# Ragini Dwivedi & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-21
- **Case number:** Writ A No. 2430 of 2021
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ragini-dwivedi-ors-v-state-of-u-p-ors-46621
- **Pages:** 10

## Headnote

A. Service Law - Education - Appointment -
Judges cannot take on the role of experts in
academic
matters.
Unless,
the
candidate
demonstrates
that
the
key
answers
are
patently wrong on the face of it, the courts
cannot enter into the academic field, weigh the
pros and cons of the arguments given by both
sides and then come to the conclusion as to
which of the answers is better or more correct.
(Para 21, 23)

This caution gets clearly attracted in the facts of the
present case inasmuch as opinion of experts is based
on credible material and cannot be said to be
absolutely without any basis. Which author is correct
on the subject is not for the Court to determine, at
the first instance. Unless the answers relied upon by
the Board are found to be patently erroneous or
without any basis the interference on part of the
Court would clearly not be warranted. (Para 29)

When there are conflicting views, then the
court must bow down to the opinion of the
experts. Judges are not and cannot be experts
in all fields and, therefore, they must exercise
great restraint and should not overstep their
jurisdiction to upset the opinion of the experts.
(Para 21, 23)

In such view of the matter this Court is not inclined to
arrogate to itself the role of expert in the subject so as
to judge whether the opinion expressed by team of
experts is correct or not. (Para 29)

B. Factual aspects raised at the time of hearing
need not be examined in the absence of any
specific pleading and opportunity to the Board to
submit its reply in the matter. Petitioners urge that
in different examinations the Board has given different
answers to the same questions. Attention of the Court
has not been invited to any factual plea in that regard in
the writ petitions and such arguments have been raised
only during the course of arguments. However, Court
observed that such aspects are required to be carefully
scrutinized by the Board while accepting correctness of
the answer to a particular question. The Board must
remain consistent and its answers cannot vary to
a question in different examinations. Greater care
ought to be taken for ensuring its credibility as a
recruitment body. Sanskrit is otherwise a scientific
language and does not admit of scope for confusion and
that the opinion of experts must be based on authentic
texts. (Para 28)

In the facts of the present case the recruitment has
concluded and selected candidates have apparently
joined against the advertised vacancies. The selected
candidates have otherwise not been noticed in
the instant writ proceedings nor are they
represented. Any interference in the matter, at this
stage, may otherwise adversely effect the cause of
dispensation of education in large number of institutions
where the selected candidates may have joined by now
and are working. (Para 29)

Writ petitions dismissed. (E-4)

Precedent followed:

## Text

11 All. Ragini Dwivedi & Ors. Vs. State of U.P. & Ors.
679
----------
(2021)11ILR A679
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 2430 of 2021
and other connected cases

Ragini Dwivedi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prabhakar Awasthi, Sri Brijesh Kumar, Sri
Brijesh Dubey, Sri Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri A.K.S., Sri A.K.S. Parihar, Sri Anil
Kumar Singh, Sri Akash Rai

A. Service Law - Education - Appointment -
Judges cannot take on the role of experts in
academic
matters.
Unless,
the
candidate
demonstrates
that
the
key
answers
are
patently wrong on the face of it, the courts
cannot enter into the academic field, weigh the
pros and cons of the arguments given by both
sides and then come to the conclusion as to
which of the answers is better or more correct.
(Para 21, 23)

This caution gets clearly attracted in the facts of the
present case inasmuch as opinion of experts is based
on credible material and cannot be said to be
absolutely without any basis. Which author is correct
on the subject is not for the Court to determine, at
the first instance. Unless the answers relied upon by
the Board are found to be patently erroneous or
without any basis the interference on part of the
Court would clearly not be warranted. (Para 29)

When there are conflicting views, then the
court must bow down to the opinion of the
experts. Judges are not and cannot be experts
in all fields and, therefore, they must exercise
great restraint and should not overstep their
jurisdiction to upset the opinion of the experts.
(Para 21, 23)

