# State of U.P. & Ors v. Mohd. Rizwan & Ors

- **Citation:** (2019) 3 ILRA 150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-20
- **Case number:** Special Appeal No. 93 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-mohd-rizwan-ors-44788
- **Pages:** 18

## Headnote

A. Service Law - Education Service -
Appointment/Recruitment - Re-evaluation
- The qualifying examination is being
conducted for the TET i.e. for seeing
whether the person is qualified to become a
teacher and thereafter to face examination
for recruitment as Teacher. The instant
examination pertains to the syllabus of
Class 1st to 5th and children have an active
and inquisitive mind and, thus, the NCTE as
well as the Examination Authority have
correctly
framed the
question having
difficulty standard and linkages up to the
secondary stage in as much as a child
cannot be restricted from asking questions,
which
may
be
beyond
the
syllabus
prescribed. (Paras 30, 37)

The questions were asked as per the
guidelines issued for conducting the TET
examination,
therefore,
Single
Judge
committed error of law in holding the
questions to be out of syllabus. (Para 32)
Single Judge issued mandamus commanding
the
Secretary,
Examination
Regulatory
Authority to make fresh evaluation of all the
answer sheets of the candidates by deleting
14 questions from total questions of the
question papers of UPTET Examination 2017.
It was pleased that the questions were outside
the syllabus, ambiguous, were not clear, were
capable of having two or more answers or for
that matter, the question was incapable of
being answered. It was also pleaded that
regulatory authority while setting the question
paper was not empowered to reassign the
marks when NCTE guidelines had indicated
marks to be assigned to respective segments
of the question paper. (Paras 11, 22).

C. Service Law - Education Service -
Appointment/Recruitment - The Court
should not at all re-evaluate or scrutinize
the answer sheets of the candidates. It
has no exercise in the matter and
academic matter are best left open to
academics. The Court should presume
the correctness of the key answers and
proceed on that assumption. In the
event of a doubt, the benefit should go
to the examination authority rather than
to the candidate. (Paras 33 to 35)

It is clear that the authority conducting the
examination may permit re-evaluation of an
answer sheet or scrutiny of answer sheet as a
matter of right only if a statute, rule or
regulation governing the examination permits
it. The Court may permit re-evaluation or
scrutiny only in rare and exceptional cases

D. Service Law - Education S

## Text

_Characters 0–39,940 of 50,971. This is a partial read: ask again with offset=39940 for what follows._

150 INDIAN LAW REPORTS ALLAHABAD SERIES
(2008) 1 SCC 474, hon'ble Apex Court
propounded that "Ends of justice would
be better served if valuable time of the
Court is spent in hearing those appeals
rather than entertaining petitions under
Section 482 at an interlocutory stage
which after filed with some oblique
motive in order to circumvent the
prescribed procedure, or to delay the trial
which enable to win over the witness or
may disinterested in giving evidence,
ultimately resulting in miscarriage of
Justice". In again another subsequent
Monica Kumar v. State of Uttar
Pradesh, (2008) 8 SCC 781, the Apex
Court
has
propounded
"Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in the section itself." While
interpreting this jurisdiction of High
Court Apex Court in Popular Muthiah v.
State, Represented by Inspector of
Police,
(2006)
7
SCC
296
has
propounded "High Court can exercise
jurisdiction suo motu in the interest of
justice. It can do so while exercising other
jurisdictions
such
as
appellate
or
revisional
jurisdiction.
No
formal
application
for
invoking
inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters.
It can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".

7. Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
Dhanlakshmi v. R.Prasana Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC
494 has propounded "To prevent abuse of
the process of the Court, High Court in
exercise of its inherent powers under
section 482 could quash the proceedings but
there would be justification for interference
only when the complaint did not disclose any
offence or was frivolous vexatious or
oppressive" as well as in State of Bihar v.
Murad Ali Khan, (1989) Cr LJ 1005: AIR
1989 SC 1, Apex Court propounded "In
exercising jurisdiction under Section 482
High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not".

8. Meaning thereby, exercise of inherent
jurisdiction under Section 482 Cr.P.C. is within
the limits, propounded as above.

9. Hence, under above facts and
circumstances, there is no ground for this
application.

10. Accordingly, the application is
rejected.

11. However, in case the applicant
surrenders
before
before
the
court
concerned within 30 days from today and
applies for bail, it will decide his bail
application in wake of the law laid down
by this Court in the Full Bench decision
of Amrawati and another Vs. State of
U.P., 2005 Cri.L.J 755 affirmed by
Hon'ble Supreme Court in the case of
Lal Kamlendra Pratap Singh Vs. State of
U.P. (2009) 4 SCC 437.

12. For a period of 30 days from
today, which shall not be extended further
in any case, no coercive action shall be
taken against the applicant, in the above
mentioned case.
----------
(2019)11ILR A150
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.11.2019
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
151
BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE IRSHAD ALI, J.

