Power of the Court is supervisory in nature and the jurisdiction is not that of an appellate body: Supreme Court of India.
The principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision-making process must be appreciated with reference to relevant well-known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer. The same was observed by Hon’ble K. M. Joseph, J in the matter of Uttar Pradesh Subordinate Service Selection Committee &amp; Anr. vs. Brijendra Pratap Singh &amp; Anr. – [Civil Appeal No. 7720 of 2021]. Brief facts of the case are that in June 2015, the appellant issued an advertisement calling for applications for filling up the post of Gram Panchayat Adhikari. The Minister for Panchayati Raj, Department in the State of Uttar Pradesh, was one Shri Kailash Yadav. Examination, pursuant to the advertisement, was scheduled to take place on 21.02.2016. Shri Kailash Yadav passed away on 09.02.2016. In the examination, question No. 46 was as follows: “46. Presently who is the Panchayati Raj Minister in Uttar Pradesh? A. Sh. Shivpal Yadav B. Sh. Kailash Yadav C. Sh. Balram Yadav D. Sh. Durga Prasad Yadav” As on the date of the examination, Shri Kailash Yadav whose name is shown as the correct answer in terms of Option B had passed away and therefore, Option B would not be correct answer. The appellant Commission, accordingly, took the decision that the candidates who have chosen option (‘B’) as correct answer or did not mark any option for the said question will be awarded 1 mark and no action is required in respect of the candidates who have chosen option A, C, D as the correct answer to this question. The respondent was a candidate in the said examination. Regarding question No. 46, he offered option No. A. He filed a writ petition and prayed that the Hon’ble Court issue a writ order, or direction in writ of Mandamus directing and commanding the respondent nos. 2 &amp; 3 to award the mark of question no. 46 of Booklet Series ‘C’ to the petitioner and prepare a fresh select list. Learned counsel appearing on behalf of the appellant contended that so far as the decision to award marks to those candidates who answered question no. 46 by approving option ‘B’, candidates were given the benefit, as the Commission, was of the view that the said person was indeed the minister, and the answer would have been correct but for his passing away just 12 days prior to the date of the examination. As far as those candidates who did not attempt to answer the question concerned, the Court is persuaded to take the view that noticing that all the answers to the question were as on the date of the examination incorrect, if a candidate did not answer the question, it should not work against him. Per contra, learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter, if he secured sufficiently high marks that he could secure selection, then alone, he would get the benefit. Supreme court after perusing the facts and arguments presented, held that – “This is a case whereas on the date when the examination took place, none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option ‘B’). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option ‘B’. Those who did not answer any of the options, were given marks on the appellant’s premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. In such circumstances, we are of the view that, in the facts of this case, the appellant has made out a case for interference. Appeal is allowed and the impugned judgment stands set aside.”
IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7720 OF 2021 Arising out of SLPExamination 2015 held on 21 February 2016 this face came to notice that the correct option of answer of one question is Shri Kailash Yadav Panchayati Raj Minister of Uttar Pradesh State had Shri Yadav not expired on 09th February 2016 i.e. prior to the date of written examination i.e. 21 February 2016 01mark is fixed for each question. In the position CA No. 7720 2021as correct answer or did not mark any option for the said question be awarded 01(one) mark and no action is required in respect of the candidates who have chosen option A C D as the correct answer of this question The results came to be declared on 24.12.2016. on 27.12.2016 based on the results the appellant made recommendations for filling up the vacancies. The respondent was a candidate in the said examination. In regard to question No. 46 he offered option No. A. He secured 86 marks. The cut off marks for the category to which the respondent belongedwas 87. He fell short of the required cut off by one mark. He filed a writ petition which has finally culminated in the present appeal The prayer sought for in the said writ petition may be “It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to: Issue a writ order or direction in the nature of writ of Mandamus directing and commanding the respondent nos. 2 & 3 to award the mark of question no. 46 of Booklet Series ‘C’ to the petitioner and prepare a fresh select list Issue a writ order or direction in the nature of writ of Mandamus directing the respondent no.2 and 3 to consider the candidature of the petitioner as selected candidate or petitioner may be adjusted on the post of Gram Panchayat Adhikari in Gram Panchayat Adhikari 2015 Issue any other writ order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case so as to secure the ends of justice or else the Petitioners shall D. To Award the cost of the petition to the Learned Single Judge did not find merit in the contention of the respondent and the writ petition was dismissed. By the impugned judgment the Division Bench however allowed the appeal filed by the respondent. The Division Bench took the view that the ‘case at hand is not having any dispute that all the options of question no. 46 were incorrect on the date of the selection test which was due to the sad demise of the then minister’. Awarding of marks to those who did not give the answer to question cannot be accepted to be proper. So also the answer of marking option of Shri Kailash Yadav to be Minister it was found. The Division Bench proceeded to direct the appellant to take a decision to either delete question no. 46 of booklet series ‘C’ or to award the marks to the respondent also and if he came in the merit on awarding of marks then to take further appropriate action as per merit position. We have heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the CA No. 7720 20214 SCC 309. It is his contention that the view taken by the appellant Commission cannot be characterised as palpably perverse. When arriving at such a finding it may not be open in judicial review proceedings to substitute the view taken by the examining body. He would further justify the rationale in the following manner. It was pointed out that so far as the decision to award marks to those candidates who answered question no. 46 by approving option ‘B’ which is Shri Kailash Yadav candidates were given the benefit as the Commission apparently was of the view that the said person was indeed the minister and the answer would have been correct but for his passing away just 12 days prior to the date of the examination. As far as those candidates who did CA No. 7720 2021Per contra learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter if he secured sufficiently high marks that he could secure selection then alone he would get the benefit. More importantly he drew support from another development one Ankur Srivastava and another person filed CA No. 7720 202113 SCC 749. Therein three learned Judges while dealing with the problem of incorrect answers or rather incorrect questions vague questions inter alia held that “It is wholly unjust to give marks to a student who did not even attempt to answer those questions”. He would therefore point out that in the facts of this case the principle is apposite and there is no rationale for the respondent to deny the mark which on all counts he is entitled to 11) The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option ‘B’ to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination In other words as on the date when the examiner settled the question with which we are concerned this is not a case for CA No. 7720 2021We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The CA No. 7720 2021We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place actually none of the answers which were given as options were correct. On the date when the questions were in fact set one answer was correctAs far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answerhas been given one mark. We record this statement. It is stated to be part of the rejoinder 15) In such circumstances we are of the view that in the facts of this case the appellant has made out a case for interference. Appeal is allowed and the impugned judgment stands set aside. No orders as to costs. …. J K.M. JOSEPH …. J PAMIDIGHANTAM SRI NARASIMHA New Delhi December 14 2021