In such view of the matter this Court is not inclined to
arrogate to itself the role of expert in the subject so as
to judge whether the opinion expressed by team of
experts is correct or not. (Para 29)

B. Factual aspects raised at the time of hearing
need not be examined in the absence of any
specific pleading and opportunity to the Board to
submit its reply in the matter. Petitioners urge that
in different examinations the Board has given different
answers to the same questions. Attention of the Court
has not been invited to any factual plea in that regard in
the writ petitions and such arguments have been raised
only during the course of arguments. However, Court
observed that such aspects are required to be carefully
scrutinized by the Board while accepting correctness of
the answer to a particular question. The Board must
remain consistent and its answers cannot vary to
a question in different examinations. Greater care
ought to be taken for ensuring its credibility as a
recruitment body. Sanskrit is otherwise a scientific
language and does not admit of scope for confusion and
that the opinion of experts must be based on authentic
texts. (Para 28)

In the facts of the present case the recruitment has
concluded and selected candidates have apparently
joined against the advertised vacancies. The selected
candidates have otherwise not been noticed in
the instant writ proceedings nor are they
represented. Any interference in the matter, at this
stage, may otherwise adversely effect the cause of
dispensation of education in large number of institutions
where the selected candidates may have joined by now
and are working. (Para 29)

Writ petitions dismissed. (E-4)

Precedent followed:

1. Ran Vijay Singh & ors. Vs St.of U.P. & ors., (2018)
2 SCC 357 (Para 21)

2. Rishal & ors. Vs Rajasthan Public Service
Commission & ors., (2018) 8 SCC 81 (Para 22)

3. Uttar Pradesh Public Service Commission through
its Chairman & anr. Vs Rahul Singh & anr. (2018) 7
SCC 254 (Para 23)
680 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Kanpur University Vs Samir Gupta, (1983) 4 SCC
309 (Para 23)

Precedent cited:

1. Ranjeet Kumar Singh & ors.Vs St. of U.P. & ors.,
2012 (30) ADJ 242 (Para 24)

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. This bunch of writ petitions are at the
instance of unsuccessful candidates who had
applied for appointment to the post of Trained
Graduate Teacher (Male) in Sanskrit against
advertisement no.01/2016, issued by the U.P.
Secondary Education Service Selection Board,
Allahabad (hereinafter referred to as 'Board').
They assert that their merit has not been
correctly evaluated as answers relied upon by
Board to some of the questions are wrong and
consequentially the select list suffers from patent
illegality. A prayer is also made to direct the
Board to reassess or re-evaluate questions on the
basis of correct answers.

2. It is contended that most of the
petitioners have fallen short by one (1) or two
(2) marks and since large number of vacancies
are still available, therefore, the Board be
directed to award them correct marks for the
answers given by the petitioners in light of the
materials placed before the Board and also this
Court.

3. Respondent Board, on the other hand,
has filed an affidavit in the leading writ petition
annexing a chart as Annexure-1 to contend that
model answers have been worked out on the
basis of opinion of experts and, therefore, the
award of marks to candidates in the examination
suffers from no illegality.

4. Answers to fourteen (14) questions in
the examination are disputed by the petitioners
on the ground that they are wrong. To the extent
of seven (7) out of these fourteen questions the
Board has found substance in the challenge laid
and those questions are deleted on the basis of
expert opinion obtained and marks for these
seven questions have been equally distributed to
all candidates. Grievance, therefore, survives
only in respect of seven questions.

5. At the outset, it would be worth noticing
that written examination was conducted for the
recruitment on 09.03.2019 and the first answer
key was published on 26.03.2019. Objections
were invited from the candidates between
27.03.2019 and 03.04.2019. After considering
the objections raised a revised answer key was
published on 25.10.2019. It appears that the
corrected answer key published on 25.10.2019
was questioned in Writ Petition No.19059 of
2019, wherein a counter affidavit was invited
from the Board. The Board appears to have
called for a fresh opinion of experts in respect of
the disputed questions and final answer key has
been published on 12.02.2020, which is the basis
of award of marks to the candidates.