Special Appeal No. 93 of 2018

State of U.P. & Ors. ...Appellants
Versus
Mohd. Rizwan & Ors. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Sri Amit Kr. Singh Bhadauriya, Sri Anuj
Dayal, sri Onkar Singh Kushwaha, Pt. S.
Chandra, Sri Raj Kumar Mishra,Sri Rajeiu
Kumar Tripathi, Upendra Nath Mishra

A. Service Law - Education Service -
Appointment/Recruitment - Re-evaluation
- The qualifying examination is being
conducted for the TET i.e. for seeing
whether the person is qualified to become a
teacher and thereafter to face examination
for recruitment as Teacher. The instant
examination pertains to the syllabus of
Class 1st to 5th and children have an active
and inquisitive mind and, thus, the NCTE as
well as the Examination Authority have
correctly
framed the
question having
difficulty standard and linkages up to the
secondary stage in as much as a child
cannot be restricted from asking questions,
which
may
be
beyond
the
syllabus
prescribed. (Paras 30, 37)

The questions were asked as per the
guidelines issued for conducting the TET
examination,
therefore,
Single
Judge
committed error of law in holding the
questions to be out of syllabus. (Para 32)
Single Judge issued mandamus commanding
the
Secretary,
Examination
Regulatory
Authority to make fresh evaluation of all the
answer sheets of the candidates by deleting
14 questions from total questions of the
question papers of UPTET Examination 2017.
It was pleased that the questions were outside
the syllabus, ambiguous, were not clear, were
capable of having two or more answers or for
that matter, the question was incapable of
being answered. It was also pleaded that
regulatory authority while setting the question
paper was not empowered to reassign the
marks when NCTE guidelines had indicated
marks to be assigned to respective segments
of the question paper. (Paras 11, 22).

C. Service Law - Education Service -
Appointment/Recruitment - The Court
should not at all re-evaluate or scrutinize
the answer sheets of the candidates. It
has no exercise in the matter and
academic matter are best left open to
academics. The Court should presume
the correctness of the key answers and
proceed on that assumption. In the
event of a doubt, the benefit should go
to the examination authority rather than
to the candidate. (Paras 33 to 35)

It is clear that the authority conducting the
examination may permit re-evaluation of an
answer sheet or scrutiny of answer sheet as a
matter of right only if a statute, rule or
regulation governing the examination permits
it. The Court may permit re-evaluation or
scrutiny only in rare and exceptional cases

D. Service Law - Education Service -
Appointment/Recruitment - Challenge
to entire examination - Only because
some candidates are disappointed the
entire examination process does not
deserve to be derailed.

Only 3 questions out 150 questions were
found doubtful. The method adopted by the
examination regulatory authority by granting 3
marks to all the candidates would be fair and
should not cause prejudice to any candidate,
as the framing of doubtful questions cannot be
attributed to the candidates. (Para 36, 41)

Special Appeal allowed. (E-4)

Precedent followed: -

1. Ran Vijay Singh & ors. Vs St. of U.P. and
ors., (2018) 2 SCC 357 (Para 20, 33)

Precedent cited: -
152 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Bhanu Pratap Singh Vs St. of Uttarakhand
& ors.: Special Appeal No. 886 of (2019)
decided on 27.09.2019 (Para 23, 38)

2. Richal & ors. Vs Rajasthan Service
Commission & ors., (2018) 8 SCC 81 (Para 23,
38)

Present appeal challenges the judgment
and order dated 06.03.2018, passed by
Single Judge in WP No. 28222 (S/S) of
2017.

(Delivered by Hon'ble Irshad Ali, J.)

1) Heard Sri Raghvendra Singh,
learned Advocate General assisted by Sri
Abhinav
Narayan
Trivedi,
learned
counsel for the appellants-State and Sri
Sandeep Dixit, learned Senior Advocate
assisted by Sri Amit Kumar Singh
Bhadauriya, learned counsel for the
respondents.

2) This intra-Court appeal has been
filed challenging the judgment and order
dated 06.03.2018 passed by learned
Single Judge in Writ Petition No.28222
(S/S) of 2017; Mohd. Rizwan and 103
others Vs. State of U.P. and others,
whereby the learned Single Judge issued
mandamus commanding the Secretary,
Examination Regulatory Authority to
make fresh evaluation of all the answer
sheets of the candidates by deleting 14
questions as stated in paragraph Nos.85
and 86 of the order from total questions of
the question papers and the Secretary,
Examination Regulatory Authority was
directed to declare the result on the basis
of above direction, as expeditiously as
possible, preferably, within a period of
one month and thereafter, the examination
of
the
post
of Assistant Teachers
Recruitment Examination, 2018 shall be
conducted and it was observed that it is
needless to direct that till the completion
of aforesaid exercise, the examination of
the
Assistant
Teacher
Recruitment
Examination, 2018 be postponed for
further date.

3) Factual matrix of the case is that
a writ petition was filed before the
learned
Single
Judge
by
the
Shikshamitras, who were reverted as
Assistant Teachers of primary schools run
and managed by the Board of Basic
Education,
U.P.
during
the
period
19.02.2006. The Shikshamitras were
appointed and were imparting education
to the children of the State in the primary
schools run and managed by the Board of
Basic Education.

