Gyanendra Kumar Jha And Others vs State Of U P And Others

Court No. - 36

Case :- WRIT - A No. - 62711 of 2015 Petitioner :- Gyanendra Kumar Jha And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.

Hon'ble Mrs. Sunita Agarwal,J.

The lawyers are abstaining from judicial work. A request has been made by the petitioner no. 1 namely Sri Gyanendra Kumar Jha son of Sri Ramesh Chandra Jha (in person) that the present writ petition may be taken up as he is facing lot of inconvenience on account of the pendency of the matter. On the said request being made, learned Chief Standing Counsel of the High Court, Allahabad was requested to send a Standing Counsel to assist the Court who has graciously sent a Standing Counsel to appear on behalf of the respondents.

Heard Sri Gyanendra Kumar Jha (in person) appearing on his behalf and on behalf of the petitioner nos. 2 and 3 and learned Standing Counsel for the State respondent nos. 1 to 3.

For the limited prayer made by the petitioner during the course of arguments, no notice is required to be issued to the private respondent nos. 4 to 13, who were selected in the final result declared on 16th July, 2015, inasmuch as, the prayer being made by the petitioners would not have any bearing on the final select list or selection of private respondent nos. 4 to 13.

The petitioner seeks to press only prayer no. (b) of the prayer clause of the writ petition directing the respondents to re-evaluate the OMR sheets of the main written examination only with regard to the petitioners herein (three in number) by making correction in the key answers of the disputed question and declare their result for selection on the post of Constable and other equivalent posts Direct Recruitment-2013.

The relevant facts in brief are that the petitioners had applied against the advertisement dated 14.5.2013 issued by the U.P. Police Recruitment and Promotion Board, Lucknow for selection to the post of Constable and equivalent posts, Direct Recruitment-2013.

The challenge to their result declared on 16.7.2015 is on the ground that the key answer of question no. '59' of the model answer booklet prepared by the Police Recruitment Board, is incorrect. The objections taken by the petitioners with regard to the correctness of the key answer showing option no. 'B' as correct has been rejected by the Committee constituted by the Board to re-evaluate the answer key, which fact is evident from the averments in paragraph '6' of the counter affidavit.

The petitioners have made a categorical statement in paragraph '14' of the writ petition with regard to the cut off marks of both General and OBC category and in paragraph '15' that the OMR Sheets of the petitioners were evaluated by the Board and marks were not assigned to question no. '59' (carrying different number in their answer booklets). The Police Board has treated option no. 'C' (Carbohydrate) as correct answer, whereas the petitioners have given option no. 'B' (Fat)( वसा) as the correct answer.

In paragraph '16' of the writ petition, it is contended that the petitioner no. 3 had raised objection on 28.12.2014 On-line at the official website of the Police Board with regard to key answer of question no. '59' of master answer booklet of the Police Board including other questions. A copy of the objection filed by the petitioner no. 3 has been appended as Annexure '9' to the writ petition.

In paragraph '18' of the writ petition, a categorical statement has been made that the answer feeded by the Police Board to question no. '59' of the model answer booklet i.e. key answer is incorrect which has resulted in non-selection of three petitioners herein.

The reply to the aforesaid paragraphs of the writ petition has been given in paragraph '6' of the counter affidavit sworn by the Deputy Superintendent of Police, Police Recruitment and Promotion Board, U.P., Lucknow, wherein it is admitted that the petitioner no. 3 namely Sri Ravindra Rathor having Roll No. “2218400” had submitted his objections to answers of question nos. '42' and '60' of the master question booklet, however, the aforesaid objection of the petitioner was not found to be correct by the duly constituted Committee.

It has further been stated that the duly constituted Committee after scrutinizing the objections of the candidates in regard to the anomalies found in the questions and options of answers to the said questions had cancelled five questions of the main written examination and the answer books of the candidates were evaluated, accordingly, considering the Point No. (f) of Parishisht-3 of U.P. Police Constable and Head Constables Services (3rd Amendment), Rules, 2013, which relates to process of written examination. It is further stated that the answer books of all the candidates have been evaluated in accordance with law under the prescribed procedure and they have been awarded appropriate marks in which the petitioners are also included, there has been no discrimination in the matter of evaluation of answer script.

Reply to paragraph '6' of the counter affidavit is in paragraph '5' of the rejoinder affidavit, which has been served on the learned Standing Counsel. It is reiterated therein that three petitioners had opted question no. '59' (of the master question booklet) and the answer given by them option 'B' which is “Fat” (वसा), is the correct answer. The On-line objection taken by the petitioner no. 3 to the incorrect option/answer 'C' (Carbohydrate) included in the answer key has not been duly adverted to. It is contended that the petitioners are not disputing cancellation of five questions of the main written examination rather they are bringing their case on the incorrect answer to question no. 59 which is under challenge in the present writ petition.

