UTTAR PRADESH SUBORDINATE SERVICE SELECTION COMMISSION & ANR.versusBRIJENDRA PRATAP SINGH & ANR.

                       [2021] 12 S.C.R. 137                            137


  UTTAR PRADESH SUBORDINATE SERVICE SELECTION                          A
                     COMMISSION & ANR.
                                 v.
             BRIJENDRA PRATAP SINGH & ANR.
                  (Civil Appeal No. 7720 of 2021)                      B
                      DECEMBER 14, 2021
                 [K. M. JOSEPH AND
         PAMIDIGHANTAM SRI NARASIMHA, JJ. ]
       Service Law: Examination held for the post of Gram
Panchayat Adhikari – Awarding of marks – Advertisement issued          C
for filling up the post of Gram Panchayat Adhikari – Examination
for said post took place on 21.02.2016 – In Examination, one of
the question was asked about the name of the Panchayati Raj
Minister of State in which option ‘B’ was ‘Kailash Yadav’ – However,
Minister for Panchayati Raj of State ‘Kailash Yadav’ passed away       D
on 09.02.2016 i.e. few days prior to examination – After the release
of answer key, appellant Commission decided that the candidates
who chose option ‘B’ as correct answer or did not mark any option
for the said question be awarded 01 (one) mark and no action was
required in respect of the candidates who chose option ‘A’, ‘C’, ‘D’
of this question – Respondent-candidate, who offered option ‘A’,       E
challenged the decision of the Commission by filing writ petition
before High Court – Division Bench directed the appellant either to
delete the said question or award marks to respondent – Instant
appeal filed by Commission – Held: The decision of the appellant
commission to award marks to those who answered option B or did        F
not mark any option is rationale – Respondent represented those
section of candidates who gave an answer which was not correct at
any point of time – Distinction drawn between the categories by
Commission cannot be characterised as palpably arbitrary –
Appellant made out a case for interference.
                                                                       G
      Allowing the appeal, the Court
      HELD: 1. This is a case where as on the date when the
examination took place, actually 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
                                                                       H
                                137
138             SUPREME COURT REPORTS                       [2021] 12 S.C.R.


A     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
B
      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. [Para 13][143-D-F]
              Kanpur University Through Vice Chancellor v. Samir
C             Gupta (1983) 4 SCC 309 : [1984] 1 SCR 73 – referred
              to.
              Guru Nanak Dev University v. Saumil Garg and Others
              (2005) 13 SCC 749 – held inapplicable.
                              Case Law Reference
D
      [1984] 1 SCR 73                 referred to               Para 9
      (2005) 13 SCC 749               held inapplicable         Para 10
              CIVIL APPELLATE JURISDICTION: Civil Appeal No.7720 of
      2021.
E           From the Judgment and Order dated 18.02.2021 of the High Court
      of Judicature at Allahabad in Special Appeal No.78 of 2019.
           M. R. Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Niaz A.
      Farooqui, Zaki Ahmad Khan, Advs. for the Appellant.
           Piyush Singh, Aditya Parolia, Akshay Srivastava, Sourav Sharma,
F     Rajesh Kumar, Gaurav Goel, Adarsh Upadhyay, Advs. for the
      Respondents.
              The Judgment of the Court was delivered by
              K. M. JOSEPH, J.
G             (1) Leave granted.
             (2) 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,

H
    UTTAR PRADESH SUBORDINATE SERVICE SELECTION                           139
 COMMISSION v. BRIJENDRA PRATAP SINGH [K. M. JOSEPH, J.]

was one Shri Kailash Yadav. Examination, pursuant to the advertisement,   A
was scheduled to take place on 21.02.2016. Shri Kailash Yadav passed
away on 09.02.2016.
      (3) In the examination, question No. 46 was as follows:
      “46. Presently who is the Panchayati Raj Minister in Uttar
      Pradesh?                                                            B