4) After enforcement of Right of
Children
to
Free
and
Compulsory
Education Act, 2009 the National Council
for Teacher's Education (NCTE) was
declared the academic authority by the
Central Government. The NCTE laid
down the minimum qualification for a
candidate to be appointed as Teacher in
Class 1st to Class 8th vide notification
issued on 23.08.2010, wherein passing of
Teachers Eligibility Test (herein after
referred as "TET") to be conducted by the
appropriate Government in accordance
with the guidelines framed by NCTE was
made one of the minimum qualification.

5) Thereafter, NCTE issued detailed
guidelines on 11.02.2011 for conducting
the TET and structure and contents of
examination papers and nature and
standard of questions etc. were also
provided in the said guideline.

6) The State Government issued a
Government
Order
on
24.12.2014,
wherein the detailed guidelines relating to
syllabus,
structure
and
contents
of
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
153
examination papers and standard of
question etc. were issued.

7) The petitioners, who were
Shikshamitras
had
been
given
appointment on the post of Assistant
Teacher in the primary schools run by
Board of Basic Education, therefore, the
absorption was nullified by the Full
Bench of this Court vide order dated
12.09.2015 in Writ-A No.34833 of 2014;
Anand Kumar Yadav and others Vs.
Union of India and others. The judgment
passed by the Full Bench of this Court
was upheld by Hon'ble Supreme Court
vide order dated 25.08.2017, however, the
Supreme Court directed to the State
Government to provide opportunity of
participation
of
two
consecutive
recruitments in case the Shikshamitras
acquire the requisite qualification of TET.

8) In compliance of the judgment and
order passed by the Full Bench of this Court
as well as affirmed by Hon'ble Supreme
Court,
the
State
Government
issued
direction to the Examination Regulatory
Authority to conduct the U.P. TET, 2017
providing certain conditions of relaxation in
age and weightage of experience of the post
of Shikshamitras upto 25 marks in the
recruitment process. In pursuance thereof,
the U.P. TET Examination, was held on
15.10.2017, wherein the respondents-writ
petitioners appeared.

9) The answer key was issued, to
which objections were invited and a final
answer key was, thereafter, issued. The
candidates
appearing
in
the
said
examination raised plea of there being
incorrect or confusing questions with
incorrect or multiple answers by filing
Writ Petition No.28222 (S/S) of 2017 on
the following relief:

"Issue a writ, order or direction
in the nature of certiorari quashing the
answer key of UP-TET Examination 2017
(Paper-1) dated 06.11.2017 issued by
Examination Controlling Authority, Uttar
Pradesh, Allahabad for the appointment
of teachers for Class I to V.

Issue a wri, order or direction
in the nature of mandamus to revise the
result and to grant grace marks to the
petitioners for the questions which were
wrong and which were out of syllabus in
the Uttar Pradesh Teacher Eligibility Test
2017 conducted by the respondent no. 3

Issue a writ, order or direction
in the nature of mandamus to direct the
respondent authorities for redressing the
grievance of the petitioners by appointing
the High Level Expert Committee and
giving the opportunity of hearing to the
petitioners by fixing date and time before
declaration of the examination result i.e
30.11.2017.

Issue a writ, order or direction in the
nature of mandamus thereby directing the
respondent authorities to delete the questions
from the question paper, the questions which were
wrong and which were out of syllabus and
thereafter declare the result of UP-TET 2017.

Issue a writ, order or direction
in the nature of mandamus to stay the
declaration of the examination result UPTET 2017 which shall be declared on
30.11.2017 by the respondent no. 3 till the
redressal
of
the
grievance
of
the
petitioners

Issue a writ , order or direction
that this Hon'ble Court may deem fit and
proper in the facts and circumstances of
the case.

And allow this writ petition with
cost."

10) The learned Single Judge
decided the issue involved in the writ
154 INDIAN LAW REPORTS ALLAHABAD SERIES
petition vide impugned judgment and
order dated 06.03.2018, against which,
Special Appeal No.93 of 2018 was
preferred by the respondent-appellants.

11) Before the learned Single Judge,
various grounds were taken by the
respondent-appellants contending that the
questions were ambiguous in as much as
the questions were not clear or the
questions were capable of having two or
more answers or for that matter, the
question
was
incapable
of
being
answered. A plea was also taken that the
questions were out side the syllabus and
that once the NCTE guidelines had
indicated marks to be assigned to
respective segments of the question paper,
then the regulatory authority while setting
the question paper was not empowered to
reassign the said marks to other segments
of the question paper.

12) Several other special appeal
Nos.86 of 2018, 101 of 2018, 107 of 2018
and 119 of 2018 were filed before this
Court, wherein, the Division Bench of
this Court vide judgment and order dated
17.04.2018
passed
the
following
judgment and order :

"36.
Keeping
in
view
the
aforesaid discussion and the report
received from the subject experts dated
11.04.2018, Special Appeal No. 93 of
2018 is partly allowed to the following
extent:

(i) The 10 questions found by
the learned Single Judge to be incorrect
and were directed to be deleted, will stand
modified to the extent that out of those 10
questions only three questions are found
to be incorrect based upon the report of
the panel of experts and we direct that the
Examination Regulatory Authority shall
award grace marks for those three
questions containing incorrect answer in
the answer key.

