as against the parties executing
it. The learned counsel for the petitioners
thus pointed out that more than one option
was correct and, therefore, this Question
No.45 was liable to be deleted.

We find substance in the argument of
the learned counsel for the petitioners as
the aforesaid position is clear on a plain
reading of Explanation 1 of Section 62 of
the Evidence Act. Thus, question no.45
ought to have been deleted.

Question No.100 in "A-Series" of
Law Paper.

"100. Does United Nations, as an
organization, has the capacity to bring an
international claim against a State in the
International Court of Justice?

(a) Yes, because United Nations is
also deemed to be a State

(b) No, because International Court
of Justice is open to the State Parties in
the State only

(c) Yes, because United Nations has
a legal personality.

(d) None of the above is correct"

According to the Commission, the
correct option is (a).

Whereas, according to the learned
counsel for the petitioners, the correct
option should be (b) as according to
Article 34 of Chapter II of the Charter of
the United Nations only States may be
parties in cases before the International
Court of Justice and since United Nations
is not a State, therefore, it cannot bring a
claim against the State in the International
Court of Justice.

We are not in position to give any
conclusive opinion with regards to the
said
question
in
absence
of
any
authoritative material provided to us.
However, this is a matter which may be
examined and reviewed by the expert
body.

Question No.122 in "A-Series" of
Law Paper.
1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
63

"122. The binding force behind the
Directive Principles of State Policy is

(a) Public Opinion

(b) Government

(c) Constitution

(d) Administration"\

According to the Commission, the
correct answer is option (a).\

The
learned
counsel
for
the
petitioners submitted that the Directive
Principles of State Policy may not have
binding force at all, but if they have any
force it is because of the Constitution and
not the Public Opinion, therefore, the
correct option ought to have been (c) and
in any case the option (a) cannot be the
correct answer.

We find substance in the argument of
the learned counsel for the petitioners
because if there is any force behind the
Directive Principles of State Policy it is
because of the Constitution. In any case,
we feel that the question itself is
ambiguous and the expert committee may
consider deleting the same.

Question No.99 in "A-Series" of Law
Paper.

"99. What was the 'theme' for the
world Human Rights Day, 2012?

(a) All Human Rights for all.

(b) Women's Right as Human Right.

(c) Inclusion and the right to
participation in public life.

(d) Human Rights as People's Right."

According to the Commission, the
right answer for the aforesaid is option
(a).

The submission of the learned
counsel for the petitioners is that the
original answer given in the website to
Question No.99 was option (c) but it
appears that on objection by some
candidates it was changed to (a).

Before us, several print out obtained
from
various
websites
have
been
produced to demonstrate that Human
Rights Day, 2012 was for inclusion and
the right to participation in public life and,
therefore, the learned counsel for the
petitioners submitted that the original
answer i.e. option (c) was correct whereas
the changed answer i.e. option (a) is
incorrect.

We are not in a position to
authoritatively render our opinion to
aforesaid question but it, prima facie,
appears to us from the print out produced
by the learned counsel for the petitioners
that the original answer i.e. option (c) was
correct and that the changed answer is not
correct. However, we leave it open to the
expert committee to review the same.

Question No.103 in "A-Series" of
Law Paper.

"103. What is the number of States
with 'nuclear capabilities' as listed in
Annexure 2 of C.T.B.T. (Comprehensive
Nuclear Test Ban Treaty) ?

(a) 8 States

(b) 44 States

(c) 15 States

(d) 35 States"

According to the Commission, the
answer originally was option (b), which
was subsequently changed to option (a)
on the basis of expert opinion after
receiving objection.

The submission of the learned
counsel for the petitioners is that this
change is not correct and the original
answer option (b) is correct because there
are 44 States listed in Annexure 2 of
C.T.B.T. (Comprehensive Nuclear Test
Ban Treaty). In order to substantiate the
aforesaid submission, the learned counsel
for the petitioners produced before us
various print out from the websites of the
U.S. Department of State--Diplomacy in
Action, disclosing total number of States
64 INDIAN LAW REPORTS ALLAHABAD SERIES
listed in Annexure 2 of C.T.B.T as 44
whereas 8 out of those states have not
signed CTBT.

We are not in a position, at this stage,
to give any conclusive pronouncement on
the aforesaid position, however, prima
facie, from the material produced before
us we are satisfied that this answer also
requires review by the expert committee.

GENERAL KNOWLEDGE PAPER

Question No.16 in "A-Series" of
General Knowledge Paper.

"16. Most of the production of
Natural Gas in India comes from

(a) Andhra Pradesh Coast

(b) Gujarat Coast

(c) Bombay High

(d) Tamil Nadu Coast"

According to the Commission, the
correct answer is option (a).

