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CASE NO.: Appeal (civil)  1997 of 2008

PETITIONER: PANKAJ SHARMA

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS

DATE OF JUDGMENT: 14/03/2008

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  1997 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 1340 OF 2007 WITH CIVIL APPEAL NO. 2013 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 9620 OF 2007

AVNEESH CHANDER SURI & ORS.          \005 APPELLANTS

VERSUS

STATE OF JAMMU & KASHMIR & ORS.  \005 RESPONDENTS

WITH CIVIL APPEAL NO.  2014 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 9705 OF 2007

AMIT ABROL                                              \005  APPELLANT

VERSUS

STATE OF JAMMU & KASHMIR & ANR.   \005 RESPONDENTS

WITH

CIVIL APPEAL NO. 2010 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.  7115     OF 2008 (I.A. NO. 1 IN & SPECIAL LEAVE PETITION (CIVIL) NO.        CC NO. 5233 OF 2007)

SUDHIR JAMWAL                                   \005 PETITIONER

VERSUS

STATE OF JAMMU & KASHMIR & ORS.   \005 RESPONDENTS

C.K. THAKKER, J.

1.              I.A. 1 of 2007 in and S.L.P. (C) No.    

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CC No. 5233 of 2007 seeking permission to file  SLP is allowed.  2.              Leave granted in all the Special Leave  Petitions. 3.              The present appeals are filed against  the judgment and order passed by a Single Judge  of the High Court of Jammu & Kashmir on  November 10, 2006 in Original Writ Petition No.  442 of 2005 and cognate matters and confirmed  by the Division Bench on December 28, 2006 in  Letter Patent Appeal (OW) No. 70 of 2006. By  the said order, the learned Single Judge partly  allowed writ petitions filed by the petitioners  and issued certain directions to Jammu &  Kashmir Public Service Commission  4.              To appreciate the controversy centered  round the litigation, few relevant facts may be  noted. 5.              Selection process was initiated by the  Jammu & Kashmir Public Service Commission  (’Commission’ for short) for filling up 132  posts of eighteen Gazetted Services as notified  on April 1, 2005 by Jammu & Kashmir Combined  Competitive Examination. The examination was  held on July 3, 2005. The appellants-writ- petitioners appeared for the Preliminary  Examination but were not successful for being  considered eligible and qualified in the  process of ’short listing’ and could not appear  at the Main Examination as also at Oral  Interview. The selection process at the  Preliminary Examination was challenged, inter  alia, on the ground that it was defective  inasmuch as there were spelling mistakes,  printing errors, discrepancies, questions  having doubtful answers and even wrong answers;  etc., the course adopted by the Commission of  deleting certain questions and adding those  marks pro-rata to the remaining questions was  not proper; the decision was also illegal and  invalid as it was not taken by majority of  Members of Commission; all the Members of the  Commission did not participate in the  corrective process; only three Members over and  above the Chairman were present; out of those  three Members, two Members opposed the method  sought to be suggested by the Commission and  were against it. So far as the third Member is  concerned, he was ineligible and disqualified  to take part in the proceedings since his ward  was one of the candidates/aspirants. He,  therefore, could not have attended the Meeting  and participated in the process, thus, leaving  the decision to the Chairman alone. Such  decision was wrongly described as the decision  of the Commission. The entire process  undertaken by the Commission was totally  illegal, unlawful and arbitrary and was fraud  on the Constitution and liable to be set aside  by directing the Commission to hold Preliminary  Examination afresh in accordance with law. 6.              The Commission filed its counter-  affidavit denying the averments made and  allegations levelled. It admitted that there  were certain errors in question papers but they