6. Out of the seven (7) disputed questions
it transpires that no objections were filed in
respect of three of them, namely question
nos.28, 73 and 80 of Booklet Series A despite
opportunity given in that regard by the Board.
Challenge to correctness of model answers in
these three questions need not be entertained,
directly in writ proceedings, when no such
challenge was laid before the Board. The first of
the remaining four disputed questions is
question no.46 of the Booklet Series A. Option
(D) was disclosed to be correct answer in the
first answer key but after the candidates objected
to it the Board declared the answer to be wrong
and proposed to delete the question. However,
without there being any fresh opportunity of
objection to the candidates or any order of the
Court the Board unilaterally proceeded to
change the answer to this question as option (A).
Question no.46 of the Booklet Series A
correspondes to question nos.16, 105 and 73 of
11 All. Ragini Dwivedi & Ors. Vs. State of U.P. & Ors.
681
the Booklet Series B, C and D respectively, and
is quoted below:

46& fuEufyf[kr esa ls 'kq) okD; gS

1⁄4,1⁄2"iq=% ekrja Lejfr

1⁄4ch1⁄2 iq=% ek=a Lejfr

1⁄4lh1⁄2 iq=% ekrkja Lejfr

1⁄4Mh1⁄2 iq=% ekrq Lejfr

7. The next disputed question is question
no.8 of Booklet Series A, corresponding to
question nos.103, 67 and 35 of the Booklet
Series B, C and D respectively. The Board
consistently held option (B) to be the correct
answer in all the model answers. Petitioners,
however, submit that correct answer is option
(C). Question no.8 of the Booklet Series A reads
as under:

8& ^*dksMU;ks gqrogkr~ ~ izHkokZrs nqX/ke~^* ;g
okD; vfHkKku 'kkdqUry esa dgk gS

1⁄4,1⁄2 vulw;k 1⁄4ch1⁄2 fiz;aonk

1⁄4lh1⁄2 d.of'k";% 1⁄4Mh1⁄2 nqokZlk"

8. Similarly, question no.68 of Booklet
Series A, corresponding to question nos.38, 2
and 95 of the Booklet Series B, C and D
respectively, reads as under:

68& dknEcjh ukf;dk gS

1⁄4,1⁄2 Lodh;k

1⁄4ch1⁄2 ijdh;k

1⁄4lh1⁄2 ekfuuh

1⁄4Mh1⁄2 buesa ls dksbZ ugha"

9. The last question objected to by the
petitioners is question no.101 of Booklet Series
A [question nos.71, 35 and 3 of the Booklet
Series B, C and D respectively] which reads as
under:

101& ^*fgrkUu ;% laJ`.krs l fda izHkq%^*
blesa ^* fgrkr~^* in esa fdl lw= ls iUpeh foHkfDr gS\

1⁄4,1⁄2 Hkh=kFkkZuka Hk;gsrq

1⁄4ch1⁄2 viknkus iUpeh

1⁄4lh1⁄2 vk[;krksi;ksxs

1⁄4Mh1⁄2 okj.kkFkkZukehfIlr%

10. In the affidavit filed by the Board the
opinion of experts has been annexed alongwith
materials, which have been placed before the
Court, for arriving at its conclusion. In respect of
question no.46 initially options (A) and (D) were
both found to be correct but as per the revised
expert opinion the correct answer is option (A).
The experts report is also annexed alongwith the
affidavit. With reference to question no.8 the
experts have referred to the commentary on
Kalidas Granthawali by Dr. Rewa Prasad
Dwivedi
published
by
Kashi
Hindu
Vishwavidyalaya,
and
Acharya
Sitaram
Chaturvedi
published
by
Chaukhamba
Granthmala to arrive at the conclusion that
Priyamvada is the author of the quoted sentence.
It is with reference to the above materials that
the Board contends that its answer (B)
Priyamvada as author of statement is correct. As
against it the petitioners rely upon Abhigyan
Shakuntlam written by Dr. Kapil Dev Dwivedi
in which this very statement is attributed to
Anusuiya. To similar effect are the commentary
on Abhigyan Shakuntalam by Dr. Shiv Balak
Dwivedi
as
also
Abhigyan
Shakuntalam
published by Bhartiya Vidya Santhan, Varanasi.
It is stated that in class 11th Sanskrit also the
statement is attributed to be of Anusuiya. The
petitioners, moreover, contend that the Board
itself in 2009 and 2021 examination has held
Anusuiya to be the author of statement and,
therefore, a different answer to the same
question by the same Board in a different exam
would be impermissible. It is alleged that this
creates confusion and also discourages sincere
students as despite having given correct answer
they are not awarded marks.