In view of the above pleadings, it is evident that the petitioners have made out a clear case that they had attempted question no. '59' of the master question booklet (having different numbers in their question booklets). They have also proved that they had opted for option 'B' ('Fat' as the correct/closest answer) to question no. '59'.

The stand of the petitioners that the objection raised by the petitioner no. 3 regarding the correctness of the key answer to question no. '59' of master answer booklet was not duly adverted to by the duly constituted Committee, is also evident from the facts noted above. The denial on the part of the respondents in paragraph '6' of the counter affidavit to the objection taken by the petitioners is specific, inasmuch as, it is stated therein that the objections taken by the petitioners about the key answer was not found to be correct by the duly constituted Committee. It is, thus, clear that one of the petitioners herein had objected to the correctness of the key answer of the disputed question and his objection was turned down.

Now the question remains as to the correctness of answer to question no. '59'. The question and its options in the master question booklet reads as under:-

“Question No. 59 :

buesa vf/kdre ÅtkZ fdle sa gS \ (A) izksVhu (B) olk (C) dkcksZgkbMªsV (D) foVkfeu”

The petitioner has brought on record the authentic and prescribed text book of NCERT and Biology text book written by Dr. Ramesh Gupta which is prescribed in the syllabus of the examination conducted by the U.P. Intermediate Education Board. The relevant chapter in the NCERT books says that the 'Carbohydrate' mainly provides energy to our body and 'Fat' also gives us energy, in fact 'Fat' gives much more energy as compared to the same amount of 'Carbohydrates'.

In the book written by Dr. Ramesh Gupta prescribed in the syllabus of U.P. Board of Secondary Education, it is mentioned that the 'Fat' provides higher amount of energy in comparison to the 'Carbohydrate'. An NCERT book of Class IX ( उचचतर माधयिमक पाठकम) for Biology subject published in August, 2014 has also been placed before the Court to substantiate the submission that 'Fat' contains greater amount of energy than the 'Carbohydrate'. A reading of the Chapter Nutrition and Health (पोषण और सवासथय) of the said book shows that food can be divided in three categories.; First categories of “Food” are which provide energy. Both 'Carbohydrate' and 'Fat' are included in the said category mentioned as energy providing food. Item 27.2.1 of the said chapter pertains to 'Carbohydrate', whereas Item 27.2.2 pertains to 'Fat'.

The extract of the said items having description of the 'Carbohydrate' and 'Fat' being the sources of energy is relevant to be quoted hereunder:-

**27- 2- 1 dkck sZ gkbMª sV dkcksZgkbMªsV dkcZu] gkbMªkstu o vkDlhtu ds cus gq;s jkl;fud ;kSfxd gSA ;s vkWDlhdj.k ij ÅtkZ mRiUu djrs gSaA ;s ÅtkZ ds lcls lLrs lzksr gSA ,d xzke dkcksZgkbMsªV ds iw.kZ vkWDlhdj.k ds ckn 17 fdyks twy ÅtkZ izkIr gksrh gSaA ,d fdyks dSyksjh Å"ek dh og ek=k gS tks ,d yhVj ikuh dk rkieku 1°C ls c<+k nsA 1 fdyksdSyksjh ¾ 4.18 KJ ¼fdykstwy½ 1 fdykstwy ¾ 1/ 4.18 x 1000 dSyksjh Hkkstu esa dkcksZgkbMªV gekjs 'kjhj ds fy;s vko';d dqy ÅtkZ dk yxHkx 60&80 izfr'kr Hkkx miyC/k djkrk gSaA** **27- 2- 2 olk; sa olk,sa fyfiM oxZ ds vUrxZr vkrh gSaA dkcksZgkbMªVksa dh HkkWfr gh olk,sa Hkh dkcZu] gkbMªkstu] o vkWDlhtu dh cuh gksrh gSaA ysfdu olkvksa es dkcZu o gkbMªkstu rks vf/kd gksrh gS] ysfdu vkWDlhtu de gksrh gSA olk;sa ÅtkZ ds lcls le`) lzksr gSaA olk,sa ty esa v?kqyu'khy gS ysfdu ,slhVksu] csathu vkfn foyk;dksa esa ?kqyu'khy gSA jklk;fud n`f"V ls olk;sa VªkbfXyljkbM gksrh gSaA

