- (1.) In these bunch of writ petitions, we took Writ Petition No.51811 of 2013 as the lead petition and, on 26.09.2013, we passed a detailed order, which not only elucidates the controversy involved in these petitions but also seeks to partially resolve the same. As the said order is self-explanatory, it would be useful for us to reproduce the same, as under: "Order dated 26.09.2013: By this petition, which we take up as a leading petition, amongst a bunch of writ petitions with same or similar prayers, the petitioners have assailed the select list dated 09.09.2013 notified/ published by the U.P. Public Service Commission (hereinafter referred to as the Commission) of U.P. Judicial Service, Civil Judge (Junior Division) Preliminary Examination 2013 with a prayer to direct the respondents to permit the petitioners to appear in the U.P. Judicial Service, Civil Judge (Junior Division) Mains Examination, 2013, which are scheduled to be held from 28.09.2013 up to 30th September 2013. We have heard learned counsel for the petitioners appearing in various petitions dealing with the same issue and Sri A.K. Sinha, who has appeared on behalf of the Commission. The brief facts are that the Commission issued an advertisement inviting applications for U.P. Judicial Service, Civil Judge (Junior Division) Examination, 2013, which is to be conducted in two parts-- preliminary and mains. According to the petitioners, they applied pursuant to the advertisement and appeared in the preliminary examination. The preliminary examination comprises of two papers. The first paper is of General Studies comprising 150 questions of 1 mark each totaling 150 marks and the second paper is of Law comprising 150 questions of 2 marks each totaling 300 marks. Accordingly, the select list of candidates, short listed for the Main Examination, is prepared on the basis of total marks obtained in both papers that is, out of 450 marks. According to the petitioners, which has not been disputed by the learned counsel for the Commission, the Cut Off Marks--category-wise--are as follows: 305 for the General; 303 for OBC; 270 for S.C.; 224 for S.T. and 291 for Female. It is not disputed that the question-books for the preliminary examination were in four series i.e. A, B, C, and D. All the four series of question papers carried the same questions but in the different serial order which, according the learned counsel for the Commission, is a practice usually adopted by examining bodies to prevent use of unfair means. All questions are objective type with four alternative answers for each question. A candidate is required to select one of the four answers. The answers are to be rendered in OMR sheets, which is provided to the candidates at the examination center. The filled OMR sheet is to be submitted by the candidate at the examination center for evaluation. As per the procedure, before declaration of the result i.e. the select list, the key answers to the questions are uploaded, and thereby notified, in the website of the Commission so as to enable the candidates to submit their objections, if any, to the answers displayed in the web site. According to the petitioners, which has not been disputed by the learned counsel for the Commission, the objections are placed before an expert body i.e. a committee which consider the objections and, thereafter, decides either to correct the answer, by changing the option notified, or to delete the question itself from the zone of evaluation. It is the case of the Commission's counsel that where a decision is taken to delete a question from the zone of evaluation its assigned marks are evenly distributed to the remaining questions, which often results in awarding of marks in decimals. If the decimal count obtained is higher than 0.5 it is rounded off to the next higher digit, but where it is 0.5 or less it is rounded off to the next lower digit. Relying on the aforesaid procedure, the learned counsel for the Commission has sought to explain the award of odd marks, particularly, in those cases where a challenge has been made by some of the petitioners, based on self evaluation, that there was no possibility of receiving odd marks, as awarded to them. According to the petitioners on 20.08.2013, the Commission published key answers to the questions on its website and invited objections, fixing 27.08.2013 as the last date. It is the case of the petitioners that there were several questions where either the key answers were not correct or the question framed was such where no answer provided, by way of option, was correct or there were multiple possible answers, by way of options, rendering evaluation meaningless. It is further the case of the petitioners that despite several objections to such questions, by a multitude of candidates, the Commission did not publish the key answers finalized after consideration of the objections, and straight away published the select list. It is the case of the petitioners that on account of faulty questions or faulty answers the final select list has been materially affected thereby affecting selection on merit, which is the primary concern for holding an open competitive examination. It has been submitted that in view of the principle of law laid down by the apex court in the case of Abhijit Sen and others Vs. State of U.P. and others, 1984 2 SCC 319; Manish Ujwal and others Vs. Maharishi Dayanand Saraswati University and others, 2005 13 SCC 744; and Kanpur University through Vice-Chancellor and others Vs. Samir Gupta and others, 1983 4 SCC 309, this court has ample power to scrutinize the questions as well as the answers so as to infer whether there has been an error on the face of record or not and to take remedial action. Various questions and their respective