Not permissible to examine question papers and answer sheets and substitute its opinion in place of PSC holds HC

Exam of Inspector in Excise and Comm Tax deptt where petitioner found cheating, failed

21/11/2022

Srinagar, Nov 20: The High Court of J&K and Ladakh at Jammu comprising of Justice Wasim Sadiq Nargal dismissed a writ petition on various reasons and held petitioner not entitled for relief of revaluation as court cannot substitute it's opinion in place of expert opinion. The principle of estoppel will also apply in this case. The text of the order reads…. "
“HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Ghulam Mohd. Mir …..Appellant(s)/ Petitioner(s) Through: Mr. Hamza Prince, Advocate Vs State of J&K and others .…. Respondent(s) Through: Mr. Sajad Ashraf, GA for No. 1 Mr. Azhar ul Amin, Sr. Advocate for Nos. 2 and 3 Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE ORDER
1. The short grievance projected by the petitioner in the present petition is that the petitioner with a view to make himself eligible for promotion as Inspector, has appeared in Part-II examination and succeeded in clearing four papers out of five. Consequently, the petitioner had to reappear in Paper A after clearance of which the petitioner would be declared to have succeeded in part II of the Excise and Commercial Tax Examination to become eligible for promotion as Inspector.
2. It is further stated that the petitioner has worked hard to prepare for the aforesaid Part-II examination and have done well in the said exam conducted on 21.12.2017 under Roll No. 42. The further stand of the petitioner is that he was shocked to see the result of the exam which was declared on 24.05.2018, whereby, the petitioner has been shown to have failed having 2 OWP No. 612/2019 secured only 24 marks as against the minimum of 34 marks required to pass the exam.
3. The further stand of the petitioner is that being dissatisfied with the result, the petitioner filed an application under Right To Information (RTI) Act, 2009 before the respondent No. 2 and claimed Xerox copy of his answer book of Paper A of Excise and Commercial Taxes Part-II.
4. In response to the application under RTI, the respondent No. 2 issued an order vide No. PSC/exam/PIO/3/2018 dated 04.06.2018, whereunder the information was conveyed to the petitioner that he cannot be provided the information as per decision of the Commission. It was further observed in the said order that in case the applicant/petitioner is aggrieved, he may file an appeal before the 1st Appellate Authority i.e. respondent No. 3 herein. Thereafter, the petitioner filed an appeal before the Appellate Authority on 09.10.2018, which was decided on 19.01.2019, the operative part is reproduced as under: "After hearing the parties, the appeal is disposed of with the direction to the Appellant (petitioner) to visit the camp office of the office of the PSC on 15.02.2019 to have inspection of his answer booklet in the presence of Assistant Controller Examination. The PIO, PSC is also directed to facilitate the inspection of paper booklet on the scheduled date and time."
5. It has further been projected by the petitioner that in compliance of the order of Information Commission, the respondents facilitated the inspection of the paper booklet to the petitioner and during the inspection, it was observed by the petitioner that the examiner has miserably failed to appreciate the quality of the answers written by the petitioner according to knowledge gained from books in respect of the following questions: 3 OWP No. 612/2019 "Question No. a "Explain the term burden of proof under Evidence Act, 1977, on whom does the Burden of Proof lie. State the rules determining the Burden of Proof in a suit." Question no. b "Discuss the provisions of the evidence Act, 1977 relating to Relevancy of facts." Question No. c "What is the Bailable and non-bailable offence under what circumstances bail can be granted for a non bailable offence." Question No. 6 What is meant by arrest. When can be police arrest a person without warrant. What is the right of an arrested person?"
6. The short grievance which has been projected by the petitioner in the present writ petition is that the answers have not been correctly evaluated by the experts. The further stand of the petitioner is that the evaluation could have been done by a legal expert only and as per the stand of the petitioner, the evaluator is a retired KAS Officer. The further stand of the petitioner is that the examiner was not competent to evaluate the paper in law.