The submission of the learned
counsel for the petitioner is that as per the
website information provided by the
Ministry of Petroleum and Natural Gas,
Bombay High is the largest purchaser of
natural gas in India, therefore, the answer
i.e. option (a) is not correct. To
substantiate the aforesaid contention, the
learned counsel for the petitioners, vide
Annexure 9 in writ petition no.51422 of
2013, has enclosed various material.

We find that, prima facie, there is
some substance in the submission of the
learned counsel for the petitioners with
regards
to
the
aforesaid
position.
However, in absence of any authoritative
document, we are not in a position to
render any conclusive opinion in that
regard but considering the material
produced before us, we find, prima facie,
that this aspect also requires to be
examined by the expert body by way of
review.

Question No.72 in "A-Series" of
General Knowledge Paper.

"72. Who is authorised to issue coins
in India ?

a) RBI

(b) SBI

(c) Ministry of Finance

(d) None of the above

According
to
the
Commission,
initially correct option uploaded in the
website was option (c) i.e. Ministry of
Finance, which, upon objection by
candidates, was changed to option (a) i.e.
RBI.

Learned counsel for the petitioners
submitted that under the Indian Coinage
Act, 1906, vide Section 6 thereof, coins
may be coined at the Mint for issue under
the authority of the Central Government,
of such denominations not higher than
one hundred rupees, of such dimensions
and designs, and of such metals or of
mixed metals of such composition as the
Central Government may, by notification
in the official Gazette, determine. Court
has been informed that no coin of a
denomination higher than rupees hundred
has been issued, therefore, coins can only
be issued under the authority of the
Finance Ministry and not by the RBI and,
as such, the option (c) was the correct and
it was wrongly changed to option (a).

We find, prima facie, substance in
the submission of the learned counsel for
the petitioners in this regard. However, it
is for the expert committee to examine the
provisions of law and come to a definite
conclusion in this regard.

Question No.76 in "A-Series" of
General Knowledge Paper.

"76. Which two countries signed
agreement for the modernization of Indian
Railways ?

(a) India and Belgium

(b) India and China

(c) U.S.A. And India

(d) Russia and India"
1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
65

According to the Commission, the
correct answer is option (a).

The
learned
counsel
for
the
petitioners, relying on certain reports,
submitted that
there
had
been
an
agreement between Indian and China in
respect of exchange of technical know
how for the Railways but there has never
been any agreement between India and
Belgium, therefore, option (a) cannot be
correct.

We are not in a position to express
any authoritative opinion in that regard,
particularly,
in
absence
of
any
authoritative material placed by the
learned counsel for the petitioners.
However, we feel that this a matter which
may require reconsideration by the expert
body.

Question No.133 in "A-Series" of
General Knowledge Paper.

"133. Which one of the following is
used in making bullet proof materials ?

(a) Polyvinyl chloride

(b) Polycarbonate

(c) Polyethylene

(d) Polyamide"

According to the Commission, the
correct answer is option (b).

The submission of the learned
counsel
for
the
petitioner
is
that
Polyamide is also a substance for making
bullet proof material. Certain printout
obtained from website has been brought
to our notice to suggest that Polyamide is
also used for making bullet proof
material. The submission of the learned
counsel for the petitioner is that since
Polyamide is also used for making bullet
proof material there was no more than one
correct answer, hence such question ought
to have been deleted.

We are not in a position, at this stage,
to
render
any
authoritative
pronouncement on the aforesaid subject in
absence of authoritative material or
scientific advice. We are, however, of the
view, on the basis of the material
provided by the learned counsel for the
petitioners, that there appears some
substance in the submission of learned
counsel for the petitioner and, therefore, it
may be reviewed by the expert body.

At this stage, we may observe that
certain other questions were also placed
before us so as to dispute the authenticity
of their answers which, upon, prima facie,
assessment, were not found worthy of our
attention, we, therefore, do not consider it
necessary to discuss them in our order.
Further, there were questions which,
according to the learned counsel for the
petitioners,
were
wrongly
deleted.
However, we are of the view that as these
questions were deleted upon expert advice
and their marks were distributed across
the board to the remaining questions it
may not materially affect the result and
even if it does, the opinion of the expert
body in favour of deletion should be
respected.

In view of our detailed examination
of the disputed questions, we are, prima
facie, satisfied that on account of faulty
questions or their answers, the final select
list declared by the Commission require
review.
We
are
satisfied
that
the
Commission requires to re-examine those
questions with a view, either, to delete the
same from the zone of consideration or to
review the answer provided to those
questions with the aid of an expert body.