answers provided as key answers, published in the website, were shown to the Court on earlier date, in various writ petitions, for the purpose of demonstrating that either the questions were faulty or the answers provided to those questions were not correct. We, accordingly, directed Sri A.K. Sinha, learned counsel for the Commission, to seek instructions and provide to the Court the altered key answers, which were adopted by the Commission for evaluating the OMR sheets, after receipt of objection from the candidates, so as to enable the Court to satisfy itself whether the alleged mistake in the question-answer stood rectified or not. Pursuant to our direction, Sri A.K. Sinha supplied the required information in sealed cover from which we find that in Law Paper as many as six key answers were changed and two questions were deleted whereas in the General Knowledge paper five key answers were changed and four questions were deleted. In the report, at two places, it was mentioned that the question "may be deleted" which, according to Sri A.K. Sinha, should be treated as having been deleted, therefore, we have already put them in the tally of deleted questions. After receipt of the above information, the learned counsel for the respective petitioners were informed of the changed position in key answers and they were, accordingly, requested to confine their arguments to such questions only where the answers were either not changed or the answers, so changed, were not correct as also to such questions where the question itself was such, which required deletion. The learned counsel for the petitioners, accordingly, drew the attention of the Court to such questions. It would, therefore, be useful for us to enumerate those questions and deal with them separately. For convenience, we are discussing the questions subject-wise, as they figured in "A-Series" Paper. The details are being provided herein below: LAW PAPER Question No.10 in "A-Series" of Law Paper. "10. Where a compromise was arrived between parties to a suit by playing fraud, misrepresentation or mistake and a decree was passed with the consent of the parties, then the suffering party may select which one of the following alternatives for setting aside such decree? (a) Through appeal (b) Through revision (c) Through review (d) Through a second suit" According to the Commission, option "d" was the correct answer. The submission of the learned counsel for the petitioners is that the said option was not the correct answer, inasmuch as, it fails to take into consideration Order 23 Rule 3A of the Civil Procedure Code, which was inserted in the Code with effect from 01.02.1977, which reads as follows: "3-A. The bar to suit- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." Without expressing any authoritative opinion with regards to maintainability of a suit in view of the bar under Order 23 Rule 3A C.P.C., suffice it to say that the law on the point is in a developing stage and there may be conflicting view points taking into account different fact situations. However, for a candidate who is still to be trained in the field of law, the answer "through a second suit" is definitely not the correct answer in view of the statutory provision i.e. Order 23 Rule 3-A CPC as well as the apex court decision in the case of Pushpa Devi Bhagat Vs. Rajendra, 2006 5 SCC 566. Although, there are few authorities which may hold that a suit would be maintainable where there is a contest on the question whether there was a compromise or not and in such a case it could be said that there was no consent decree, therefore, even the bar under section 96(3) CPC would have no application (vide Kishun Vs. Bihari, 2005 6 SCC 300), but generally speaking option (d), cannot be accepted as the correct answer. Ordinarily in objective type questions when answers are provided by way of option, the correct answer should not be debatable that is, it should be without doubt so that there is no scope for explanation. In our view, we find that this Question No.10 in "A series" of law paper was liable to be deleted and in any case the option (d) cannot be accepted as the correct answer in view of Order 23, Rule 3-A CPC. Question No.31 in "A-Series" of Law Paper. "31. Under Section 41 of Criminal Procedure Code, the power of police to arrest a person (a) covers all cases (b) is limited to cases of mere suspicion (c) is limited to cases of reasonable suspicion (d) does not cover cases of Army deserters" According to the Commission, the correct answer is "c". The submission of the learned counsel for the petitioners is that the question itself is ambiguous as also the key answer inasmuch as the powers of police to arrest a person under Section 41 CrPC covers all cognizable offences and thus option (a) would be the right answer, while in view of the words used in Section 41 (1) (a) Cr.P.C., even option (b) could the correct answer and similarly in view of the words used in Section 41 (1) (b), even option (c) could be the correct answer. Having examined the question carefully, we are of the view that the option (c) would not be the correct answer as the power under Section 41 is not limited to the cases of reasonable suspicion. Whether the police has power to arrest an Army deserter or not, we are unable to express any opinion, at this stage, in absence of assistance on that count. However, in any case, the option (c) cannot be countenanced. If option (d) is not the correct answer then the question is liable to be deleted. Question No.45 in "A-Series" of Law Paper. "45. Which one of the following is not a secondary evidence? (a) Copies made from the original by mechanical process (b) Copies made from or compared with the original (c) Counterparts of documents (d) Lithography" According to the Commission, the correction option is (d). Learned counsel for the petitioners placed before us Section 62 of the Indian Evidence Act, which reads as follows:- "62. Primary evidence.