11. In respect of question no.68 the Board
has found option (B) to be the correct answer
whereas petitioners submit that option (A) and
682 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) both are the correct answers inasmuch as the
Kadambari's character is distinct before and after
marriage. It is urged that before marriage she is
Swakiya and after marriage she is Parkiya and
since marital status is not disclosed in the
question, therefore, options (A) and (B) both are
correct. In respect of such contention petitioners
rely upon Kadambari written by Shri Krishna
Mohan Thakkur; Kadambari Kathamukham
written
by
Dr.
Anurag
Shukla;
and
Shuknasopdesh published by Ram Narayan Lal
Vijay Kumar.

"

12. The correct answer to question no.101 as
per the Board is option (C), whereas according to
petitioners correct answer is option (B) as per the
book Sanskrit Vyakaran Praveshika written by Dr.
Babu Ram Saxena and Kiratararjunoyam written
by Dr. Ram Sewak Dubey.

13. Question nos.18, 32, 33, 58, 66, 70 &
118 of Booklet Series-A have already been
deleted.

14. Learned counsel for the respondent
Board points out that after declaration of result of
written examination the panel for interview has
prepared on 16.01.2021 and the final select list has
also been forwarded to the concerned District
Inspector of Schools for issuing appointment to the
selected candidates. It is also pointed out that
selected candidates are otherwise not represented
and, therefore, no interference in the matter is
called for.

15. On behalf of petitioners it is urged in
response to the above objection that more than 150
vacancies are still available and, therefore,
petitioners' claim can be considered against such
vacant posts even without disturbing the selected
candidates.

16. Hearing in this bunch of petitions was
concluded on 16.08.2021 and the matter was
posted for orders on 19.08.2021. Learned
counsel for the respondent Board on 17.08.2021
placed before the Court a communication as per
which recommendations for appointment had
been made against all advertised vacancies.
However, on behalf of the petitioners a letter of
State dated 13.08.2021 was produced to contend
that certain vacancies are still available with the
respondents. In order to ascertain the correctness
of
such
assertion
the
proceedings
were
adjourned with an intent to obtain specific
instructions from State as to whether any
vacancy still remains or not?

17. Written instructions have been
produced by Sri Sharad Chandra Upadhyaya,
learned State Counsel, dated 26.08.2021, as per
which 552 posts of Trained Graduate Teacher in
Sanskrit (Male Category) and 35 posts in Female
Category, totalling 587 posts were advertised
vide advertisement no.01/2016. After holding of
the written test and interview select list of 587
candidates was published on 06.01.2021. Panel
of selected candidates, institution-wise, was also
sent to District Inspector of Schools on
15.01.2021. It has been stated that as of now no
vacancy survives as selected candidates have
been adjusted against all vacancies. It has further
been stated that the select penal has been drawn
in excess of the advertised vacancy in
accordance with rules and in the event any
selected candidate does not join, the vacancy is
supposed to be filled from the list of surplus
candidates already provided by the Board. The
Special Secretary of the State, accordingly, has
informed that no vacancy is now available
against which petitioners' claim could be
considered.

18. It is in the context of above factual
scenario that the issue needs to be resolved by
this Court.

19. I have heard Sri Shivendu Ojha, Sri
Brijesh Dubey and other learned counsels for the
11 All. Ragini Dwivedi & Ors. Vs. State of U.P. & Ors.
683
petitioners, Sri Sharad Chandra Upadhaya,
learned State Counsel, Sri A. K. S. Parihar, Sri
Akash Rai and Sri Anil Kumar Singh for the
respondent Board and have perused the
materials brought on record.