We, therefore, direct the Commission
to appoint an expert body of such number
of members, as it may deem fit or
prescribed by the Regulations, if any, in
this regard, who are well versed with the
subject
concerned,
having
good
credentials, within a period of one week
from today, for doing the needful exercise
66 INDIAN LAW REPORTS ALLAHABAD SERIES
of the reviewing the questions, including
their answers, as enumerated herein
above. The expert body, so constituted,
will review the questions that have been
noticed by us, in the light of the
observations made in this order, and
would submit its report along with
material in support thereof, within one
week from the date of its constitution i.e.
on 10.10.2013.

In view of the fact and circumstances
narrated above, as there is high probability
that the final select list may have to be
altered
the
holding
of
the
Mains
Examination, before completion of the
above exercise, would be an exercise in
futility. We, therefore, direct that till further
orders of this Court, the Mains Examination
of U.P. Judicial Service, Civil Judge,
(Junior Division), 2013 scheduled to be held
from 28.09.2013 to 30.09.2013 will not be
held and a notice to that effect will be
published
by
the
Publish
Service
Commission in newspapers as well as by
uploading in the website.

List on 10.10.2013 along with other
connected petitions."

2. Pursuant to our order dated
26.09.2013, a fresh expert body was
constituted, which submitted its report on
9.10.2013. The report was produced
before us in sealed cover on 10.10.2013.
As no decision was taken by the
Commission on the report so submitted,
we directed the matter to be taken up on
28.10.2013. On 28.10.2013, a short
affidavit dated 27.10.2013 was filed on
behalf of the Commission wherein, in
paragraph 6 thereof, it was stated that the
Commission convened a meeting on
24.10.2013 and took fresh decision as per
the expert report by deleting 07 questions
in total in law and 02 questions in General
Knowledge. As it was not clear whether
the deletions reported in the affidavit
would be inclusive of the deletions made
earlier, we, on 28.10.2013, passed the
following order:

"Order dated 28.10.2013

A short counter affidavit filed today,
is taken on record.

In paragraph no.6 of the counter
affidavit, it is stated that the Commission
has convened a meeting on 24.10.2013 in
which the sealed cover of the expert
opinion was opened and a fresh decision
was taken, in the light of the expert
opinion, by deleting seven questions in
Law Paper and two questions in General
Knowledge.

The said expert opinion has been
produced before us in sealed cover.

On consideration of the entire
material, we are of the view that the
affidavit
filed
on
behalf
of
the
Commission is lacking in essential
particulars, which are enumerated herein
below:-

1. In our earlier order, we had
noticed that the Commission deleted two
questions in Law Paper and four questions
in General Knowledge. There is no
averment in the affidavit whether those
deletions still stand, in addition to the
further deletion reported in the affidavit.
The averment in this regard should have
been made in the affidavit.

2. In our earlier order, with respect to
the
law
paper,
we
had
discussed
objections to as many as seven questions.
Out
of
seven
questions,
we
had
recommended for the deletion of the
question no.10, 31, 45 and 122. However,
in respect of question nos.99, 100 and
103, we had asked the Commission to get
fresh opinion from the expert.
The expert committee report reveals that
answer of question no.99 of the Law
Paper has been proposed to be changed
1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
67
from "a" to "c". The answer of question
no.103 of the Law Paper has been
proposed to be changed from "a" to "b".
The answer of question no.100 of the Law
Paper has been proposed to be changed
from "c" to "b". Likewise, the answer of
question no.16 of the General Knowledge
has been proposed to be changed from "a"
to "c". The answer of question nos.72 and
76 of the General Knowledge have been
maintained whereas the question no.133
of the General Knowledge has been
deleted.

There is nothing in the Resolution
passed in the meeting dated 24.10.2013 so
as to indicate as to why the proposed
changed answers were not accepted and
instead the said questions were deleted. If
the answer suggested by the Expert
Committee has been substantiated by
material and there is no contrary material
on record then why those questions were
deleted should be borne out from the
affidavit of the Commission.

We are, therefore, of the view that
proper exercise have not been undertaken
by the Commission while taking the
decision.

In view of the above, we direct the
Commission to take a fresh decision in
the matter and file affidavit making
specific averments.

Such
exercise
be
made
by
13.11.2013.

List on 13.11.2013."

