The principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision-making process must be appreciated with reference to relevant well-known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer. The same was observed by Hon’ble K. M. Joseph, J in the matter of Uttar Pradesh Subordinate Service Selection Committee & Anr. vs. Brijendra Pratap Singh & Anr. – [Civil Appeal No. 7720 of 2021].
Brief facts of the case are that in June 2015, the appellant issued an advertisement calling for applications for filling up the post of Gram Panchayat Adhikari. The Minister for Panchayati Raj, Department in the State of Uttar Pradesh, was one Shri Kailash Yadav. Examination, pursuant to the advertisement, was scheduled to take place on 21.02.2016. Shri Kailash Yadav passed away on 09.02.2016. In the examination, question No. 46 was as follows: “46. Presently who is the Panchayati Raj Minister in Uttar Pradesh? A. Sh. Shivpal Yadav B. Sh. Kailash Yadav C. Sh. Balram Yadav D. Sh. Durga Prasad Yadav” As on the date of the examination, Shri Kailash Yadav whose name is shown as the correct answer in terms of Option B had passed away and therefore, Option B would not be correct answer. The appellant Commission, accordingly, took the decision that the candidates who have chosen option (‘B’) as correct answer or did not mark any option for the said question will be awarded 1 mark and no action is required in respect of the candidates who have chosen option A, C, D as the correct answer to this question. The respondent was a candidate in the said examination. Regarding question No. 46, he offered option No. A. He filed a writ petition and prayed that the Hon’ble Court issue a writ order, or direction in writ of Mandamus directing and commanding the respondent nos. 2 & 3 to award the mark of question no. 46 of Booklet Series ‘C’ to the petitioner and prepare a fresh select list.
Learned counsel appearing on behalf of the appellant contended that so far as the decision to award marks to those candidates who answered question no. 46 by approving option ‘B’, candidates were given the benefit, as the Commission, was of the view that the said person was indeed the minister, and the answer would have been correct but for his passing away just 12 days prior to the date of the examination. As far as those candidates who did not attempt to answer the question concerned, the Court is persuaded to take the view that noticing that all the answers to the question were as on the date of the examination incorrect, if a candidate did not answer the question, it should not work against him.
Per contra, learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter, if he secured sufficiently high marks that he could secure selection, then alone, he would get the benefit.
Supreme court after perusing the facts and arguments presented, held that – “This is a case whereas on the date when the examination took place, none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option ‘B’). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option ‘B’. Those who did not answer any of the options, were given marks on the appellant’s premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. In such circumstances, we are of the view that, in the facts of this case, the appellant has made out a case for interference. Appeal is allowed and the impugned judgment stands set aside.”
Judgement reviewed by Mehvish Alam