20. Before proceeding to discuss the rival
submissions advanced it would be appropriate to
bear in mind the note of caution indicated by the
Supreme Court in various judgments restricting
the scope of enquiry by the Writ Court in a case
where correctness of experts' opinion is
questioned before it. This would help the Court
in appreciating the scope of arguments advanced
before the Court regarding correctness of the
answer key.

21. In Ran Vijay Singh and others vs. State
of Uttar Pradesh and others, (2018) 2 SCC 357,
the Supreme Court observed as under in
paragraph nos.30 to 32:

"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 reevaluation or scrutiny of an answer sheet (as
distinct from prohibiting it) then the court may
permit re-evaluation or scrutiny only if it is
demonstrated
very
clearly,
without
any
"inferential process of reasoning or by a process
of rationalisation" and only in rare or
exceptional cases that a material error has been
committed;

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.

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

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

 (Emphasis supplied)

22. In Rishal and others vs. Rajasthan
Public Service Commission and others, (2018) 8
SCC 81, the Supreme Court again observed as
under in paragraph nos.19, 24 and 26:

"19. The key answers prepared by the
paper-setter or the examining body is presumed
to have been prepared after due deliberations. To
err is human. There are various factors which
may lead to framing of the incorrect key
answers. The publication of key answers is a
step to achieve transparency and to give an
opportunity
to
candidates
to
assess
the
correctness of their answers. An opportunity to
file objections against the key answers uploaded
by examining body is a step to achieve fairness
and perfection in the process. The objections to
the key answers are to be examined by the
experts and thereafter corrective measures, if
any, should be taken by the examining body. In
the present case, we have noted that after
considering the objections final key answers
were published by the Commission thereafter
several writ petitions were filed challenging the
correctness of the key answers adopted by the
Commission. The High Court repelled the
challenge accepting the views of the experts.
The candidates still unsatisfied, have come up in
this Court by filing these appeals.

24. The learned counsel for the
appellants have also pointed out several other
questions in Paper 1 which according to the
learned counsel for the appellants have not been
correctly answered by the Expert Committee.
We have considered few more questions as
pointed out and perused the answers given by
the Expert Committee and we are of the view
that no error can be found with the answers of
the Expert Committee with regard to three more
questions which have been pointed out before
us. The Expert Committee, constituted to
validation of answer key, has gone through
every objection raised by the appellants and has
satisfactorily
answered
the
same.
The
Commission has also accepted the report of the
Expert Committee and has proceeded to revise
the result of 311 appellants before us. We, thus,
are of the view that report of the Expert
Committee which has been accepted by the
Commission need to be implemented.

26. The questions having been deleted
from the answers, the question paper has to be
treated as containing the question less the
deleted questions. Redistribution of marks with
regard to deleted questions cannot be said to be
arbitrary or irrational. The Commission has
adopted a uniform method to deal with all the
candidates looking to the number of the
candidates. We are of the view that all the
candidates
have
been
benefited
by
the
redistribution of marks in accordance with the
number of correct answers which have been
given by them. We, thus, do not find any fault
with redistribution of marks of the deleted marks
(sic questions). The High Court has rightly
approved the said methodology."

23. Yet, again in Uttar Pradesh Public
Service Commission through its Chairman and
another vs. Rahul Singh and another, (2018) 7
SCC 254, the Apex Court reiterated the
principles laid down in Kanpur University vs.
11 All. Ragini Dwivedi & Ors. Vs. State of U.P. & Ors.
685
Samir Gupta, (1983) 4 SCC 309 to observe as
under in paragraph nos.12 to 14:

"12. The law is well settled that the
onus is on the candidate to not only demonstrate
that the key answer is incorrect but also 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 restraint
in such matters and should be reluctant to
entertain a plea challenging the correctness of
the key answers. In Kanpur University case
[Kanpur University v. Samir Gupta, (1983) 4
SCC 309] , the Court recommended a system of:

(1) moderation;

(2)
avoiding
ambiguity
in
the
questions;

(3) prompt decisions be taken to
exclude suspected questions and no marks be
assigned to such questions.