- Primary evidence means the documents itself produced for in the inspection of the Court. Explanation 1.- Where a document is executed in several parts, which part is primary evidence of the document: Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original." Relying on Explanation-1, the learned counsel for the petitioners submitted that where a document is executed in several parts, each part is primary evidence of the document and where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. The learned counsel for the petitioners thus pointed out that more than one option was correct and, therefore, this Question No.45 was liable to be deleted. We find substance in the argument of the learned counsel for the petitioners as the aforesaid position is clear on a plain reading of Explanation 1 of Section 62 of the Evidence Act. Thus, question no.45 ought to have been deleted. Question No.100 in "A-Series" of Law Paper. "100. Does United Nations, as an organization, has the capacity to bring an international claim against a State in the International Court of Justice? (a) Yes, because United Nations is also deemed to be a State (b) No, because International Court of Justice is open to the State Parties in the State only (c) Yes, because United Nations has a legal personality. (d) None of the above is correct" According to the Commission, the correct option is (a). Whereas, according to the learned counsel for the petitioners, the correct option should be (b) as according to Article 34 of Chapter II of the Charter of the United Nations only States may be parties in cases before the International Court of Justice and since United Nations is not a State, therefore, it cannot bring a claim against the State in the International Court of Justice. We are not in position to give any conclusive opinion with regards to the said question in absence of any authoritative material provided to us. However, this is a matter which may be examined and reviewed by the expert body. Question No.122 in "A-Series" of Law Paper. "122. The binding force behind the Directive Principles of State Policy is (a) Public Opinion (b) Government (c) Constitution (d) Administration" According to the Commission, the correct answer is option (a). The learned counsel for the petitioners submitted that the Directive Principles of State Policy may not have binding force at all, but if they have any force it is because of the Constitution and not the Public Opinion, therefore, the correct option ought to have been (c) and in any case the option (a) cannot be the correct answer. We find substance in the argument of the learned counsel for the petitioners because if there is any force behind the Directive Principles of State Policy it is because of the Constitution. In any case, we feel that the question itself is ambiguous and the expert committee may consider deleting the same. Question No.99 in "A-Series" of Law Paper. "99. What was the 'theme' for the world Human Rights Day, 2012? (a) All Human Rights for all. (b) Women's Right as Human Right. (c) Inclusion and the right to participation in public life. (d) Human Rights as People's Right." According to the Commission, the right answer for the aforesaid is option (a). The submission of the learned counsel for the petitioners is that the original answer given in the website to Question No.99 was option (c) but it appears that on objection by some candidates it was changed to (a). Before us, several print out obtained from various websites have been produced to demonstrate that Human Rights Day, 2012 was for inclusion and the right to participation in public life and, therefore, the learned counsel for the petitioners submitted that the original answer i.e. option (c) was correct whereas the changed answer i.e. option (a) is incorrect. We are not in a position to authoritatively render our opinion to aforesaid question but it, prima facie, appears to us from the print out produced by the learned counsel for the petitioners that the original answer i.e. option (c) was correct and that the changed answer is not correct. However, we leave it open to the expert committee to review the same. Question No.103 in "A-Series" of Law Paper. "103. What is the number of States with 'nuclear capabilities' as listed in Annexure 2 of C.T.B.T. (Comprehensive Nuclear Test Ban Treaty) ? (a) 8 States (b) 44 States (c) 15 States (d) 35 States" According to the Commission, the answer originally was option (b), which was subsequently changed to option (a) on the basis of expert opinion after receiving objection. The submission of the learned counsel for the petitioners is that this change is not correct and the original answer option (b) is correct because there are 44 States listed in Annexure 2 of C.T.B.T. (Comprehensive Nuclear Test Ban Treaty). In order to substantiate the aforesaid submission, the learned counsel for the petitioners produced before us various print out from the websites of the U.S. Department of State--Diplomacy in Action, disclosing total number of States listed in Annexure 2 of C.T.B.T as 44 whereas 8 out of those states have not signed CTBT. We are not in a position, at this stage, to give any conclusive pronouncement on the aforesaid position, however, prima facie, from the material produced before us we are satisfied that this answer also requires review by the expert committee. GENERAL KNOWLEDGE PAPER Question No.16 in "A-Series" of General Knowledge Paper. "16. Most of the production of Natural Gas in India comes from (a) Andhra Pradesh Coast (b) Gujarat Coast (c) Bombay High (d) Tamil