1- xzke olk ds vkDlhdj.k ls yxHkx 9-0 fd- dSyksjh ¼37 fdyks twy ½ ÅtkZ izkIr gksrh gSA

olkvk sa ds dk;Z :-

– olk;sa ÅtkZ ds lokZf/kd le`) lzksr gSaA

– dksf'kdk nzO; dh vkSj dksf'kdk f>Yyh ds jpd la?kVdA

– vusdksa gkeksZuksa ds fy, iwoZxkeh ds :i esa dk;Z djrh gSA

– 'kjhj }kjk Hkfo"; esa mi;ksx ds fy;s laxzghr fd;k tk ldrk gSA

– miRoph; olk rkijks/kd dh HkkWfr dk;Z djrk gS o BaM o nkc ls j{kk djrh gSA

– laxzghr olk eq[; vaxks dks >Vdksa ls cpkus ds fy;s xn~nh dh HkkWfr dk;Z djrh gSA

– 'kjhj esa foVkfeu Mh o LVhjkWbM gkeksZuksa ds la'ys"k.k esa lgk;dA Having gone through the abovenoted material/books, there remains no doubt that 'Fat' contains greater amount of energy than the 'Carbohydrate'.

In the light of what has been noted hereinabove, relevant is to go through the language of the disputed question itself. The question is which one out of the four options contains maximum energy. In view of the said language of the question, the obvious answer would be 'Fat' as it contains higher amount of energy than the 'Carbohydrate'. Other two options 'Protein' and 'Vitamin' indisputably, have no relation with the question. The best answer to the question no. '59' of the model question booklet is, therefore, option 'B', which is 'Fat'. The answer given by the petitioners is, thus, found correct.

Lastly, it is noteworthy that though in paragraph '6' of the counter affidavit, it is asserted that the Committee constituted to examine the objections of the candidates on correctness of key answers did not find the objection of the petitioner correct but the decision of the said Committee or the reasoning given by it for rejection of the said objections has not been brought on record.

This Court, therefore, is constrained to take the view that the Committee did not evaluate the key answer on the objection made by the candidates with regard to question no. '59' in the correct prospective. The decision of the Committee to reject the objection of the petitioner no. 3 on correctness of answer to question no. '59' (of model question booklet) is, thus, found arbitrary and perverse.

It is, thus, demonstrated by the petitioners that they are entitled for the marks assigned to the correct answer of question no. '59'.

Learned Standing Counsel, however, vehemently argued that the decision of the duly constituted Committee of experts for evaluation of the objections of the candidates to the key answer is not under challenge in the present petition. The petitioner, therefore, cannot be granted any relief without seeking a writ of certiorari for quashing the same.

To this submission, suffice it to note that the decision of the Committee of experts is not binding on the Court and the same is only a guiding factor to decide the matter considering the Committee being a body of experts.

It is trite in law that the Court is expert of experts and any challenge to the opinion of an expert or a body of experts can be entertained by the Court, however, in case of any doubt the Court may ask for a third expert report.

In the present case, no such situation arises as the petitioners have been able to demonstrate that the correct answer to question no. '59' of the master question booklet is option 'B' 'Fat' and the Court has no doubt about the same after going through the relevant extract of the recognized/prescribed books of Biology by NCERT and U.P. Board of Secondary Education, brought on record.

The respondents are, therefore, directed to provide the marks assigned to question no. '59' of the master question booklet to all the three petitioners treating their answer option 'B' as correct and revise their result of the written examination, accordingly.

If after adding the marks assigned to question no. '59', all the three petitioners, who belonged to General and OBC category, obtain more than the cut off marks of their category which is 314.8926 for the General category and 308.5096 for OBC category, as indicated in the writ petition, they shall be permitted to get their documents verified on a date to be fixed by the Chairman, U.P. Police Recruitment and Promotion Board, Lucknow. After verification of the documents, a special medical examination of the petitioners shall be conducted.

The appointment of the petitioners to the posts notified in the advertisement dated 14.5.2013 would be subject to them being qualified in the documents verification and medical test and that they attain higher marks than the cut off marks of their category on fresh preparation of their results, in accordance with the directions given hereinabove.

The entire exercise is required to be completed by the competent authority under the supervision of the respondent no. 2 within a period of two months form the date of submission of certified copy of this order.

It is made clear that the petitioners shall not be denied appointment to the posts in question on the ground that the vacancies notified in the Advertisement-in-question had been filled, and that their appointment would be against the present available vacancies, their posting shall be done, accordingly.

Subject to the above observations and directions, the writ petition is allowed .

Order Date :- 14.8.2019/Brijesh (Sunita Agarwal, J.)