13. As far as the present case is
concerned, even before publishing the first list
of key answers the Commission had got the key
answers moderated by two Expert Committees.
Thereafter, objections were invited and a 26member Committee was constituted to verify the
objections and after this exercise the Committee
recommended that 5 questions be deleted and in
2 questions, key answers be changed. It can be
presumed that these Committees consisted of
experts in various subjects for which the
examinees were tested. Judges cannot take on
the role of experts in academic matters. Unless,
the candidate demonstrates that the key answers
are patently wrong on the face of it, the courts
cannot enter into the academic field, weigh the
pros and cons of the arguments given by both
sides and then come to the conclusion as to
which of the answers is better or more correct.

14. In the present case, we find that all
the three questions needed a long process of
reasoning and the High Court itself has noticed
that the stand of the Commission is also
supported by certain textbooks. When there are
conflicting views, then the court must bow down
to the opinion of the experts. Judges are not and
cannot be experts in all fields and, therefore,
they must exercise great restraint and should not
overstep their jurisdiction to upset the opinion of
the experts."

 (Emphasis supplied)

24. On behalf of the petitioners reliance is
placed upon judgment of this Court in Ranjeet
Kumar Singh and others vs. State of U.P. and
others, 2012 (30 ADJ 242, wherein following
observations have been made in paragraph
nos.55, 56 and 59:

"55. The aforesaid observations apply
with full force to the cases in hand also. For the
fault of Selection Board in selecting Papers
Setters, who have not discharged their duties
efficiently, honestly and by meticulous care and
caution by framing paper sets of questions and
answers, the studious and meticulous intelligent
students cannot be made to suffer sheer on
account of their capacity and intelligence of
having correct information and knowledge. Can
it be said that an examining body even if ask a
question and treat a patently perverse answer to
be correct as a model answer, yet the Court
would not interfere on the sheer pretext that it
would amount to crossing the border line of
Experts' opinion in academic matters. For
example, if a question is asked as to when the
Constitution of India was adopted and enforced
by the people of India and instead of 26.1.1950,
the correct answer is taken as 15.8.1947, shall
Court refuse to interfere only for the objection
raised by Examining body that it is the opinion
of Subject Experts in the matter and in such
academic matter, the Court should not interfere.
The answer would be obviously "No". Such a
preliminary objection is bound to be rejected. If
this kind of fault committed by Selection Board
is allowed to remain untouched, this Court
would be failing in its Constitutional obligation
to prevent arbitrariness, illegality in the matter
686 INDIAN LAW REPORTS ALLAHABAD SERIES
of right of consideration for employment as it
would amount to an arbitrary kind of selection
denying equal opportunity of employment to all
concerned and would be infringing Article 14
and 16 read with Article 21 of Constitution.

56. Now remains the question as to how
and in what manner, relief is to be granted. It is
true that while entertaining this writ petition, this
Court directed that any further action by the
respondents would be subject to result of this writ
petition. (See order dated 7.10.2010 passed by this
Court in Writ Petition No. no 61659 of 2010), the
fact remains that these writ petitions were filed
after declaration of final result when petitioners
were declared unsuccessful. The appointment of
all selected candidates have already been made as
told in para 16 of counter affidavit. The
appointment and selection, though already made,
have not been questioned. The persons already
appointed are not before this Court. Petitioners,
after appearing in written test, were well aware
about the alleged mistakes and inaccuracies in
multiple choices given in respect to above
questions. It cannot be assumed that they could not
have visualised that on account of wrong choice or
wrong answers or wrong questions, they may
suffer in preparation of ultimate merit list. They
chose to wait not only till interview is held but
even till final result is declared. It is true that
normally a candidate does not come to file an
academic litigation or a futile litigation and it is
only when a cause of action arises, he comes to the
Court to challenge an illegality which has already
been committed but then all other attending
circumstances have to be seen.

