Kishore Kumar vs High Court Of Delhi

,

S.RAVINDRA BHAT, J.",

The Delhi Higher Judicial Service Preliminary Examination was held on 20.05.2018; the Delhi High Court establishment (hereafter “DHCâ€) on,

05.06.2018 declared the result. Before that, it published the model answer key on 22.05.2018 and invited objections/comments. Based on these, the",

revised model key was published on 04.06.2018; based on it, the results were compiled and declared. The petitioner seeks quashing the list of",

shortlisted candidates notified by DHC on 28.08.2018 and further enjoin it to issue a revised Roll number wise result as well as the (fresh) list of the,

qualified candidates in consonance with the modified answer key, and the terms of its advertisement dated 28.12.2017.",

The DHC on 28.11.2017, publicly advertised 11 vacancies in the cadre of Delhi Higher Judicial Services (“DHJSâ€); besides containing",

essential particulars relating to educational qualifications and experience, the advertisements described the three-stage selection process for filling up",

the post as follows:,

(i) Delhi Higher Judicial Service Preliminary Examination (objective type with 25% negative marking) for selection to the main examination; and,

(ii) Delhi Higher Judicial Service Main Examination (Descriptive) for selection of candidates for calling for viva voce.,

The advertisement also described the syllabus for the two tests as follows:,

“The Syllabus for the Preliminary (Objective) Examination shall be as follows:-,

General Knowledge, Current Affairs, English Language and topics on Constitution of India, Evidence Act, Limitation Act, Code of Civil Procedure,",

Criminal Procedure Code, Indian Penal Code, Contract Act, Partnership Act, Arbitration Law, Specific Relief Act, Hindu Marriage Act, Succession",

Law, Transfer of Property Act, Sale of Goods Act and Negotiable Instruments Act.",

The Syllabus for the Main (Descriptive) Examination shall be as follows:-,

General Knowledge, Current Affairs, English Language and topics on Constitution of India, Indian Evidence Act, Limitation Act, Code of Civil",

Procedure; Criminal Procedure Code, Indian Penal Code, Contract Act, Partnership Act, Arbitration Law, Specific Relief Act. Hindu Marriage Act,",

Succession Law, Transfer of Property Act, Sale of Goods Act and Negotiable Instruments Act.â€​",

As stated earlier, the preliminary test was held on 17.05.2018; the model key was published on 22.05.2018. The candidates were provided the",

opportunity to object to the model answers; many did. The revised answer key was issued on 04.06.2018. Based on this revised answer key, the",

results of the preliminary test were compiled and published. The petitioner, a candidate, claims to be aggrieved by what he claims are wrong or",

erroneous questions and wrong answers based on which, the results were declared.According to the petitioner, the roll number wise results so",

declared of the exam conducted on 20.05.2018 and the list of shortlisted candidates published who are enabled to appear in the main examination, are",

utterly arbitrary; he seeks a direction that the select list be quashed.,

The petitioner argues that the deletion of five (05) questions “without assigning any reason compounded by arbitrarily,

awarding one (1) mark each there against to every candidate who appeared in the Preliminary Examination as opposed to only to those who had,

attempted those purportedly ambiguous questions.†It is argued that this action is contrary to the decision in Guru Nanak Dev University v. Saumil,

Garg (2005) 13 SCC 749.,

The petitioner elaborates on the submissions, with specific reference to the “wrong questions†and wrong options provided in the answer keys,",

in support of his argument that the process is arbitrary. The questions, answer keys and the petitioner’s arguments are set out below. The first",

question objected to is No.58, which is as follows (with the answer key) ""'Question no.58. A Professor employed with an unaided private college is",

sexually harassed. She filed a writ petition under Article 226 to trigger the provisions of the Sexual Harassment of Women at Work Place (Prevention,",

Prohibition and Redressal) Act, 2013. The private college resists the writ petition on the ground that it is neither a State nor an instrumentality of the",

State. Here:,

(1) Objection of the private college is maintainable.,

(2) Objection is valid as writ petition is not maintainable against a private person.,

(3) Objection of the private college would be maintainable only if it is able to show public law element in the matter.,

(4) Objection of the private college would be maintainable only if the private college is able to show that there is a private law element in the matter.""",

It is next stated that the DHC furnished wrong answer key to the following question no.24 (culled out from Booklet Series D),

Question no.24. They sat _______him______being fined, they were imprisoned.",

Her answer is______ the point.,

The correct prepositions to be filled in the above sentences in order are:,

(1) beside, besides, beside",

(2) beside, besides, besides",

(3) besides, beside, beside",

(4) beside, beside, besides''",

It is argued that the answer furnished by DHC by the impugned model answer key dated 22.05.2018 is (2) whereas, the correct answer option is",