      A. Sh. Shivpal Yadav B. Sh. Kailash Yadav
      C. Sh. Balram Yadav
      D. Sh. Durga Prasad Yadav”
                                                                          C
       (4) The answer key came to be published on 25.02.2016. As is
clear from the decision of the Commission in regard to question No. 46,
as on the date when the examination took place on 21.02.2016, 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. In fact this was an uncontemplated event as can be seen with      D
the benefit of hindsight. The appellant Commission, accordingly, took
the following decision on 29.03.2016:



                                                                          E




                                                                          F




                                                                          G




                                                                          H
140            SUPREME COURT REPORTS                         [2021] 12 S.C.R.


A           (5) The results came to be declared on 24.12.2016. on 27.12.2016,
      based on the results, the appellant made recommendations for filling up
      the vacancies. The respondent was a candidate in the said examination.
      In regard to question No. 46, he offered option No. A. He secured 86
      marks. The cut off marks for the category to which the respondent
      belonged (OBC) was 87. He fell short of the required cut off by one
B
      mark. He filed a writ petition which has finally culminated in the present
      appeal. The prayer sought for in the said writ petition may be noticed:
            “It is, therefore, most respectfully prayed that this Hon’ble Court
            may graciously be pleased to:-

C           A. Issue a writ, order or direction in the nature of 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.
            B. Issue a writ, order or direction in the nature of writ of
            Mandamus directing the respondent no.2 and 3 to consider the
D
            candidature of the petitioner as selected candidate or petitioner
            may be adjusted on the post of Gram Panchayat Adhikari in Gram
            Panchayat Adhikari (General Selection) Examination-2015
            (Advertisement no. 7(3)/2015.
            C. Issue any other writ, order or direction which this Hon’ble
E           Court may deem fit and proper under the circumstances of the
            case, so as to secure the ends of justice or else, the Petitioners
            shall suffer irreparably.
            D. To Award the cost of the petition to the petitioners.”
             (6) Learned Single Judge did not find merit in the contention of
F     the respondent and the writ petition was dismissed.
             (7) By the impugned judgment, the Division Bench, however,
      allowed the appeal filed by the respondent. The Division Bench took the
      view that the ‘case at hand is not having any dispute that all the options
      of question no. 46 were incorrect on the date of the selection test which
G     was due to the sad demise of the then minister’. Awarding of marks to
      those who did not give the answer to question cannot be accepted to be
      proper. So also the answer of marking option of Shri Kailash Yadav to
      be Minister it was found. The Division Bench proceeded to direct the
      appellant to take a decision to either delete question no. 46 of booklet
H     series ‘C’ or to award the marks to the respondent also and if he came
    UTTAR PRADESH SUBORDINATE SERVICE SELECTION                               141
 COMMISSION v. BRIJENDRA PRATAP SINGH [K. M. JOSEPH, J.]

in the merit on awarding of marks then to take further appropriate action     A
as per merit position.
      (8) We have heard learned counsel appearing on behalf of the
appellant and learned counsel appearing on behalf of the respondent.
       (9) Learned counsel appearing on behalf of the appellant would
contend that the direction to delete question no. 46 would cause serious      B
prejudice. On the basis of the selection which commenced in the year
2015 and after the examination took place on 21.02.2016 in regard to
which results were published on 24.12.2016 and pursuant to which,
appointments of number of candidates stood materialised would have to
be reworked. Learned counsel for the appellant, no doubt, drew support        C
from the view taken by the judgment of this Court in Kanpur University
Through Vice-Chancellor v. Samir Gupta (1983) 4 SCC 309. It is his
contention that the view taken by the appellant Commission cannot be
characterised as palpably perverse. When arriving at such a finding, it
may not be open in judicial review proceedings to substitute the view
taken by the examining body. He would further justify the rationale in        D
the following manner. It was pointed out that so far as the decision to
award marks to those candidates who answered question no. 46 by
approving option ‘B’ which is Shri Kailash Yadav, candidates were given
the benefit, as the Commission, apparently, was of the view that the said
person was indeed the minister and the answer would have been correct         E
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 not
correct, if a candidate did not answer the question, it should not work
against him. This is in stark contrast with the case of the respondent        F
who has undoubtedly, ticked option ‘A’ which at no point of time could
be treated as the correct answer. In other words, the case of the
respondent stands on a different footing from a candidate who has given
an answer which clearly is palpably wrong. In such circumstances, he
would commend for our acceptance the principle that in the matter of          G
selection by a body, unless a decision taken is palpably perverse, the
Court should adopt a hands off approach.
      (10) 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.          H
142             SUPREME COURT REPORTS                          [2021] 12 S.C.R.