(ii) The 4 questions which were
found out of syllabus by the learned
Single Judge are held to be within
syllabus and to that extent the direction
issued for deleting those 4 questions will
stand modified.

37. In Special Appeal No.101 of
2018, 6 questions which were alleged to
be containing wrong answers or wrongly
framed, were sent to the experts and their
answers have been found to be matching
with the answers contained in the final
answer
key
of
the
Examination
Regulatory Authority, as such the said
appeal is dismissed.

38. In Special Appeal No.86 of
2018, the relief relating to 4 additional
questions being wrongly framed or
containing
incorrect
answers
stands
rejected in view of the fact that no
objections were taken with regard to those
4 questions before the Examination
Regulatory Authority at the time when
opportunity
was
given
after
the
declaration of first answer key and
further the 5 questions being alleged to be
out of syllabus also does not find merit
and as such the said appeal is dismissed.
Further relief in the said appeal claimed
with regard to improper layout of the
question paper being not in conformity to
the Government Order dated 24.12.2014
and with regard to comprehension also
does not find any merit and is rejected.

39. Special Appeal No.107 of
2018 stands disposed of in view of the fact
that we have awarded grace marks
instead of deleting the questions in view
of the relief claimed in the said special
appeal.

40. No one has pressed Special
Appeal No.119 of 2018 although hearing
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
155
continued for a good number of days, as such
we dismiss this appeal for want of
prosecution. However, we have dealt with all
the objections raised regarding questions
containing
wrong
answers,
questions
themselves are wrong, question being out of
syllabus and awarding of grace mark. As such
said appeal does not require any further
consideration and the same is dismissed. "

13) The judgment and order passed
by the Division Bench in the aforesaid
special appeals was subject matter of
challenge before the Hon'ble Supreme
Court by the petitioners of Writ Petition
No.28222 (S/S) of 2017 in Civil Appeal
No.10876 of 2018, wherein a judgment
and order was passed by Hon'ble Supreme
Court on 26.10.2018, which is being
quoted below:

"Leave granted.

We have heard learned counsel
for the parties.

The appellants before us filed a
writ petition which was allowed bythe
learend Single Judge vide judgment and
order dated 06.03.2018.

Feeling
aggrieved
by
the
judgment and order passed by the learned
Single Judge, the State of U.P. preferred
an appeal only in one of the writ
petitioners out of a batch of writ petitions.

In the appeal, the State of U.P.
did not make the present appellants as
respondents although they were vitally
affected having succeeded before the
learned Single Judge. Despite this, the
matter was heard by the Division Bench
of the High Court in the absence of the
appellants. Vide judgment and order
dated 17.04.2018, the order passed by the
learned Single Judge was partly set aside.

Since the appellants were vitally
affected in the matter, they should have
been made parties in the appeal before
the Division Bench. In any event, the
appellants were entitled to be heard by
the Division Bench having succeeded
before the learned Single Judge.

Under these circumstances, we
set aside the impugned judgment and
order passed by the High Court and
remand the matter to the Division Bench
of the High Court for reconsideration on
merits. The appellants will be made party
- respondents in the High Court.

Any appointment (s) made will
be subject to the outcome of the decision
rendered by the Division Bench of the
High Court.

The civil appeal stand disposed
of."

14) It is, however, made clear that
the civil appeal was filed before the
Hon'ble Supreme Court in one of the writ
petition out of batch of writ petitions.

15) Hon'ble Supreme Court set aside
the judgment and order passed by the
Division Bench of this Court in Civil Appeal
No.10876 of 2018 and remanded the matter
to the Division Bench of the High Court for
reconsideration on merits by impleading the
respondents-appellants before the Hon'ble
Supreme Court as respondents with the
further rider that any appointment shall be
subject to outcome of the decision rendered
by the Division Bench of the High Court and
disposed of the appeal.

16) In compliance of the order
passed by the Hon'ble Supreme Court, the
respondents-appellants were impleaded as
respondent Nos.106 to 132 in the appeal
and the appeal was heard on merits.

17) Learned Advocate General
placed before this Court certain material
156 INDIAN LAW REPORTS ALLAHABAD SERIES
in the shape of guidelines for conducting
TET, 2017 and invited attention of this
Court on the relevant portion of the
guidelines, which is being quoted below:

Paper I (for classes I to V); No.
of MCQs - 150;

Duration of examination: oneand-a-half hours

Structure and Content (All
Compulsory)

(i) Child Development and
Pedagogy

30 MCQs 30 Marks

(ii) Language I

30 " 30 "

(iii) Language II

30 " 30 "

(iv) Mathematics

30 " 30 "

(v) Environmental Studies

30 " 30 "

 Nature and standard
of questions

While designing and preparing
the questions for Paper I, the examining
body shall take the following factors into
consideration:

- The test items on Child
Development and Pedagogy will focus on
educational psychology of teaching and
learning relevant to the age group of 6-11
years. They will focus on understanding
the characteristics and needs of diverse
learners, interaction with learners and
the attributes and qualities of a good
facilitator of learning.