Nadu Coast" According to the Commission, the correct answer is option (a). The submission of the learned counsel for the petitioner is that as per the website information provided by the Ministry of Petroleum and Natural Gas, Bombay High is the largest purchaser of natural gas in India, therefore, the answer i.e. option (a) is not correct. To substantiate the aforesaid contention, the learned counsel for the petitioners, vide Annexure 9 in writ petition no.51422 of 2013, has enclosed various material. We find that, prima facie, there is some substance in the submission of the learned counsel for the petitioners with regards to the aforesaid position. However, in absence of any authoritative document, we are not in a position to render any conclusive opinion in that regard but considering the material produced before us, we find, prima facie, that this aspect also requires to be examined by the expert body by way of review. Question No.72 in "A-Series" of General Knowledge Paper. "72. Who is authorised to issue coins in India ? a) RBI (b) SBI (c) Ministry of Finance (d) None of the above According to the Commission, initially correct option uploaded in the website was option (c) i.e. Ministry of Finance, which, upon objection by candidates, was changed to option (a) i.e. RBI. Learned counsel for the petitioners submitted that under the Indian Coinage Act, 1906, vide Section 6 thereof, coins may be coined at the Mint for issue under the authority of the Central Government, of such denominations not higher than one hundred rupees, of such dimensions and designs, and of such metals or of mixed metals of such composition as the Central Government may, by notification in the official Gazette, determine. Court has been informed that no coin of a denomination higher than rupees hundred has been issued, therefore, coins can only be issued under the authority of the Finance Ministry and not by the RBI and, as such, the option (c) was the correct and it was wrongly changed to option (a). We find, prima facie, substance in the submission of the learned counsel for the petitioners in this regard. However, it is for the expert committee to examine the provisions of law and come to a definite conclusion in this regard. Question No.76 in "A-Series" of General Knowledge Paper. "76. Which two countries signed agreement for the modernization of Indian Railways ? (a) India and Belgium (b) India and China (c) U.S.A. And India (d) Russia and India" According to the Commission, the correct answer is option (a). The learned counsel for the petitioners, relying on certain reports, submitted that there had been an agreement between Indian and China in respect of exchange of technical know how for the Railways but there has never been any agreement between India and Belgium, therefore, option (a) cannot be correct. We are not in a position to express any authoritative opinion in that regard, particularly, in absence of any authoritative material placed by the learned counsel for the petitioners. However, we feel that this a matter which may require reconsideration by the expert body. Question No.133 in "A-Series" of General Knowledge Paper. "133. Which one of the following is used in making bullet proof materials ? (a) Polyvinyl chloride (b) Polycarbonate (c) Polyethylene (d) Polyamide" According to the Commission, the correct answer is option (b). The submission of the learned counsel for the petitioner is that Polyamide is also a substance for making bullet proof material. Certain printout obtained from website has been brought to our notice to suggest that Polyamide is also used for making bullet proof material. The submission of the learned counsel for the petitioner is that since Polyamide is also used for making bullet proof material there was no more than one correct answer, hence such question ought to have been deleted. We are not in a position, at this stage, to render any authoritative pronouncement on the aforesaid subject in absence of authoritative material or scientific advice. We are, however, of the view, on the basis of the material provided by the learned counsel for the petitioners, that there appears some substance in the submission of learned counsel for the petitioner and, therefore, it may be reviewed by the expert body. At this stage, we may observe that certain other questions were also placed before us so as to dispute the authenticity of their answers which, upon, prima facie, assessment, were not found worthy of our attention, we, therefore, do not consider it necessary to discuss them in our order. Further, there were questions which, according to the learned counsel for the petitioners, were wrongly deleted. However, we are of the view that as these questions were deleted upon expert advice and their marks were distributed across the board to the remaining questions it may not materially affect the result and even if it does, the opinion of the expert body in favour of deletion should be respected. In view of our detailed examination of the disputed questions, we are, prima facie, satisfied that on account of faulty questions or their answers, the final select list declared by the Commission require review. We are satisfied that the Commission requires to re-examine those questions with a view, either, to delete the same from the zone of consideration or to review the answer provided to those questions with the aid of an expert body. We, therefore, direct the Commission to appoint an expert body of such number of members, as it may deem fit or prescribed by the Regulations, if any, in this regard, who are well versed with the subject concerned, having good credentials, within a period of one week from today, for doing the needful exercise of the reviewing the questions, including their