59. Looking to over all factors and
circumstances and discussion as above, in my
view, the ends of justice would meet by disposing
of all these writ petitions with the following
directions:

(i) Petitioners' answer-sheets in respect
to above seven questions shall be examined in the
manner as adjudicated above (summarised in para
41) and their marks in written test would be
determined accordingly.

(ii) In case, it is found that petitioners
or any one or more of them have secured total
marks more than last selected and appointed
person, they shall be given appointment.

(iii) The above appointments will be
made against the advertised vacancies on the
post of Trained Graduate Teachers. The persons
already appointed in service shall not be made to
suffer in any manner, except to the extent one or
more of the petitioners on account of increase in
his total marks is required to be appointed and in
that case, persons last in merit would have to
suffer and their appointments, if already made,
shall be terminated. I am constrained to give this
direction for the reason that vacancies of
Teachers advertised for selection are pursuant to
requisitions
received
from
the
individual
secondary institutions and, therefore, only those
vacancies
which
were
requisitioned
and
advertised in the above selection can be made to
be governed by this judgment and the
subsequent and other vacancies not included in
the above selection cannot be taken into
consideration to give benefit to any of
petitioners by protecting the appointments
already made.

(iv) The appointment, if any, made
pursuant to this order of petitioners, for the
purpose of actual payment of salary shall take
effect from the date of appointment but for the
purpose of pay fixation, seniority etc. it shall
relate back from the date the person lower in
merit to the respective petitioner was appointed.
If there is no person lower in merit to
petitioner(s) and he/they are last in merit, then
this date would the same as the person next
above these petitioner(s).

(v) Petitioners shall be entitled to cost
which I quantify to Rs. 10,000/- for each set of
writ petition against U.P. Secondary Education
Service Selection Board.

(vi) Selection Board, respondent no. 2,
is directed to find out the person(s) responsible
for committing the aforesaid errors/ mistakes/
blunders in setting of question papers with
11 All. Ragini Dwivedi & Ors. Vs. State of U.P. & Ors.
687
multiple choice answers and to take appropriate
action against them in accordance with law. It
shall be at liberty to recover the amount of cost
it has to pay under this judgement from such
persons found responsible as above. "

25. In the facts of the present case the
records reveal that the Board had initially
published its answer key on 26.03.2019 against
which objections were invited from the
candidates. These objections were considered
and revised answer key was published on
25.10.2019. It appears that after the Writ
Petition No.19059 of 2019 was filed before this
Court, in which reply was called for, the Board
undertook a fresh exercise to get its answers
verified by a team of specialists on the subject.
Vide affidavit filed before this Court on
15.08.2021 the Board has placed on record the
opinion of experts in respect of each disputed
question.
Elaborate
arguments have been
advanced and various materials have been
placed on behalf of the petitioners to contend
that opinion expressed by experts is at variance
with the authentic text/materials available on the
subject.

26. On behalf of the petitioners it was
extraneously urged by the petitioners that correct
answer to question no.8 of Booklet Series A is
option (A) whereas according to experts' opinion
the correct answer is option (B). Materials have
been placed in the form of various texts to show
that conclusion drawn by the experts on the
subject is incorrect. The Board alongwith its
affidavit has relied upon ''Kalidas Granthawali
published by Kashi Hindu Vishwavidyalaya' as
also
the
publication
namely
''Kalidas
Granthawali
written
by
Acharya
Sitaram
Chaturvedi'. On behalf of petitioners also
various texts have been produced.

27. Similarly, in respect of question
nos.46, 68 and 101 of Booklet Series A also the
experts have taken a particular view for which
various materials have been placed before the
Court by the petitioners.