- The Test items for Language I
will focus on the proficiencies related to
the medium of instruction, (as chosen
from list of prescribed language options
in the application form).

- The Language II will be from
among the prescribed options other than
Language I. A candidate may choose any
one language from the available language
options and will be required to specify the
same in the application form. The test
items in Language II will also focus on
the elements of language, communication
and comprehension abilities.

- The test items in Mathematics
and Environmental Studies will focus on
the concepts, problem solving abilities
and pedagogical understanding of the
subjects. In all these subject areas, the
test items shall be evenly distributed over
different divisions of the syllabus of that
subject prescribed for classes I-V by the
appropriate Government.

- The questions in the tests for
Paper I will be based on the topics of the
prescribed syllabus of the State for
classes I-V, but their difficulty standard,
as well as linkages, could be upto the
secondary stage.

Paper II (for classes VI to VIII);
No. of MCQs - 150;

 Duration of examination :
one-and-a-half hours

 Structure
and
Content

(i)Child
Development
&
Padagogy (compulsory) 30 MCQs 30
Marks

(ii) Language I (compulsory)

 30 " 30 "

(iii) Language II (compulsory)

 30 " 30 "

(iv) (a) For Mathematics and
Science teacher : Mathematics and
Science - 60 MCQs of 1 mark each

(b) For Social studies teacher :
Social Studies - 60 MCQs of 1 mark each

(c) for any other teacher - either
4(a) or 4(b)

While designing and preparing
the questions for Paper II, the examining
body shall take the following factors into
consideration:
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
157

- The test items on Child
Development and Pedagogy will focus on
educational psychology of teaching and
learning, relevant to the age group 11-14
years. They will focus on understanding
the characteristics, needs and psychology
of diverse learners, interaction with
learners and the attributes and qualities
of a good facilitator of learning.

- The test items for Language I
will focus on the proficiency related to the
medium of instruction, as chosen from list
of prescribed options in the application
form.

- The Language II will be a
language other than Language I. The
person may choose any one language
from among the available options and as
in the specified list in the application from
and attempt questions in the one indicated
by the candidate in the application form
by him. The Test items in Language II will
also focus on the elements of language,
communication
and
comprehension
abilities.

- The test items in Mathematics
and Science, and Social Studies will focus
on the concepts, problem solving abilities
and pedagogical understanding of these
subjects. The test items of Mathematics
and Science will be of 30 marks each. The
test shall be evenly distributed over
different divisions of the syllabus of that
subject as prescribed for classes VI-VIII
by the appropriate government.

- The questions in the tests for
Paper II will be based on the topics of the
prescribed syllabus of the State for
classes
VI-VIII
but
their
difficulty
standard as well as linkages could be
upto the senior secondary stage.

8. The question paper shall be
billingual - (i) in language(s) as decided
by the appropriate Government; and (ii)
English language.

18) In the light of the provisions
referred herein above, learned Advocate
General produced the syllabus introduced
from Class 1st to Class 12th and
submitted that the questions of the TET
are not out of syllabus. The questions
were within the syllabus as prescribed
under the guidelines. Reference may be
made regarding question Nos.121, 133,
140 and 150, from the syllabus introduced
by the NCERT from class 1st to
secondary level, which is as under:
क्र
सं
सीरीज
"C: प्रश्न
सं.

प्रश्न
अभ्यर्थि
य ं
द्वारा
माने
जाने
वाले
उत्तर
र्वकल्प
सं.
र्वभाग
द्वारा
र्िनांक
22 .11
.2017
क
प्रकार्ि
त
उत्तर
र्वष
य
र्विे
षज् ं
द्वारा
र्िए
गए
अर्भ
मत
के
अनु
सार
सही
उत्तर
र्वक
ल्प
सं.
व
आ
ख्या
र्वषय
र्विेषज् ं
द्वारा
उपलब्ध
कराये
गए
संिर्भित
साक्ष्य व
लेखक के
नाम
01
121
The
Constit
uent
Assemb
ly
adopted
our
Nationa
l
Anthem
on:
(1) 20th
January
, 1950
(2) 24th
January
, 1950
(3) 21st
May,
1949
(4) 13th
out of
syllab
us

2
2.
प्रश्न
पयाि
वरण
के
उप
र्वष
य
र्वज्ा
नं
एवं
सामा
र्जक
र्वज्ा
नं
की
व्या
प्ति
उ.
प्र.
र्िक्षक
पात्रता
परीक्षा
हेतु र्नगित
मागििी
र्सद्ांत
में
प्राथर्मक
स्तर
(कक्षा
1
से 5 )
हेतु
उप्तिप्तख
त
पाठ्यक्रम
के
अंतगित -
158 INDIAN LAW REPORTS ALLAHABAD SERIES
Novem
ber,
1949