3. In pursuance of our order dated
28.10.2013, on 13.11.2013, on behalf of the
Commission, affidavit dated 13.11.2013
was filed. In this affidavit it was clarified
that before declaration of results the
Commission, after inviting objections and
obtaining expert report thereupon, had taken
a decision to delete 2 questions in law paper
and 4 questions in General Knowledge
paper. Thereafter, pursuant to our order
dated 26.09.2013, upon obtaining fresh
expert report, 7 questions in law paper
including 4 questions which we, by our
order dated 26.09.2013, had suggested for
deletion, were deleted along with 2 more
questions in the General Knowledge paper.
In paragraph 3 of the affidavit it was
submitted that the deletion made after the
fresh expert report was in addition to the
deletions earlier made by the Commission.
In the affidavit it was submitted that the
decision to delete three questions in the law
paper i.e. 99, 100 (incorrectly typed as 11)
and 103 was taken to avoid further
controversy as there were contradictory
expert reports. Likewise, question no.16 in
the General knowledge paper was deleted
for there being contradictory expert reports.
Whereas question nos.72 and 76 of the
General Knowledge paper were maintained
as they found support from the second
report as well, though question no. 133 was
deleted on the basis of the subsequent
expert report.

4. Thus, in sum and substance the
stand of the Commission had been that
wherever there had been contradictory
opinion in the two expert reports either
with regard to the correctness of the
answer to the question or with regards to
there being more than one correct option
to the question, a decision was taken to
delete the same from the zone of
evaluation and to add its marks on prorata basis to the remaining questions.

5. The learned counsel for the
petitioners submitted that in respect of
three questions in the law paper, namely,
question Nos. 99, 100 and 103, the second
expert report had advised for change of
answer and as there was one correct
68 INDIAN LAW REPORTS ALLAHABAD SERIES
answer available, in the option, as per the
advice of the Review Committee Report,
the deletion of those questions from
evaluation would affect the meritorious
students,
who
had
answered
those
questions
correctly,
therefore,
the
Commission
should
be
directed
to
evaluate those questions with reference to
the answer provided by the Review
Expert Committee.

6. In addition to above, the learned
counsel for the petitioners submitted that
there was no justification to delete question
No. 16 of the general knowledge paper as
the Review Committee had supported that
there was one possible correct answer in the
options provided in the question paper.
Thus, in sum and substance, the argument
from the petitioners' side is that when the
Review Expert Committee report had
supported its view by some material on
record, the Commission ought not to have
deleted those questions from evaluation
merely on ground that there had been
conflicting expert reports with regards to the
correctness of the answers to those
questions.

7. Per Contra, Sri A.K. Sinha, learned
counsel for the Commission, strenuously
argued that Commission by itself is not an
expert to judge whether an answer is correct
or not. The correctness of the question or of
the answer has to be ascertained by an
Expert Body. As there were two expert
bodies rendering conflicting opinions, the
Commission adopted the safer course of
deleting those questions from evaluation
and distributing the marks of those
questions on prorata basis to all the
remaining questions so that no individual
person would suffer. It was submitted that
as the correct answer in the remaining
questions would fetch higher marks, the
meritorious student would not be affected
by deletion of any erroneous question. Sri
A.K. Sinha further submitted that the
deletion of a defective question and
distribution of its marks on prorata basis to
the remaining questions is an accepted norm
and the same has been approved by the
Apex Court. In this regard, reliance has
been placed on a decision of the Apex Court
in the case of Vikas Pratap Singh and Ors.
v. State of Chhattisgarh and Ors. : JT 2013
(9) SC 562, wherein, in paragraph 16, it was
observed as follows:-

"16. In respect of the respondentBoard's propriety in taking the decision of reevaluation of answer scripts, we are of the
considered view that the respondent-Board is
an independent body entrusted with the duty
of
proper
conduct
of
competitive
examinations to reach accurate results in fair
and proper manner with the help of Experts
and is empowered to decide upon re-
evaluation of answer sheets in the absence of
any specific provision in that regard, if any
irregularity at any stage of evaluation process
is found. (See: Chairman, J & K State Board
of Education v. Feyaz Ahmed Malik and
others, (2000) 3 SCC 59 and Sahiti and Ors.
v. The Chancellor, Dr. N.T.R. University of
Health Sciences and Ors., (2009) 1 SCC
599). It is settled law that if the irregularities
in evaluation could be noticed and corrected
specifically
and
undeserving
select
candidates be identified and in their place
deserving candidates be included in select
list, then no illegality would be said to have
crept in the process of re- evaluation. The
respondent-Board
thus
identified
the
irregularities which had crept in the
evaluation procedure and corrected the same
by employing the method of re-evaluation in
respect of the eight questions answers to
which were incorrect and by deletion of the
eight incorrect questions and allotment of
their marks on pro-rata basis. The said
1 All] Mohd. Akram Siddeeque & Ors. Vs. State of U.P. and Ors.
69
decision cannot be characterized as arbitrary.
Undue prejudice indeed would have been
caused had there been re- evaluation of
subjective answers, which is not the case
herein."

8. It has further been submitted that
in the case of Kanpur University and
others v.