28. It has also been urged on behalf of the
petitioners that in different examinations the
Board has given different answers to the same
questions. Attention of the Court has not been
invited to any factual plea in that regard in the
writ petitions and such arguments have been
raised only during the course of arguments.
Factual aspects raised at the time of hearing
need not be examined in the absence of any
specific pleading and opportunity to the Board to
submit its reply in the matter. However, it would
be appropriate to observe that such aspects are
required to be carefully scrutinized by the Board
while accepting correctness of the answer to a
particular question. The Board must remain
consistent and its answers cannot vary to a
question in different examinations. Greater care
ought to be taken for ensuring its credibility as a
recruitment body. Sanskrit is otherwise a
scientific language and does not admit of scope
for confusion and that the opinion of experts
must be based on authentic texts.

29. In the facts of the present case the
recruitment
has
concluded
and
selected
candidates have apparently joined against the
advertised vacancies. The selected candidates
have otherwise not been noticed in the instant
writ proceedings nor are they represented. Any
interference in the matter, at this stage, may
otherwise
adversely
effect
the
cause
of
dispensation of education in large number of
institutions where the selected candidates may
have joined by now and are working. In such
view of the matter this Court is not inclined to
arrogate to itself the role of expert in the subject
so as to judge whether the opinion expressed by
team of experts is correct or not. While taking
such view, this Court is conscious of the caution
sounded by the Supreme Court in such matters
according to which judges cannot take on the
role of experts in academic matters. It is
688 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise
settled
that
unless
candidate
demonstrates that the key answers are patently
wrong, on the face of it, the Court ought not to
enter into academic field by weighing the pros
and cons of the arguments advanced by both
sides and then come to the conclusion as to
which of the answers is better or more correct.
This caution gets clearly attracted in the facts of
the present case inasmuch as opinion of experts
is based on credible material and cannot be said
to be absolutely without any basis. Which author
is correct on the subject is not for the Court to
determine, at the first instance. Unless the
answers relied upon by the Board are found to
be patently erroneous or without any basis the
interference on part of the Court would clearly
not be warranted.

30. In such circumstances, this Court is not
inclined to evaluate merits of the respective
arguments advanced by counsels for the parties,
with reference to the literature placed on the
subject so as to determine whether or not the
model answer key contains correct answers.

31. In view of the deliberations and
discussions made above, all the writ petitions
fail and are dismissed. No order is passed as to
costs.
----------
(2021)11ILR A688
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5235 of 2021

C/M S.M. National Inter College, Machhati
Ghazipur & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Hritudhwaj Pratap Sahi, Sri Samarath Singh,
Sri Sankalp Narayan, Sri Awanish Kumar Rai, Sri
B.K. Singh

Counsel for the Respondents:
C.S.C., Sri Kushmondeya Shahi

A. Service Law - Suspension - Payment of
Salary - Intermediate Education Act, 1921 -
Section 16G - It is apparent that power to
place a Head of institution or teacher under
suspension is with the Management and not
the Manager. Unless a resolution is passed by
the
Managing
Committee
an
order
of
suspension cannot be passed. In the present
case, Inspector has admitted that at the time when
he considered the question of approval to the order of
suspension a resolution dated 03.01.2021 of the
Managing Committee had been placed before him.
This resolution will have the effect of ratifying the
decision of Manager to place the private respondent
under suspension. Since the Inspector has failed
to take into consideration the subsequent
ratification of Manager's decision by the
Management of the Institution, nor the law
relating ratification has been examined as such
the finding in the order of Inspector that
suspension order is without jurisdiction cannot
be sustained. (Para 8)

Intermediate Education Act, 1921 - Regulation
39 in Chapter 3 - This provision does not interfere
with the right of minority institution to place a teacher
under suspension but merely regulates the exercise of
such power in such a manner so as to protect the
right of teacher from arbitrary exercise of power by
the management. (Para 10)

Minority Institution in the name of discipline
and fundamental right of administration and
management cannot be given right to hire and
fire of its teachers and that conferring of
regulatory
power
with
the
educational
authorities for ensuring guarantee of freedom
from arbitrariness to teachers would not
amount to violating the right of minority
institution to manage its institution. (Para 13)

Impugned order quashed. Matter remitted.
Private respondent was allowed to continue at
work as well as held entitled to payment of
salary. (E-4)