7. Feeling aggrieved of the same, the petitioner submitted an application allegedly on 14.02.2019 requesting the respondent No. 3 to examine the answer paper referred to above from some legal expert for re-evaluation so that justice is done with the petitioner.
8. It is further submitted by the petitioner that due to refusal on the part of the respondents to have the answer paper in question re-evaluated by a legal experts, the petitioner was debarred from earning promotion to the post of Inspector and feeling aggrieved of the same, the petitioner has filed the present petition and has sought the following reliefs: "Writ of Mandamus/Certiorari or any other appropriate writ or direction in the like nature to respondents and: 1. Direct the Respondents to place/produce the answer paper written by the petitioner before the Hon'ble Court; 2. Direct the respondents to have the answer paper of the petitioner revaluated by a legal expert."
9. Mr. Hamza Prince, learned counsel for the petitioner has vehemently argued that the petitioner has been running from pillar to post to convince the respondents that the evaluation of his answer paper pertaining to law subject has been done by a person, who has not been a student of law. He further argued that the respondents have not given any consideration to the request of the petitioner to have the answer paper re-evaluated by a legal expert with the result a grave injustice has been caused to the petitioner.
10. Per Contra, Mr. Azhar ul Amin, learned senior counsel for the respondents submitted that the grievance of the petitioner that the evaluator is not a legal expert but a retired KAS Officer is sheer fallacy and mere presumption as the identity of the evaluator is not revealed and the plea projected by the petitioner, as such, has no legal or factual basis.
11. The stand of the respondents-Public Service Commission in the reply filed by the respondents is that the petitioner was working as Sub Inspector in the Commercial Taxes Department and he appeared in the Excise and Commercial Taxes Part-II, Departmental Examination and the result of the same was declared on 24.05.2018 including that of the petitioner. Petitioner secured only 24 marks in one paper as against the minimum 34 marks required to pass the said examination.
12. It is further stated in the reply that the petitioner filed an application under RTI Act and demanded Xerox copy of his answer book of Paper A of Excise and Commercial Taxes Part-II, departmental examination and in this regard, the Commission issued an order dated 04.06.2008, whereby it was conveyed that the information cannot be provided as per the decision of the Commission. Thereafter, the petitioner filed an appeal before the Appellate 5 OWP No. 612/2019 Authority and the Appellate Authority has disposed of the appeal filed by the petitioner with a direction to visit the camp office of the Public Service Commission on 15.02.2019 for inspection of his Answer booklet in the presence of Assistant Controller of Examination. The PIO of commission was also directed to facilitate the inspection of Paper booklet on the scheduled date and time. In compliance thereof, the respondents facilitated the inspection of the paper booklet by the petitioner.
13. It has been further projected by the respondents that evaluation and award of marks is done by the evaluators on uniform standard and the papers have been evaluated by a subject matter expert of high repute, thus all thirty four candidates except petitioner who appeared in the said paper were satisfied with the evaluation. If plea of petitioner is accepted, it will have negative effect on all other candidates who are satisfied with the process, thus, will produce chaotic situation. The learned counsel further submitted that there has to be finality to the process of examination and cannot be left open ended for flimsy pleas as projected by the petitioner in this petition.
14. It is further stated in the reply that the petitioner's grievance that the evaluator is not a legal expert but a retired KAS Officer is sheer fallacy and mere presumption as the identity of the evaluator is not revealed and the plea projected by the petitioner, as such, is fit of his own imagination which is far from truth.
15. The further stand of the respondents which can have bearing on the present case and also will prove the conduct of the petitioner is that the petitioner reappeared in the Excise and Commercial Taxes Part-II in the year 2019 and was caught indulging in unfair means during examination and disciplinary 6 OWP No. 612/2019 action has already been initiated against the petitioner. The petitioner has not only proved his incompetence in the subject but his unworthy conduct can be established from the fact that he was caught indulging in unfair means during examination. Since the petitioner has reappeared in the said paper, he is estopped under law to challenge the earlier process of examination.