(1), for the idiopathic phrase is ""beside the point"" instead of"" besides the point"".",

It is submitted that question No. 26 is “vague and deceptive inasmuch as is susceptible of admitting more than one answer keyâ€, and that it",

“evokes a subjective response which is per se impermissibleâ€​ in an objective type examination. The question is as follows:,

''Question no.26. The 'feminization' of teaching and nursing had occurred because such work was seen as an extension of the nurturing work that,

women do within home. Which one of the following best describes this statement?,

(1) An analysis of women's majority in teaching and nursing.,

(2) A description of teaching and nursing profession.,

(3) A compliment to women as nurturers.,

(4) An ironical take on teaching and nursing.''',

The argument made during the hearing was that while the impugned model answer key dated 22.05.2018 stipulated (1) as the correct answer option,",

however, answer options (2), (3), and even (4) are no less plausible.",

As it is an objective examination, the candidates in the likes of the Petitioner do not have the luxury of assigning cogent",

but subjective reasons for his/her choice which, ipso facto, renders this question unsuitable for an objective examination.",

The petitioner next argues that the DHC provided wrong answer keys to question nos. 29 and 30 (culled out from Booklet Series D), i.e.",

''Read the following passage and answer questions from 27to 31:,

They had been camping in this part of the Africa, undergoing exercises to familiarize' themselves of the African war in grassland and small dense",

forests where the rule was fire first and apologize afterwards. In this land of swamps, they live among large mosquitoes that outnumbered them by a",

million to one. There were deaths from malaria. The condition of the white troops was worse, because they fell victim not just to malaria but to",

diarrhea and diseases as well. Many died without defining a shot. """,

Question no.29. ""Fire first and apologize afterwards""",

indicates:,

(1) they don't care for consequences,

(2) their lives would be in danger if they did not fire,

(3) they are unapologetic,

(4) they have to learn to apologize.""",

The petitioner urges that the answer furnished by the DHC, by the model answer key dated 22.05.2018 is (2) whereas, the correct answer option is",

(1), for insofar as the rule ""fire first and apologize afterwards""",

only indicates absence of rule of law and therefore, two hoots to the consequences. Question No. 30 is as follows:",

Question no.30. How did many die without firing a shot?",

(1) they were killed by diseases,

(2) they were killed by their enemies,

(3) they died because of tough terrain,

(4) mosquitoes killed themâ€​,

It is urged that the answer furnished by DHC’s answer key dated 22.05.2018 is (1) whereas, the correct answer option is (3), for insofar as",

the deaths, in general, are attributed to malaria (caused by mosquitoes), but white troops fell victims to diarrhoea and skin diseases as well. Therefore,",

the only correct answer is option (3), i.e. they died because of tough terrain as opposed to (1) per se.",

It is argued that the DHC also adopted the wrong answer key to the following question no.33 (Booklet Series D), namely-",

Read the following passage and answer questions from 32to 36:",

At the end of the twentieth century we are living in a world saturated with music. Sounds accompanying us everywhere, and particularly when we",

are waiting in closed spaces - whether on telephone, on an aircraft or at the hair dresser's. The consumer society seems to consider silence a crime.",

So music has nothing to fear in the twenty-first century. Admittedly it will sound quite different by comparison with the twentieth century. Present day,

world has already been fundamentally revolutionized by electronics, which means that it is already largely independent of the inventive talent and",

technical skill of the artistic individual. """,

Question no.33. According to the author, music in the twenty-first century:",

(1) is more blaring,

(2) is not pleasant,

(3) has become more popular,

(4) is more electronic and less dependent on individual taste.â€​,

The petitioner argues that the answer furnished by DHC through the impugned model answer key dated 22.05.2018 is (4) whereas, the correct",

answer option should be (1), for if the answer to question no.34 ""The consumer society seems to consider sounds silence a crimeâ€​ is option (4), i.e.Â",

satiric comment; and by question no.35, ''The twenty-first century society is characterized as consumeristâ€, i.e. the answer",

option (3) then, by that token, music in the twenty-first century could only be ""more blaring"", in the estimation of the author.",

It is argued that DHC furnished the wrong answer key to question no.66 (Booklet Series D):,

''Question no. 137. When a new party to a suit is added then can the suit qua that party be taken to be instituted from the date of filing of the suit?,

(1) No. The suit is taken as filed by or against a party only when the order of impleadment is made.,

(2) No. The suit is taken as filed by or against a party only from the date of filing of the application for impleadment.,