answers, as enumerated herein above. The expert body, so constituted, will review the questions that have been noticed by us, in the light of the observations made in this order, and would submit its report along with material in support thereof, within one week from the date of its constitution i.e. on 10.10.2013. In view of the fact and circumstances narrated above, as there is high probability that the final select list may have to be altered the holding of the Mains Examination, before completion of the above exercise, would be an exercise in futility. We, therefore, direct that till further orders of this Court, the Mains Examination of U.P. Judicial Service, Civil Judge, (Junior Division), 2013 scheduled to be held from 28.09.2013 to 30.09.2013 will not be held and a notice to that effect will be published by the Publish Service Commission in newspapers as well as by uploading in the website. List on 10.10.2013 along with other connected petitions."
(2.) Pursuant to our order dated 26.09.2013, a fresh expert body was constituted, which submitted its report on 9.10.2013. The report was produced before us in sealed cover on 10.10.2013. As no decision was taken by the Commission on the report so submitted, we directed the matter to be taken up on 28.10.2013. On 28.10.2013, a short affidavit dated 27.10.2013 was filed on behalf of the Commission wherein, in paragraph 6 thereof, it was stated that the Commission convened a meeting on 24.10.2013 and took fresh decision as per the expert report by deleting 07 questions in total in law and 02 questions in General Knowledge. As it was not clear whether the deletions reported in the affidavit would be inclusive of the deletions made earlier, we, on 28.10.2013, passed the following order: "Order dated 28.10.2013 A short counter affidavit filed today, is taken on record. In paragraph no.6 of the counter affidavit, it is stated that the Commission has convened a meeting on 24.10.2013 in which the sealed cover of the expert opinion was opened and a fresh decision was taken, in the light of the expert opinion, by deleting seven questions in Law Paper and two questions in General Knowledge. The said expert opinion has been produced before us in sealed cover. On consideration of the entire material, we are of the view that the affidavit filed on behalf of the Commission is lacking in essential particulars, which are enumerated herein below:- 1. In our earlier order, we had noticed that the Commission deleted two questions in Law Paper and four questions in General Knowledge. There is no averment in the affidavit whether those deletions still stand, in addition to the further deletion reported in the affidavit. The averment in this regard should have been made in the affidavit. 2. In our earlier order, with respect to the law paper, we had discussed objections to as many as seven questions. Out of seven questions, we had recommended for the deletion of the question no.10, 31, 45 and 122. However, in respect of question nos.99, 100 and 103, we had asked the Commission to get fresh opinion from the expert. The expert committee report reveals that answer of question no.99 of the Law Paper has been proposed to be changed from "a" to "c". The answer of question no.103 of the Law Paper has been proposed to be changed from "a" to "b". The answer of question no.100 of the Law Paper has been proposed to be changed from "c" to "b". Likewise, the answer of question no.16 of the General Knowledge has been proposed to be changed from "a" to "c". The answer of question nos.72 and 76 of the General? Knowledge have been maintained whereas the question no.133 of the General Knowledge has been deleted. There is nothing in the Resolution passed in the meeting dated 24.10.2013 so as to indicate as to why the proposed changed answers were not accepted and instead the said questions were deleted. If the answer suggested by the Expert Committee has been substantiated by material and there is no contrary material on record then why those questions were deleted should be borne out from the affidavit of the Commission. We are, therefore, of the view that proper exercise have not been undertaken by the Commission while taking the decision. In view of the above, we direct the Commission to take a fresh decision in the matter and file affidavit making specific averments. Such exercise be made by 13.11.2013. List on 13.11.2013."
(3.) In pursuance of our order dated 28.10.2013, on 13.11.2013, on behalf of the Commission, affidavit dated 13.11.2013 was filed. In this affidavit it was clarified that before declaration of results the Commission, after inviting objections and obtaining expert report thereupon, had taken a decision to delete 2 questions in law paper and 4 questions in General Knowledge paper. Thereafter, pursuant to our order dated 26.09.2013, upon obtaining fresh expert report, 7 questions in law paper including 4 questions which we, by our order dated 26.09.2013, had suggested for deletion, were deleted along with 2 more questions in the General Knowledge paper. In paragraph 3 of the affidavit it was submitted that the deletion made after the fresh expert report was in addition to the deletions earlier made by the Commission. In the affidavit it was submitted that the decision to delete three questions in the law paper i.e. 99, 100 (incorrectly typed as 11) and 103 was taken to avoid further controversy as there were contradictory expert reports. Likewise, question no.16 in the General knowledge paper was deleted for there being contradictory expert reports. Whereas question nos.72 and 76 of the General Knowledge paper were maintained as they found support from the second report as well, though question no. 133 was deleted on the basis of the subsequent expert report.;