Ishank vs Uttarakhand Public Service Commission And Another

Ramesh Ranganathan, CJ

Notice before admission returnable in three weeks. The petitioner secured 141.75 marks in the preliminary examination. The last candidate, permitted to appear in the main examination, secured 145.75 marks in the preliminary examination. The difference between the marks which the petitioner secured, and the last candidate permitted to appear in the main examination, is four marks. In terms of the applicable instructions, candidates who answered a question wrongly are awarded negative marks of 0.25 for every wrong answer.

Mr. M.C. Pant, learned counsel for the petitioner, would draw our attention to question numbers 49, 51, 164, 175 and 182 to submit that, though the petitioner had answered four of these questions correctly, he was erroneously held to have given the wrong answers; and with respect to the fifth question, the key answer was itself wrong, and the petitioner, therefore, chose not to answer the said question. Question No. 49 is "which of the following State Legislatures has one house?" While the options given are (a) Bihar, (b) Karnataka, (c) Tamil Nadu and (d) Maharashtra, the petitioner claims that all the four options are wrong as all of them have two houses. We must express our inability to agree, for Tamil Nadu does not have a Legislative Council. The Public Service Commission cannot, therefore, be faulted in this regard. As the petitioner did not attempt this question at all, he could not have been awarded any negative marks for this question.

Question No. 51 is "whether Exchange, under the Transfer of Property Act, is equal to (a) partition, (b) gift, (c) sale and (d) None of these." While the petitioner answered the said question as "sale", the Public Service Commission claims that the answer is "d" which is "none of these". The proviso to Section 118 of the Transfer and Property Act, 1882 stipulates that a transfer of property, in completion of an exchange, can be made only in manner provided for the transfer of such property by sale.

Mr. B.D. Kandpal, learned counsel for the Public Service Commission, would contend that the mere fact that the transfer of property, in the case of exchange, is to be made in the manner provided for the transfer of property by sale would not equate exchange to sale. We are of the, prima facie, view that the answer which the petitioner gave is a possible answer.

Question No.164 is that (1) offences under Sections 454 and 456 of the Indian Penal Code may be tried by summary trial, (2) the Sentence under summary trial shall not be passed for less than three months, and (3) the procedure of trial of summon case shall be followed in summary trial. The options given below are:- (a) only (1) and (2) are correct; (b) only (2) and (3) are correct; (c) only (1) and (3) are correct, and (d) All (1), (2) and (3) are correct.

While the petitioner answered the said question by ticking "c", the Public Service Commission claims that the answer is (d) i.e. all (1), (2) and (3) are correct. The second limb of the question is that a sentence, under summary trial, shall not be passed for less than three months. While the original question paper in Hindi correctly provides that the sentence shall not exceed three months in a summary trial, the English translation appears to indicate that the sentence shall be for a minimum of three months and not less. Mr. M.C. Pant, learned counsel for the petitioner, would submit that the petitioner had answered the questions only in English and not in Hindi and, since the English translation is erroneous, he is entitled to be awarded marks.

Question No. 175 relates to dishonest misappropriation of property by a carrier and, while the petitioner marked the answer as (d) Criminal Breach of Trust by Carrier, etc, the Commission claims that the answer is (c) Criminal Breach of trust. The question refers to a carrier which is entrusted with the property which is dishonestly misappropriated. Section 407 of the Indian Penal Code relates to Criminal Breach of Trust by carrier, and it does appear that the petitioner's answer of option (d) is correct.

Question No. 182 relates to the punishment for gang rape, and the options given there are (a) Death; (b) Imprisonment for life; (c) Imprisonment for life with fine; and (d) Rigorous imprisonment for not less than twenty years. The petitioner marked the answer as "(c)" i.e. Imprisonment for life with fine; whereas the Commission claims that the answer is "(d)" i.e. Rigorous Imprisonment for not less than twenty years. Section 376(D) provides for a sentence of rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine. While the minimum punishment is rigorous imprisonment for twenty years, the Section also provides for the punishment to be extended for life with fine. It cannot, therefore, be said that the petitioner had wrongly answered the said question. Since the respondents are yet to file their counter affidavits, the opinion expressed in this order is only our prima facie view.

Since the petitioner did not answer one these five questions, and appears to have correctly answered the other four, he would, prima facie, be entitled for five more marks i.e. four marks for the four correct answers. Besides, he would also be entitled to one more mark towards the negative marks of 0.25 each for the four questions he had answered correctly, and which were treated as wrong answers. Adding 5 marks to his 141.75 marks would bring him upto 146.75 which is more than the cut off marks of 145.75 for appearing in the main examination. Suffice it, therefore, to permit the petitioner to submit his application form to appear in the main examination, the last date for which is prescribed as 19.10.2019. The petitioner shall also be permitted to appear in the main examination. Needless to state that his appearance in the main examination shall be subject to further order in this writ petition.

Mr. B.D. Kandpal, learned counsel for the Public Service Commission, requests that he be granted three weeks' time to file a counter affidavit.

Mr. M.C. Pant, learned counsel for the petitioner, express apprehension that the petitioner's application may not be received online. Mr. B.D. Kandpal, learned counsel for the Public Service Commission, would fairly state that it is open to the petitioner to submit a physical copy of his application form to the Public Service Commission, and the same shall be accepted subject to the further orders in this writ petition.

Post this case on 18.11.2019 in the daily list.

Let a certified copy of this order be supplied to the learned counsel for the parties, on payment of the prescribed charges, today itself.