Bhupinder Singh vs State Of Himachal Pradesh & Another

Tarlok Singh Chauhan, J

Aggrieved by non-selection to the post of TGT (Non-Medical) in the General (BPL) category, the petitioner has filed the instant petition for grant of

substantive reliefs:-

I. “Issue a writ of certiorari to quash annexure P-6, i.e. revised answer key and annexure P-5 i.e. notification/final result for the post of

TGT (Non-Medical) qua the General BPL Category.

II. Issue a writ of mandamus directing the respondent authorities not to implement annexure P-6 i.e. revised answer key and annexure P-9

i.e. notification/final result for the post of TGT (Non-Medical) qua the General BPL Category

III. Issue a writ of mandamus directing the respondent authorities to consider the petitioner for the post of TGT (Non-Medical) against

General BPL Category.â€​

The respondent-Commission published advertisement in the newspaper for filling up 292 posts of TGT (Arts) and 107 TGT (Non-Medical) on

contract basis. Thereafter, the requisition for filling up 198 more posts of TGT (Arts) and 92 posts of TGT (Non-Medical) was also called. On

11.05.2019, the Commission conducted examination for the post of TGT (Non-Medical), in which the petitioner being eligible, participated in the

screening test. Thereafter, on 13.05.2019, answer key of the questions was uploaded on the official website of the Commission and at the same time,

it invited objections/representations against the uploaded answer key, which were to be preferred uptil 21.05.2019. On 18.06.2019, the revised result

on the basis of the objections that were submitted by the candidates, was published on the official website of the Commission.

It is not in dispute that the petitioner did not represent when the initial key was published on 13.05.2019 and even after the final key answers have

been published on 18.06.2019 and yet participated in the written screening test held on 11.05.2019. The result of the selection was declared by the

respondents on 05.08.2019, wherein the name of the petitioner could not make grade as he is not selected. It is in this background the petitioner has

preferred the instant petition.

It is contended by the petitioner that since the revised key answers, more particularly of questions appearing at Serial Nos.2, 10, 111 and 144 were

incorrect, therefore, directions need to be passed for correcting those key answers on the basis of material placed on record. According to the

petitioner, it is open to the Court in view of the judgment rendered by the Hon’ble Supreme Court titled as Richal and others Versus Rajasthan

Public Service Commission, (2018) 8 Supreme Court Cases 81.

On the other hand, learned Advocate General assisted by Mr. Vinod Thakur, learned Additional Advocate General, for respondent No.1 and Mr.

Angrez Kapoor, learned Standing Counsel for respondent No.2, have vehemently argued that the petitioner having taken a chance without challenging

the key answers and being unsuccessful candidate, cannot turn around and assail or lay challenge to the selection.

We have heard learned counsel for the parties and have gone through the record carefully.

As regards the reliance placed by learned counsel for the petitioner upon Richal’s case (supra), the same is clearly misplaced as the

Hon’ble Supreme Court therein had been discussing qua dealing with the scope of judicial review regarding the correctness of the key answers

and it was held that the Courts entertain such challenge on a very limited ground and has always given due weightage to the opinion of the subject

experts. The relevant observation is contained in paras 14 to 19, which reads as under:-

“14. The issue which has been canvassed in this batch of appeals relates to correctness of final key answers as uploaded by the

Commission after considering objections thereto. The appellants' case is that the treatment of the objections by the Expert Committee was

not based on authoritative text books on the subject and several errors crept into the answer key vitiating the merits of the candidates

affecting the entire selection.

The issue pertaining to scope of judicial review of correctness of key answer had been considered by this Court time and again. This

Court had entertained such challenges on very limited ground and has always given due weight to the opinions of subject experts. A three

Judge Bench of this Court in Kanpur University, through Vice−Chancellor and others vs. Samir Gupta and others, 1983 (4) SCC 309, had

occasion to consider a case where challenge was made to the key answers supplied by the paper−setter with regard to multiple choice of

the objective type test for admission in medical courses through combined Pre−Medical Test. The High Court while considering the

challenge of the candidates to various key answers accepted the challenge to different questions. With regard to some of the questions the

High Court held that the key answer is not the correct answer. This Court repelling the challenge made the following observations in paras

15 and 16: (SCC pp.315- 16)

“15. The findings of the High Court raise a question of great importance to the student community. Normally, one would be inclined to

the view, especially if one has been a paper−setter and an examiner, that the key answer furnished by the paper−setter and accepted by the

University as correct, should not be allowed to be challenged. One way of achieving it is not to publish the key answer at all. If the

University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. But that is not

a correct way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional

courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students

would have had to suffer the injustice in silence. The publication of the key answer has unraveled an unhappy state of affairs to which the

University and the State Government must find a solution. Their sense of fairness in publishing the key answer has given them an

opportunity to have a closer look at the system of examinations which they conduct. What has failed is not the computer but the human

system.

Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of

a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be

wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly

demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well−versed in the particular subject would regard

as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read

by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is

incorrect.â€​

Following the above judgment in Kanpur University (supra) this Court in Manish Ujwal and others vs. Maharishi Dayanand Saraswati

University and others, 2005(13) SCC 744, reiterated the principle in following words in paragraphs 9 and 10:

“9. In Kanpur University v. Samir Gupta considering a similar problem, this Court held that there is an assumption about the key

answers being correct and in case of doubt, the Court would unquestionably prefer the key answers. It is for this reason that we have not

referred to those key answers in respect whereof there is a doubt as a result of difference of opinion between the experts. Regarding the

key answers in respect whereof the matter is beyond the realm of doubt, this Court has held that it would be unfair to penalise the students

for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong. There is no

dispute about the aforesaid six key answers being demonstrably wrong and this fact has rightly not been questioned by the learned counsel

for the University. In this view, students cannot be made to suffer for the fault and negligence of the University.