(3) Yes. It is correct, provided that the court is satisfied that the omission to implead the person was due to a mistake in good faith.",

(4) Yes, provided that when the suit was originally filed, it was filed on behalf of a minor and who after becoming a major pendente lite ratifies the",

filing of the suit from the original date.'',

It is stated that the query pertains to Section 21 of the Limitation Act,1963 and therefore, the correct answer option should be (1) and not (3)",

furnished by the DHC impugned model answer key dated 22.05.2018, for even if it is assumed that the court is satisfied that the omission to implead",

the person was due to a mistake in good faith even then, as per the proviso to Section 21, it shall be deemed to have been instituted on any earlier date",

which, may or may not, necessarily coincide with the original date of filing of the suit. The petitioner also states that question no.40 (Booklet Series D)",

is improperly framed and therefore, ought to have been deleted in the revised answer key dated 04.06.2018 by the DHC namely -",

Question no.40. A power of attorney is presumed to be correct:",

(1) if it is attested by the Oath Commissioner.,

(2) if it is executed before and authenticated by a Notary Public.,

(3) if it is attested by two witnesses.,

(4) if it is registered.""",

The petitioner argues that DHC deemed the above to be a query pertaining to Section 85 of the Evidence Act, 1872 and indicated that option (2) is",

the correct answer, however, overlooked that by virtue of Section 33 (1) (a) read with Section 33 (4) of the Registration Act, 1908 even a registered",

power of attorney is presumed to be correct without further proof when it purports to have been executed before and authenticated by the person or,

court therein mentioned. And since, the query did not limit to a particular statute, the question admits of both the answer keys and therefore, should be",

deleted but marks there for could only be awarded to those candidates who attempted it as opposed to all those who have appeared in the,

examination. The petitioner also argues that similarly, DHC furnished a wrong answer key to the following question no.121 (booklet D), i.e.",

“Question No.121. The power to make laws vests in the Parliament and State legislatures by virtue of which provisions in the Constitution of India?,

(1) Article 245,

(2) Seventh Schedule,

(3) Article 246,

(4) None of the above.""",

The petitioner’s contention is that the option (1) is the correct answer key whereas, the Five Judge Constitution Bench of the Supreme Court",

in Kuldip Nayar v. Union of India, AIR 2006 SC 3127 stated that ''Article 245 generally states that the Parliament, subject to the provisions of the",

Constitution, may make laws for the whole or any part of the territory of India. Article 246 vests in the Parliament ""the exclusive power"" to make laws",

with respect to any of the matters enumerated in List I in the Seventh Schedule (""Union List"", hereafter).""",

It is argued, therefore, that the correct option ought to be (3) instead of (1) expressed in the impugned answer key dated 22.05.2018. Lastly, it is",

argued that question nos.114, 115 and 116 (of the Booklet Series D) are out of syllabus and ought to have been excluded /deleted from evaluation.",

The DHC states that on 22.05.2018, the model answer key was uploaded on its website. It expressly noted provided that “If any candidate has",

any objections regarding the answer(s) mentioned in the Answer Keys, he/she may send objections through online mode on the link provided on the",

website of this Court, i.e. http://apply career.co.in/dhc/dhjse2017/HighCourt2018DHJSE Answerkey.aspx within 5 days from the date of this Notice,",

i.e. upto 27.05.2018. Objections received thereafter shall not be entertained. Any representation regarding objections other than online mode will not,

be entertained. The Link shall be available from 22.05.2018 (5.00 PM) till 27.05.2018 (11.59 PM)â€. In this regard, it is urged that the petitioner not",

only failed to submit any objection(s) to the Model Answer Key within the prescribed time period, but also chose not to oppose them till approaching",

this court. Moreover, DHC states it received objections from other candidates during the permissible time for filing the same and thereafter scrutinized",

all the objections received during the said period. It deleted five questions after having received and examined every objection in the time permitted for,

it. The DHC argues that the Model Answer Key, published by it, thus expressly provided the opportunity to all the eligible candidates to object to the",

answers.,

It is urged that the practice of inviting objections to the questions has been in place for a considerable period and it has proved to be a successful,

endeavour in as much as it provides to all the eligible candidates, an opportunity to place on record their rationale of attempting any given question.",

Regardless of the number of objections received, the DHC examines the merit of each challenge before revising, if so required, the Model Answer",

Key. It was only after the complete satisfaction of the DHC that the Model Answer Key was updated and the Revised Answer Key was uploaded on,

04.06.2018 on its website.,

Objection

to

questions

from

Question

Paper Set",Response to the objections

58.,"· The question raises the grievance that the DHC

while deleting the said question, awarded one mark

each to every candidate instead of to only those who

attempted the same.