A     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. More importantly, he drew support from another
      development, one Ankur Srivastava and another person filed Writ Petition
B
      No. 10779 of 2018. In the said case, the stand of the appellant was that
      it has been decided to allow one mark to the question to all candidates
      across the Board. He points out that perusal of the order passed in the
      said case reveals that the High Court dismissed the writ petition in view
      of the submission made by the appellant as grievance of the petitioners
C     therein did not survive. He would further also contend before us that the
      Court may approach his problem bearing in mind the principle laid down
      by this Court in Guru Nanak Dev University v. Saumil Garg and
      Others (2005) 13 SCC 749. Therein, three learned Judges while dealing
      with the problem of incorrect answers or rather incorrect questions/
      vague questions inter alia held that “It is wholly unjust to give marks to
D
      a student who did not even attempt to answer those questions”. He
      would therefore, point out that in the facts of this case, the principle is
      apposite and there is no rationale for the respondent to deny the mark
      which on all counts he is entitled to.
             (11) The selection started in this case in the year 2015 by issuance
E     of the advertisement. The examination took place on 21.02.2016. Option
      ‘B’ to the question no. 46 would have been the correct answer but for
      the untimely death of the minister in question just 12 days prior to the
      examination. In other words, as on the date when the examiner settled
      the question with which we are concerned, this is not a case for a question
F     which was without the correct option. It was not a vague question at
      that time. Circumstances overtook both the Commission and the
      candidates, however, as on the date of the examination option ‘B’ would
      be a wrong answer. None of the options could possibly be the correct
      answer. The Commission, therefore, sat and took a decision. It is
      worthwhile to notice that the respondent has not chosen to impugn the
G     said decision in the writ petition as such. Secondly, we cannot be oblivious
      to the fact that by the time, the Division Bench rendered the impugned
      judgment which is dated 18.02.21, much water has flown under the bridge
      in the form of selection being taken forward and appointments being
      made. Therefore, direction to delete the question at this stage may not
H     be an appropriate remedy though, we would not ordinarily have
    UTTAR PRADESH SUBORDINATE SERVICE SELECTION                                     143
 COMMISSION v. BRIJENDRA PRATAP SINGH [K. M. JOSEPH, J.]

questioned the principle behind such a direction. As far as the other               A
option which is couched as direction to the appellant is concerned which
is to give a mark to the respondent, we have to necessarily sustain such
a direction on the basis of the illegality of the decision taken by the
appellant being successfully impugned.
        (12) We are of the view that the principle of judicial review which         B
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             C
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.
       (13) We have already noticed the view expressed by the Bench
of three learned Judges in Guru Nanak Dev University (supra). But                   D
we may not be justified in applying the said principle in the facts of this
case. This is a case where as on the date when the examination took
place, actually 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         E
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             F
here that the Commission drew a distinction between the categories
which would not therefore, in short, be characterised as palpably arbitrary.
       (14) 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             G
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. We record this statement. It is
stated to be part of the rejoinder affidavit also.                                  H
144              SUPREME COURT REPORTS                      [2021] 12 S.C.R.


A            (15) 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.
              No orders as to costs.

B
      Devika Gujral                                              Appeal allowed.




C




D




E




F




G




H