The High Court has committed a serious illegality in coming to the conclusion that it cannot be said with certainty that answers to the six

questions given in the key answers were erroneous and incorrect. As already noticed, the key answers are palpably and demonstrably

erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the

High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more

because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same

time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant

caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of

the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young

student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably

erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher

responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University

and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned,

directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and

demonstrably erroneous key answers, but we refrain from issuing such directions in the present case.â€​

To the same effect, this Court in Guru Nank Dev University vs. Saumil Garg and others, 2005(13) SCC 749, had directed the University

to revaluate the answers of 8 questions with reference to key answers provided by CBSE. This Court also disapproved the course adopted

by the University which has given the marks to all the students who had participated in the entrance test irrespective of whether someone

had answered questions or not.

Another judgment which is referred to is Rajesh Kumar and others vs. State of Bihar and others, 2013 (4) SCC 690, where this Court

had occasion to consider the case pertaining to erroneous evaluation using the wrong answer key. The Bihar Staff Selection Commission

invited applications against the posts of Junior Engineer(Civil). Selection process comprised of a written objective type examination.

Unsuccessful candidates assailed the selection. Single Judge of the High Court referred the model answer key to experts. Based on the

report of the experts, Single Judge held that 41 model answers out of 100 are wrong. The Single Judge held that the entire examination was

liable to be cancelled and so also the appointments so made on the basis thereof. The Letters Patent Appeal was filed by certain candidates

which was partly allowed by the Division Bench of the High Court. The Division Bench modified the order passed by the Single Judge and

declared that the entire examination need not be cancelled. The order of Division Bench was challenged wherein this Court in paragraph

19 has held:

“19. The submissions made by Mr Rao are not without merit. Given the nature of the defect in the answer key the most natural and

logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re− evaluated on the basis thereof.

There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there

was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh

attempt by all concerned. The process of re− evaluation of the answer scripts with reference to the correct key will in addition be less

expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the

time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to

say that the re−evaluation was and is a better option, in the facts and circumstances of the case.â€​

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.â€​

It would be noticed that the Hon’ble Supreme Court, while laying down the scope of judicial review, has held that the Court can in a given case,

send the key answers to be examined by experts, but then this is not the issue in this case, because admittedly, the petitioner did not file or prefer any

objection to the provisional key answers dated 11.05.2019 and even thereafter to the final key and having failed to do so, it clearly estopped him from

filing the instant petition.

In this regard, we need not to multiply authorities.

A reference can conveniently be made to the recent judgment of the Hon’ble Supreme Court in Anupal Singh and others Versus State of Uttar

Pradesh through Principal Secretary, Personnel Department and others, (2020) 2 SCC 173.

The petitioner after having taken a calculated chance, appeared in the selection process without any demur in the written examination and there

was no challenge of the process/key answers now only because the interview is not palatable to him, has filed the instant petition.

In such cases, relief is to be declined by applying the principles of estoppel, acquiescences and waivers referred in this regard in two recent

judgments. In Anupama’s case, it was observed in paras 55, 56, 57, 58 and 59 as under:-

“55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12-10-2014 and the

selection. On behalf of the appellants, it was contended that after the revised Notification dated 12-10-2014, the private respondents

participated in the interview without protest and only after the result was announced and finding that they were not selected, the private

respondents chose to challenge the revised Notification dated 12-10-2014 and the private respondents are estopped from challenging the

selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the

selection process.

Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken

chance to get selected at the said interview and ultimately, finds himself to be unsuccessful, in Madan Lal v. State of J&K (1995) 3 SCC

486, it was held as under: (SCC p. 493, para 9

“9. … The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the

petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral

interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written

test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the

interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the

process of interview was unfair or the Selection Committee was not properly constituted.â€​

In K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, it was held as under:( SCC p. 426, para 73)

“73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn

round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper.â€​

In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, it was held as under:( SCC p. 107, para 19)

“19. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127… …

It was further observed: (SCC p.149, para 34)

‘34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be

well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not

“palatable’ to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some

lacuna in the process.’ â€​

Same principle was reiterated in Sadananda Halo v. Momtaz Ali Sheikh, (2008) 4 SCC 619 wherein, it was held a under: ( SCC pp. 645-

46, para 59)

“59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course

the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India

v. S. Vinodh Kumar, (2007) 8 SCC 100……. The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla,

1986 Supp SCC 285, where it has been held specifically that when a candidate appears in the examination without protest and subsequently

is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise.â€​

In addition, a reference can also be made to another judgment in Meeta Sahai Versus State of Bihar & Ors., (2019) 17 Scale 718, wherein while

dealing with the contentions regarding the preliminary issue of maintainability of the petition on the ground that the petitioner therein had taken part in

the selection process and could not challenge it later due to mere failure in selection, it was observed in paras 16 and 17 as under:-

“16. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The

maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process

cannot later challenge it due to mere failure in selection. The counsel for respondents relied upon a catena of decisions of this Court to

substantiate his objection.

It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as

iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows:

“16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19%

marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the

appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked

jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit

list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did

not commit any error by refusing to entertain the writ petition.â€5 The underlying objective of this principle is to prevent candidates from

trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it

in the 4 (2010) 12 SCC 576 5 See also: Madan Lal v. State of J&K [(1995) 3 SCC], Marripati Nagaraja v. State of A.P.[(2007) 11 SCC

522], Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171] and K.A.â€​

It was also clarified that the principle could only apply to the participation in the selection process and not any illegality committed during the selection

which is not even the pleaded case or the challenge obtaining in this case.

For all the reasons above, we find no merit in this writ petition and the same is dismissed. Interim order is vacated. Pending application(s), if any,

also stand disposed of.