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were corrected by giving necessary instructions  in time. It was also stated that in cases of  errors of substantial nature in questions or  wrong/doubtful answers, the Commission  considered the matter, sought opinion of  experts and decision was taken to drop those  questions. It was also decided that the marks  allotted to those questions would be added pro- rata to the remaining questions. It was not  true that there were only three Members over  and above the Chairman. In fact there were six  Members (Chairman + five Members). The  methodology was approved unanimously by all the  Members and on that basis, the decisions were  taken. Subsequently, however, two Members did  not agree to certain decisions but even then  the decisions were majority decisions and hence  no fault can be found against final action  taken by the Commission. It was also stated  that so far as the Preliminary Examination is  concerned, it was the first examination for  considering eligibility of the candidates for  Main Examination. It was thus limited for  ’short listing’ of candidates in the ratio of  1:13. So far as the final selection is  concerned, it was to be made on the basis of  Main Examination i.e. second examination which  comprised of two phases; (i) Written  Examination, and (ii) Oral Interview.  Preliminary Examination, therefore, had no  relevance and cannot cause prejudice or  injustice to any candidate so far as the final  selection is concerned. It was submitted that  the Commission, by considering grievances of  the candidates, salvaged the situation by  ensuring that no injustice is done to any  candidate. The petitions, therefore, were  liable to be dismissed. 7.              The learned Single Judge considered  the rival contentions of the parties, perused  the relevant record and the affidavit filed on  behalf of the Commission as well as two  separate affidavits filed by two Members of the  Commission who dissented in the final process  undertaken by the Commission and issued  following directions: "For the reasons stated above and in  the facts and circumstances of the  case, I allow all the writ petitions  and direct the Public Service  Commission as follows: (a) To delete the following questions  of each paper of "A" series and  their corresponding questions in  "B", "C" and "D" series and  distribute their marks pro-rata to  remaining questions of the papers:         (i) to (xi) \005        \005    \005 (b) To separately redraw the merit of  all the unselected candidates for  the Main Examination in respect of  compulsory paper of General  Studies; (c) To redraw the merit of all the  unselected candidates for the Main

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Examination as per direction (a)  in respect of said ten optional  subjects; (d) To separately redraw a combined  merit list of such candidates who  have appeared in the compulsory  paper of General Studies and  optional subject-papers, as  mentioned in direction (a); (e) Also to redraw a combined merit of  compulsory paper of General  Studies and optional papers of  those candidates, in whose  optional subject-papers there was  no discrepancy, i.e., 12 remaining  optional subjects, which include  the subject-papers of Animal  Husbandry, Botany, Indian History  and Physics, and who have not been  short-listed. (f) To conduct the special Main  Examination of all such  candidates, whose such combined  redrawn merit is equal to or more  than the merit of last short- listed candidate, in accordance  with the procedure prescribed by  the Examination Rules; (g) To complete the whole exercise  within a period of six weeks; (h) To pay an amount of rupees one lac  and thirty thousands as costs to  the writ petitioners, at the rate  of rupees ten thousands in each  writ petition, to be shared by  them equally". 8.              The order passed by the learned Single  Judge came to be challenged by the aggrieved  writ-petitioners by preferring intra-court  appeals. The Division Bench in a brief order  dismissed the appeals observing that it found  ’no basis for any grievance’ against the  judgment of the learned Single Judge. The  appellants have now approached this Court. 9.              On February 2, 2007, the matter was  placed for admission hearing and notice was  issued. Parties were directed to file  affidavits. On April 5, 2007, in I.A. No.2 of  2007 ad-interim relief was granted and though  the proceedings were allowed to continue, it  was ordered that no actual appointment should  be made. The Registry was thereafter directed  to place the matters for final hearing. That is  how they are placed before us. 10.             We have heard learned counsel for the  parties. 11.             The learned counsel for the appellants  contended that the Commission in substance and  in reality converted itself into a Single  Member Commission and hence, all decisions  taken by the Commission should be held to be  without power, authority of law or  jurisdiction. There were only three Members  over and above the Chairman. Out of them, two  were against the method suggested by the