और
सम्ब
न्ध
के
अंत
गित
है
1 उ प्र.
बेर्सक
र्िक्षा
पररषि्
द्वारा
संचार्लत
कक्षा - 5
की
पुस्तक
"हमारा
पररवेि"
के
पाठ
"हमारा
संर्वधान"
के
अनुसार
पृष्ठ
सं.
११२-११३
व 2 कक्षा
- 6 की
"हमारा
इर्तहास
और
नागररक
जीवन" के
पाठ
"सभी
जान एक
हैं"
पृष्ठ
सं. 94-95
02
133
The
number
of
perman
ent
membe
rs
of
the UN
Securit
y
Council
is:
(1) 3
(2) 4
(3) 5
(4) 6

out of
syllab
us

3
3
प्रश्न
पयाि
वरण
के
उप
र्वष
य
र्वज्ा
नं
एवं
सामा
र्जक
र्वज्ा
नं
की
व्या
प्ति
और
सम्ब
न्ध
के
अंत
उ.
प्र.
र्िक्षक
पात्रता
परीक्षा
हेतु र्नगित
मागििी
र्सद्ांत
में
प्राथर्मक
स्तर
(कक्षा
1
से 5 )
हेतु
उप्तिप्तख
त
पाठ्यक्रम
के
अंतगित -
उ
प्र.
बेर्सक
र्िक्षा
पररषि्
द्वारा
गित
हैं
संचार्लत
कक्षा - 5
की
पुस्तक
"हमारा
पररवेि"
के
पाठ
"र्वश्व
िांर्त एवं
संयुक्त
राष्ट्र संघ"
के
पृष्ठ
सं.
119120

कक्षा - 8
की
पुस्तक
"हमारा
इर्तहास
और
नागररक
जीवन" के
पाठ
"संयुक्त
राष्ट्र संघ"
के
पृष्ठ
सं.
104105
03
140
Funda
mental
Duties
are
adopted
from
the
Constit
ution of
which
country
?
(1)
German
y
(2)
United
Kingdo
m
(3)
USA
(4)
USSR
1, out
of
syllab
us

4
4,
प्रश्न
पयाि
वरण
के
उप
र्वष
य
र्वज्ा
नं
एवं
सामा
र्जक
र्वज्ा
न
की
व्या
प्ति
और
सम्ब
न्ध
के
अंत
गित
उ.
प्र.
र्िक्षक
पात्रता
परीक्षा
हेतु र्नगित
मागििी
र्सद्ांत
में
प्राथर्मक
स्तर
(कक्षा
1
से 5 )
हेतु
उप्तिप्तख
त
पाठ्यक्रम
के
अंतगित -
उ.
प्र.
बेर्सक
र्िक्षा
पररषि्
द्वारा
संचार्लत
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
159
हैं

कक्षा - 7
की
पुस्तक
"हमारा
इर्तहास
और
नागररक
जीवन" के
पाठ
"हमारा
संर्वधान"
के
पृष्ठ
सं.
108
के
अनुसार
माध्यर्मक
र्िक्षा
पररषि्
के
पाठ्यक्र
मानुसार
कक्षा -11
की
माध्यर्मक
नागररक
िास्त्र
पुस्तक के
पृष्ठ 172 व
185
के
अनुसार
04
150
The
Head
Office
of
the
Internat
ional
Court
of
Justice
is
situated
in :
(1)
Geneva
(2) The
Hague
(3)
New
York
(4)
Paris

out of
syllab
us
2
2
प्रश्न
पयाि
वरण
के
उप
र्वष
य
र्वज्ा
नं
एवं
सामा
र्जक
र्वज्ा
न
की
व्या
प्ति
और
सम्ब
न्ध
के
अंत

उ.
प्र.
र्िक्षक
पात्रता
परीक्षा
हेतु र्नगित
मागििी
र्सद्ांत
में
प्राथर्मक
स्तर
(कक्षा
1
से 5 )
हेतु
उप्तिप्तख
त
पाठ्यक्रम
के
अंतगित -
उ.
प्र.
बेर्सक
र्िक्षा
पररषि्
गित
हैं

द्वारा
संचार्लत
कक्षा - 5
की
पुस्तक
"हमारा
पररवेि"
के
पाठ
"र्वश्व
िांर्त एवं
संयुक्त
राष्ट्र संघ"
के
पृष्ठ
सं.
119120
एवं
कक्षा
8
की
पुस्तक
"हमारा
इर्तहास
और
नागररक
जीवन" के
पाठ
"संयुक्त
राष्ट्र संघ"
के
पेज
105
के
अनुसार

19) In view of the aforesaid, his
submission is that the learned Single
Judge holding the question Nos.121, 133,
140 and 150 to be out of syllabus is
erroneous in nature and without taking
into consideration the material brought
before learned Single Judge at the time of
submission made in the writ petition.

