Uttar Pradesh Subordinate Service Selection Commission and Another vs Brijendra Pratap Singh and Another

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7720 OF 2021 (Arising out of SLP (C)No. 10914 of 2021)

UTTAR PRADESH SUBORDINATE SERVICE SELECTION COMMISSION & ANR. Appellant(s)

VERSUS

BRIJENDRA PRATAP SINGH & ANR. Respondent(s)

J U D G M E N T

K. M. JOSEPH, J.

(1) Leave granted.

(2) 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.

(3) In the examination, question No. 46 was as follows:

Signature Not Verified Digitally signed by

“46. Presently who is the Panchayati Raj Minister in Nidhi Ahuja Date: 2021.12.18 11:21:03 IST Uttar Pradesh?

Reason:

A. Sh. Shivpal Yadav

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B. Sh. Kailash Yadav C. Sh. Balram Yadav D. Sh. Durga Prasad Yadav”

(4) The answer key came to be published on 25.02.2016. As

is clear from the decision of the Commission in regard to

question No. 46, as on the date when the examination took

place on 21.02.2016, 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. In

fact this was an uncontemplated event as can be seen with

the benefit of hindsight. The appellant Commission,

accordingly, took the following decision on 29.03.2016:

Sl. Issue for Decision No. consideration 01 Regarding objections “During review/scrutiny of raised by candidates objections raised by the against answer given candidates against answer keys in answer keys of the of written examination of Gram question paper of Panchayat Adhikari (General written examination Selection) Examination-2015 held of Gram Panchayat on 21 February, 2016 (Sunday), Adhikari (general this face came to notice that Selection) the correct option of answer of Examination, 2015 one question (Set A-55, Set B- 45, Set C-46 and Set D-63) is Shri Kailash Yadav, Panchayati Raj Minister of Uttar Pradesh State (Option-’B’), had Shri Yadav not expired on 09th February, 2016 i.e. prior to the date of written examination, i.e. 21 February, 2016.

01 (one) mark is fixed for each question. In the position explained, after due

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consideration, it was unanimously decided that the candidates who have chosen option (‘B’) as 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.

(5) 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 belonged (OBC) was 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

noticed:

“It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:-

A. 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. B. 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 (General Selection)

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Examination-2015 (Advertisement no. 7(3)/2015. C. 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 suffer irreparably.

D. To Award the cost of the petition to the petitioners.”

(6) Learned Single Judge did not find merit in the

contention of the respondent and the writ petition was

dismissed.

(7) 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.

(8) We have heard learned counsel appearing on behalf of

the appellant and learned counsel appearing on behalf of the

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respondent.

(9) Learned counsel appearing on behalf of the appellant

would contend that the direction to delete question no. 46

would cause serious prejudice. On the basis of the

selection which commenced in the year 2015 and after the

examination took place on 21.02.2016 in regard to which

results were published on 24.12.2016 and pursuant to which,

appointments of number of candidates stood materialised

would have to be reworked. Learned counsel for the

appellant, no doubt, drew support from the view taken by the

judgment of this Court in Kanpur University Through Vice-

Chancellor v. Samir Gupta (1983) 4 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

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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 not correct, if a candidate did not answer the

question, it should not work against him. This is in stark

contrast with the case of the respondent who has

undoubtedly, ticked option ‘A’ which at no point of time

could be treated as the correct answer. In other words, the

case of the respondent stands on a different footing from a

candidate who has given an answer which clearly is palpably

wrong. In such circumstances, he would commend for our

acceptance the principle that in the matter of selection by

a body, unless a decision taken is palpably perverse, the

Court should adopt a hands off approach.

(10) 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. More importantly, he drew support from another

development, one Ankur Srivastava and another person filed

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Writ Petition No. 10779 of 2018. In the said case, the

stand of the appellant was that it has been decided to allow

one mark to the question to all candidates across the Board.

He points out that perusal of the order passed in the said

case reveals that the High Court dismissed the writ petition

in view of the submission made by the appellant as grievance

of the petitioners therein did not survive. He would

further also contend before us that the Court may approach

his problem bearing in mind the principle laid down by this

Court in Guru Nanak Dev University v. Saumil Garg and Others

(2005) 13 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

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a question which was without the correct option. It was not

a vague question at that time. Circumstances overtook both

the Commission and the candidates, however, as on the date

of the examination option ‘B’ would be a wrong answer. None

of the options could possibly be the correct answer. The

Commission, therefore, sat and took a decision. It is

worthwhile to notice that the respondent has not chosen to

impugn the said decision in the writ petition as such.

Secondly, we cannot be oblivious to the fact that by the

time, the Division Bench rendered the impugned judgment

which is dated 18.02.21, much water has flown under the

bridge in the form of selection being taken forward and

appointments being made. Therefore, direction to delete the

question at this stage may not be an appropriate remedy

though, we would not ordinarily have questioned the

principle behind such a direction. As far as the other

option which is couched as direction to the appellant is

concerned which is to give a mark to the respondent, we

have to necessarily sustain such a direction on the basis of

the illegality of the decision taken by the appellant being

successfully impugned.

(12) We 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

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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.

(13) We 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 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

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Commission drew a distinction between the categories which

would not therefore, in short, be characterised as palpably

arbitrary.

(14) 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. We record this

statement. It is stated to be part of the rejoinder

affidavit also.

(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.

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