· It is submitted that such a contention is

completely misplaced in as much as, presumably the

Petitioner, is aware that the present examination

carries 25% negative marking for every incorrect

answer.

· Therefore, a candidate who has not attempted

the same cannot by any stretch be made to suffer

for deciding not to attempt a question that it would

be uncertain about rather than taking a chance to

answer it.

24.,"· This question pertains to the English subject.

· It is provided that “English Language†was

also a criteria on which the candidates were to be

tested.

· A bare reading of the question itself would

demonstrate that the test herein was to find out the

correct „proposition‟ in the given statement as

opposed to the most appropriate idiomatic phrase.

· The petitioner has failed to appreciate that

English grammar must be differentiated from

conversational English.

· It is submitted that the word „beside‟ means

„by the sideof‟, „next to‟, or „irrelevant to

the issue‟. Further, for the correct usage of

„beside‟ in a sentence, it would necessarily

require either a physical positioning or a context in

the same sentence from which its irrelevancy is

depicted.

· It is stated that the third statement in the

question is independent of the first and the second

statement and does not provide any context against

which its relevancy could be judged. Moreover, the

third statement does not include any connotation of

physical positioning and further lacks any sort of

context.

· Furthermore, „besides‟ signifies various

meanings such as „other than‟, „together with‟,

„as well as‟, in addition to‟, „moreover‟ etc.,

which has wider connotations and does not require a

„context‟ to test its relevancy.

· Therefore, the most appropriate „proposition‟

would be „besides‟ and not „beside‟.

· The correct answer would also show the clarity

of mind and thought process.

26.,"· As submitted above, the examination instructions

seek the „best‟ description of the given options.

· Pertinently, the passage and question discusses

influx of women in teaching and nursing, thereby

making it clear that the subject matter of the

discussion is not the professions of teaching and

nursing, rather an inquiry into the historical reason

for the influx of large number of women in those

professions.

· Like question number 24, the correct answer

would also show the clarity of mind and thought

process.

· Therefore, the suggestion that all the options to

this question were plausible cannot be sustained and

must be rejected.

29.,"· It is submitted that the petitioner‟s suggestion

that the correct answer was “they don‟t care for

consequencesâ€​ has no logical basis whatsoever.

· Further, a reading of the very first line of the

passage highlights that „they‟ referred to therein

were outsiders, who were undergoing training to

„familiarize‟ themselves in a particular part of

Africa, during the African war in „grassland and

small dense forest‟.

· Therefore, the contention of the petitioner is

completely misplaced and accordingly, the only

correct option was that “their lives would be in

danger if they did not fire†in as much as „they‟

are clearly in a hostile environment.

30.,"· Petitioner‟s contention is that the many died on

account of “tough terrainâ€​, which is untenable in

as much as the passage clearly mentions that

“The condition of the white troops was worse,

because they fell victim not just to malaria but to

diarrhea and diseases as well..†which were

afflicted on them and resultantly, they died.

· Therefore, the most appropriate answer would

be that “they were killed by diseasesâ€​.

33.,"· The Petitioner‟s reasoning is flawed even in this

case in as much as the petitioner asserts that the

correct answer would be that the music in the

twenty-first century “is more blaringâ€​.

· It is submitted that perusal of the last line of the

passage in question justifies that the correct answer

is the one mentioned on the Revised Answer Key

by the Respondent.

· The last sentence of the said passage is

indicative of direct evidence of the stand taken by

the author and leaves no room for doubt.

137.,"· The petitioner has further erred to assert that the

correct answer to the present question is option (1)

and not what the Revised Answer Key suggested

(i.e. option (3)).

· It is submitted that the question is plainly worded

and inquires about the „power‟ of the Court to

declare the institution of the suit qua a new party to

the suit to be from the date of filing of the suit.

· It is further stated that a reading of the proviso

to Section 21 of the Limitation Act, 1963 is evidence

of such authority that vests in the Court.

· Moreover, the use of the word „only‟ in the

option (1) itself demonstrates that the same could

not be legally tenable in as much as the proviso to

Section 21 itself qualifies the bar suggested in option

(1).

· Therefore, the answer in the Revised Answer

Key suffers from no infirmity.

40.,"· The challenge to this question is devoid of any

legal basis and deserves to be rejected as such.

· A bare reading of Section 85 (titled as

“presumption as to powers-of attorney†under

the Chapter-Presumptions as to Documents) of the

Evidence Act, 1872 indicates that a power of

attorney is presumed to be correct if it is executed

before and authenticated by a Notary Public.