20) His next submission is that the
learned Single Judge has also erred in law
in passing the judgment and order holding
himself to be expert on the subject matter
ignoring the judgment passed by Hon'ble
Supreme Court in the case of Ran Vijay
Singh and others Vs. State of U.P. and
others; 2018 (2) SCC 357.
160 INDIAN LAW REPORTS ALLAHABAD SERIES

21) Per contra, Sri Sandeep Dixit,
learned Senior Advocate for the respondents
submitted that the learned Single Judge has
committed no error in law in passing the
judgment and order dated 06.03.2018. He
further submitted that question Nos.121, 133,
140 and 150 cannot be questioned from the
syllabus of Environmental Studies and on
the basis of information received from the
National Council for Education Research
and Training (NCERT), he submitted that
question Nos.121, 1331, 140 and 150 may
be part of the Political Science, therefore, his
submission is that the argument advanced by
learned Advocate General is not acceptable
on the point addressed by him.

22) Sri Sandeep Dixit, learned
Senior Advocate for the respondents
further submitted that in accordance with
the provisions of sub Section (1) of
Section 23 of Right of Children to Free
and Compulsory Education Act, 2009, the
NCTE
has
laid
down
minimum
qualification for a person to be eligible
for appointment as teacher in Class 1st to
Class 8th.

23) He further submitted that
procedure for selection of Assistant
Teachers in primary schools is regulated
by the U.P. Basic Education (Teachers)
Service Rules, 1981 and vide 20th
amendment dated 09.11.2017 in Rule 8
along with TET, Assistant Teachers
Recruitment Examination has been added.
In support of his submission, he placed
reliance upon certain judgments, which
are as under:

a) Bhanu Pratap Singh Vs.
State of Uttarakhand and others;
Special Appeal No.886 of 2019 decided
on 27.09.2019.

b) Richal and others Vs.
Rajasthan Service Commission and
others; (2018) 8 SCC 81.

24) We have considered the
submissions advanced by learned counsel
for the parties and the record placed along
with the appeal, counter affidavit and
supplementary counter affidavit in as
much as the judgments relied upon by
learned counsel for the parties and the
material placed by learned Advocate
General and Sri Sandeep Dixit, learned
Senior Advocate and the guidelines issued
by NCERT showing the questions to be of
political science.

25) In regard to the submission of
learned counsel for the respondents that
environmental
studies
was
limited
syallabus confined to family and friends,
food,
shelter,
water,
travel,
things.
Questions pertaining to adoption of
National Anthem by the Constitution
Assembly, the number of permanent
members
of
UN
Security
Council,
Fundamental duties etc. would not fall in
the syllabus of Environmental Studies, we
have
considered
the
material
and
guidelines placed before this Court.

26) On its perusal, it is established
that the questions fall in part V pertaining
to paper of environmental studies. From
perusal of the same, it is also reflected
that the test for first paper will be based
on topics of the prescribed syllabus for
Class 1st to Class 5th, but their difficulty
standard and linkages up to secondary
stage. On examination of the syllabus
produced we found that these questions
are of Environmental Studies, thus, the
submission advanced by learned counsel
for the respondents and the finding
returned by learned Single Judge that
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
161
these questions are out of syllabus are
erroneous in nature and are not acceptable
in law.

27) On perusal, we find and what
clearly comes out is that the prescribed
book for the syllabus of "i;kZoj.k v/;;u"
includes "foKku vkSj lekftd foKku dh
fo;kIrh vksSj laca/k" for which the book
prescribed is "gekjk ifjos'k". In case the
difficulty level up to the secondary level is
seen, then it clearly comes out that answers
pertaining to National Anthem, Security
Council, International Court of Justice and
Fundamental Duties i.e those four questions
which were held to be outside the syllabus
are all questions for which the difficulty
standard and linkages can easily be
ascertained and seen up to the secondary
stage from the books themselves.

28) Keeping this view point into
consideration and in order to have a
broader perspective, this Court has gone
through the definition of "gekjk ifjos'k" the
prescribed book for Class-Vth. As per
dictionary meaning the word ''ifjos'k
translates
to
"Environment"
or
"Surroundings" as per Google. The
meaning of the word " ifjos'k.k" as per
Oxford Hindi-English Dictionary, is "
Surrounding;
Enclosing".
The
New
Lexicon Webseter's Dictionary defines
Environment
as
"
Surroundings".
Likewise
the
Illustrated
Oxford
Dictionary defines the word Environment
as " The totality of the physical conditions
on the Earth or a part of it". As per the
source-:
http://mhrd.gov.in/sites/upload_files/mhrd
/files/Learning_outcomesPdf
Pages88,86,97,98,99, uploaded by NCERT the
learning
outcomes
in Environmental
Studies at the primary stage has been
introduced for the purpose exposing
children to the real situations in their
surrounding to help them connect, be
aware of, appreciate and be sensitised
towards the prevailing environmental
issues (natural, physical, social and
cultural). It also indicates that the
Environmental Studies not only helps
children to get acquainted with their own
environment but it also strengthens their
bond with it.

29) Further, as the issue of certain
questions being out of syllabus has been
raised that once the paper was of
Environmental Studies, anything not
related to the Environment Studies in its
strict sense could not have been asked by
the paper setter.