16. Heard learned counsel for the petitioner and perused the record.
17. It is settled preposition of law by the Hon'ble Supreme Court in various authoritative pronouncements that evaluation and award of marks is done by the evaluators on uniform standards who are experts in the field and thus, court cannot substitute its opinion having no expertise in the same. I am fortified by the view of the Hon'ble Supreme Court in Himachal Pradesh, Public Service Commission v Mukesh Thakur and another, (2010) 6 SCC 759, in which it has been held:
"20. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent no.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
18. The Supreme Court in another case, titled, Maharashtra State Board of Secondary and Higher Secondary Education and anr v Paritosh Bhupesh Kumar Sheth and others, (1984) 4 SCC 27, has held as under:
"29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be 7 OWP No. 612/2019 extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.”
19. The Supreme Court in Vikesh Kumar Gupta and another v State of Rajasthan, (2021) 2 SCC 309 has also held as under: 14. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr.). Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations [See- Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) 15. Examining the scope of judicial review with regards to reevaluation of answer sheets, this Court in Ran Vijay Singh & Ors. v. State of Uttar Pradesh & Ors. held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows:
"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 8 OWP No. 612/2019 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. 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."
20. In Basavaiah (Dr.) v. Dr. H. L. Ramesh, (2010) 8 SCC 372, the Apex Court has held as under: "38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fide has been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters."
21. Again in University Grants Commission v Neha Anil Bobde (Gadekar), (2013) 10 SCC 519, the Apex Court has held as under:
"31. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India."
22. Admittedly, in the present case, as per stand of the respondents, the papers have been evaluated by a subject matter expert of high repute and thus all 34 candidates except the petitioner who appeared in the paper are satisfied with the evaluator and not even a single candidate has raised any grouse except the petitioner, who has failed in the examination of Excise and Commercial Taxes Part-II.
23. Even otherwise also, if the plea of such candidates are accepted for revaluation, then it will be an unending process and there will be no finality to the process of examination and accordingly, it cannot be left open to the whims and caprice of an individual who has failed in the said exam by virtue of his incompetence in the subject.
24. The Hon'ble Supreme Court in Sunil Kumar and others Etc v The Bihar Public Service Commission and others decided on 14.10.2015, has held as under:
"21. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an indepth consideration of questions that are more suitable for the experts in the field. Holding of public examinations involving wide and varied subjects/disciplines is a complex task which defies an instant solution by adoption of any singular process or by a strait jacket formula. Not only examiner variations and variation in award of marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multidisciplinary examination format is one such fine issue that was coincidentally noticed in Sanjay Singh (supra). A conscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination; the standards of inter subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of consideration. All such questions and, may be, several others not identified herein are required to be considered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, normally, limited to instances of arbitrary or malafide exercise of power."
25. As per the stand of the respondents, the petitioner has not only failed in the examination, but he was also caught indulging in unfair means during the examination, when the petitioner reappeared in the Excise and Commercial Taxes Part-II departmental examination in the year, 2019 for which the disciplinary action has already been initiated against the petitioner. Thus, the petitioner has not only proved his incompetence in the subject in which he has failed but his unworthy conduct can be established from the fact that he was caught indulging in unfair means during examination.
26. Even otherwise also, the present petition is not maintainable as the petitioner has reappeared in the said paper in which he has failed and has taken a chance subsequently, where he was caught indulging in unfair means during the examination and consequently, he is estopped under law to challenge the earlier process of his examination as he has acquiesced his right to seek reevaluation by taking a chance to appear in subsequent examination by reappearing in the Part-II departmental examination in 2019. Thus, the law of estoppel by conduct also hold good against the petitioner in the present case.
27. Thus, viewed from any angle, the present petition is not maintainable and is liable to be dismissed at the very threshold for the reasons mentioned hereinabove coupled with the settled legal position.
28. Accordingly, the present petition is dismissed.
29. Interim direction, if any, shall stand vacated.”

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