· Moreover, it is reiterated that the Petitioner has

placed reliance on the provisions of the Registration

Act, 1908 while being fully aware that the

Registration Act, 1908 did not form part of the

syllabus of the Examination, whereas the Evidence

Act, 1872 was expressly included therein.

121.,"· The Petitioner further contends that the answer

to the present question is option (3) i.e. Article 246

and not Article 245 (i.e. option (1)).

· It is submitted that the question inquires the

provision under which “the power to make laws

vests in the Parliament and the State Legislaturesâ€​.

· Article 245, which falls under the heading

“Distribution of Legislative Powers†clearly

provides that “Parliament may make laws for the

whole or any part of the territory of India, and the

Legislature of a State may make laws for the whole

or any part of the Stateâ€​.

· Additionally, the reliance placed by the petitioner

upon the Constitutional judgment of the Hon‟ble

Supreme Court of India in Kuldeep Nayar v. Union

of India does not substantiate the contention of the

Petitioner because the quoted sentence from the

said judgment also provides that “Article 245

generally states that the Parliament, subject to the

provisions of Constitution, may make laws for the

whole or any part of the territory of India. Article

246 vests in the Parliament “the exclusive

power†to make laws with respect to any of the

matters enumerated in List I in the Seventh

Schedule…†The sentence is being read out of

context.

· The question under challenge inquired the

provision under which “the Parliament and State

Legislatures have the power to make law†and is

clearly devoid of the word “exclusive†as

provided for in the referred judgment by the

Petitioner. Moreover, the very heading of Article

246 is “Subject matter of laws made by

Parliament and the Legislatures of Statesâ€

whereas „subject matter‟ is nowhere mentioned

in the challenged questions, rather it is the

„power‟ which is being questioned.

· Therefore, the suggestion that Article 246 would

be the correct answer is devoid of any merit and

must be rejected.

114-116.,"· The petitioner has further challenged these

questions on the ground that the same are “out of

syllabusâ€​.

· However, since the Petitioner has failed to

produce these of reference, questions in the present

petition, for ease of reference, they are produced as

follows :

· Q.No.114. Probate of a Will is compulsory in

Delhi.

· Q.No.115. An ex-parte Letters of

Administration granted with respect to a Will can be

revoked.

· Q.No.116. Probate or Letters of Administration

granted by the District Judge in one State will have

operation throughout the country with respect to all

properties wherever situated.

· The syllabus for the Preliminary Examination is

as follows : PART-II …(3)…The Preliminary

Examination (Objective Type) shall carry 150 marks

and Syllabus for Preliminary Examination

(Objective) shall comprise General Knowledge

Current Affairs, English Language and Topics on

Constitution of India, Evidence Act, Limitation Act

Code of Civil Procedure, Criminal ProcedureC ode,

Indian Penal Code, Contract Act, Partnership Act

Arbitration Act, Specific Relief Act, Hindu Marriage

Act, Succession Law, Transfer of Property Act,

Sale of Goods Act and Negotiable Instrument

Act….

· The syllabus expressly provides for

„Succession Law‟ and therefore, the present

challenge to these questions, viz. the same being

“out of syllabusâ€​ deserves to be rejected.

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.,

Keeping the above principles in mind, this court is of the opinion that the petitioner’s argument that the objections to five questions should have",

been treated differently, and that irrespective of whether candidates had attempted them, all should not have been awarded grace marks. This court",

finds that such an argument is insubstantial; to award marks only to those who attempt the question, and not to those who do not, may also expose the",

respondents to the odium of arbitrariness, because it could then arguably be contended â€" by those who do not attempt the questions, that they did not",

do so, because of ambiguity and more importantly, the potential negative marking. In these circumstances, the approach (of awarding marks uniformly",

to all) is reasonable.,

As far as the attack to the answer keys on the merits goes, possibly, the court may on a close analysis conclude that on one or two questions, the",

answer keys were inapt. However, this has to be weighed in with the fact that the court exercises judicial review jurisdiction. Absent demonstrably",

facial arbitrariness, its approach should be circumspect and deferential (to the examining body). In this case, the questions for which answer keys",

were published that are sought to be disputed do not relate to legal issues- except regarding the one on Constitution of India (i.e. source of law,

making).The rest relate to language usage, propositions and comprehension. This court also is of the considered view that the explanation given for",

adopting the answer keys, by the DHC establishment is not per se arbitrary or unreasonable. The court cannot don the hat of a primary decision",

maker having regard to the overall circumstances and facts of the case.,

In view of the foregoing discussion, it is held that no relief can be granted in these proceedings; the writ petition is dismissed as unmerited. No",

costs.,

Dasti under the signatures of the Court Master.,