30) Here, we have to see that the
qualifying
examination
is
being
conducted for the Teacher Eligibility Test
(TET) i.e for seeing whether the person is
qualified to become a teacher and
thereafter
to
face
examination
for
recruitment as Teacher. The instant
examination pertains to the syllabus of
Class Ist to Vth and children have an
active and inquisitive mind and, thus, in
our opinion the NCTE as well as the
Examination Authority have correctly
framed the question having difficulty
standard and linkages up to the secondary
stage in as much as a child cannot be
restricted from asking questions, which
may be beyond the syllabus prescribed.

31) The material produced by Sri
Sandeep Dixit, learned Senior Advocate
in the shape of NCERT guidelines reflects
that these questions belong to Political
Science is not disputed. It is indicated in
the syllabus of Class 1st to Class 5th, and
permitted
to
be
considered
upon
secondary level by adding it in the
syllabus with the specific stipulation in
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the guidelines that the question can be
asked from the environmental studies.

32) Upon careful examination of the
prescribed books from class 1st to
secondary level, it is evident that the
questions were asked as per guidelines
issued
for
conducting
the
TET
examination, therefore, we are of the view
that learned Single Judge has committed
manifest error of law in holding the
questions to be out of syllabus.

33) Learned Advocate General
assailing the judgment of the learned
Single Judge placed heavy reliance upon
the judgment of Hon'ble Supreme Court
in the case of Ran Vijay Singh (Supra)
and submitted that learned Single Judge
has committed patent error of law acting
himself to be subject expert. It has been
also submitted that learned Single Judge
did not himself record any independent
finding about any fault or block in the
questions based on material placed and
had proceeded to hold the questions to be
incorrect or out of syllabus on the basis of
submission advanced by learned Counsel
for the petitioners. Relevant portion of the
judgment
relied
upon
by
learned
Advocate General in the case of Ran
Vijay Singh (Supra) is being quoted
herein below:

"29. In appeal, this Court set
aside the decision of the High Court and
reiterating the view already expressed by
this Court from time to time and allowing
the appeal of the CBSE it was held: (SCC
p. 526, paras 9-11)

"9. We find that a three-Judge
Bench of this Court in Pramod Kumar
Srivastava
v.
Bihar
Public
Service
Commission has clearly held relying on
Maharashtra State Board of Secondary
and Higher Secondary Education v.
Paritosh Bhupeshkumar Sheth that in the
absence of any provision for the reevaluation of answer books in the
relevant rules, no candidate in an
examination has any right to claim or ask
for re-evaluation of his marks. The
decision in Pramod Kumar Srivastava v.
Bihar Public Service Commission was
followed by another three-Judge Bench of
this Court in Board of Secondary
Education v. Pravas Ranjan Panda in
which the direction of the High Court for
re- evaluation of answer books of all the
examinees securing 90% or above marks
was held to be unsustainable in law
because the regulations of the Board of
Secondary Education, Orissa, which
conducted the examination, did not make
any provision for re- evaluation of answer
books in the rules.

10. In the present case, the byelaws of the All India Pre-Medical/PreDental
Entrance
Examination,
2007
conducted by the CBSE did not provide
for re-examination or re-evaluation of
answer sheets. Hence, the appellants
could
not
have
allowed
such
reexamination or re-evaluation on the
representation of Respondent 1 and
accordingly rejected the representation of
Respondent
1
for
re-examination/reevaluation of her answer sheets......

11. In our considered opinion,
neither the learned Single Judge nor the
Division Bench of the High Court could
have substituted his/its own views for that
of the examiners and awarded two
additional marks to Respondent 1 for the
two answers in exercise of powers of
judicial review under Article 226 of the
Constitution as these are purely academic
matters. ....."

30. The law on the subject is
therefore, quite clear and we only propose
3 All. State of U.P. & Ors. Vs. Mohd. Rizwan & Ors.
163
to highlight a few significant conclusions.
They are:

30.1. If a statute, Rule or
Regulation
governing
an
examination
permits the re-evaluation of an answer sheet
or scrutiny of an answer sheet as a matter of
right, then the authority conducting the
examination may permit it;

30.2. If a statute, Rule or
Regulation governing an examination
does not permit re-evaluation or scrutiny
of an answer sheet (as distinct from
prohibiting it) then the Court may permit
re-evaluation or scrutiny only if it is
demonstrated very clearly, without any
"inferential process of reasoning or by a
process of rationalisation" and only in
rare or exceptional cases that a material
error has been committed;

30.3. The Court should not at
all re-evaluate or scrutinize 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. "

34) On perusal of the paragraphs
referred herein above, it is clear that if a
statute, rule or regulation governing the
examination permits the re-evaluation of
an answer sheet or scrutiny of answer
sheet as a matter of right, then the
authority conducting the examination may
permit it, if statute, rule or regulation
governing the examination does not
permit re-evaluation or scrutiny of an
answer sheet, 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 rationalization and only in rare
and exceptional cases that material error
has been committed.

35) The Court should not at all reevaluate or scrutinize the answer sheets of
the candidates it has no exercise in the
matter and academic matter are best left
open to academics. The Court should
presume the correctness of key answers
and proceed on that assumption.