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Chairman, and the third one was ineligible and  disqualified leaving the matter only to the  sweet will of the Chairman and as such the  decision was not of the ’Commission’. It was  also submitted that there was no consensus on  the part of the Members and hence exercise that  has been undertaken by the Commission was not  valid. The only alternate left to the  Commission was to hold Preliminary Examination  afresh and the High Court was in error in  upholding the examination and in issuing  certain directions. The Counsel contended that  errors and mistakes in question papers were  fundamental and essential. In compulsory as  well as in optional subjects, questions were  objective in nature. It was, therefore,  obligatory on the Commission to ensure that the  questions must be such having only one correct  answer. Unfortunately, however, certain  questions were totally incorrect, there were  glaring mistakes, they were vague and  ambiguous, there were more than one correct  answer and they misled the candidates at the  examination. Such examination cannot be said to  be an examination in the eye of law and the  High Court has seriously erred in upholding the  examination even though it was satisfied that  the errors were substantial which called for  issuance of several directions. It was also  urged that the entire process of examination by  the Commission was from the very beginning  illegal, discriminatory and violative of the  rules framed by the Commission and on that  ground also the examination was liable to be  set aside. A grievance was made that no expert  on the subject was ever consulted as stated by  two dissenting members in their communication  to the Commission as also in the affidavits-in- reply filed before the High Court. Results were  prepared secretly as per the wishes of the  Chairman under the so called label of ’secrecy  of exams’ and there was no element of  transparency. Ch. Bashir Ahmed, one of the  members of the Commission, could not have  participated in the examination process or in  considering methodology to be adopted, as his  son was one of the candidates who was to appear  in the examination. He should have abstained  and reclused himself from attending meetings  and expressing his opinion in the process  undertaken by the Commission. According to the  counsel, no timely action was taken by the  Commission.  It was asserted by the Commission  that as soon as the complaints were made       by the candidates about wrong/incorrect/vague/  doubtful/ambiguous questions and the attention  of the Commission was invited by respective  supervisors, instructions were issued  immediately and clarifications were conveyed.  But in fact, it was not done. Even the learned  Single Judge recorded a finding that no such  corrective steps appeared to have been taken as  claimed by the Commission. In view of the said  finding, the learned Single Judge was wholly  wrong in upholding the process by adopting so

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called ’corrective measures’. Again, the  professed ’pro-rata method’ was applied only in  case of those candidates who were not selected.   The said process benefitted only ’unselected’  candidates who could not secure ’cut off’  marks. The action was discriminatory and  amounted to adopting different yardsticks  amongst similarly situated candidates inasmuch  as the benefit was not extended to those  candidates who got themselves selected thereby  depriving them of the benefit of ’pro-rata’  marks. In other words, according to the learned  counsel, equals were treated unequally by  giving advantage to some candidates and  depriving the same advantage to others who were  equally entitled to it. Thus, the entire  process of conducting Preliminary Examination  was illegal, unlawful, unreasonable,  discriminatory and violative of Articles 14, 19  and 21 of the Constitution. 12.             So far as the order passed by the  Division Bench is concerned, it was submitted  that though questions of constitutional  importance having far-reaching consequences  were raised before the Division Bench, the  Bench did not consider them in their proper  perspective and by a cryptic and laconic order,  dismissed Letters Patent Appeals observing that  it did not find any reason to interfere with  the order passed by the learned Single Judge.  On all these grounds, it was submitted that the  appeals deserve to be allowed by setting aside  the order passed by the learned Single Judge  and confirmed by the Division Bench of the High  Court and by issuing direction to Commission to  hold Preliminary Examination afresh in  accordance with law. 13.             The learned counsel for the  Commission, on the other hand, supported the  order passed by the High Court. The counsel  submitted that the basic assumption of the  aggrieved writ-petitioners was that the  decision was taken only by Chairman of the  Commission. According to the writ-petitioners,  there were only three Members over and above  the Chairman; out of them two were against the  method suggested by the Commission to salvage  the situation, one was ineligible or  disqualified to participate in the proceedings  which left the Commission with the Chairman  alone, who as per his whims and sweet will  undertook the exercise. The reality, however,  was otherwise. According to the counsel, over  and above Chairman, there were five members.  Certain decisions were taken unanimously by the  Commission. In some meetings, one of the  Members was not available, but he also  subsequently agreed. The device was approved,  decisions were arrived at, grievances of  candidates were redressed and their interests  were protected. With regard to certain  decisions, no doubt, there was no unanimity but  there was majority and under the relevant  rules, such action could have been taken.  According to the counsel, as soon as the

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attention of the supervisors was invited to  certain wrong, incorrect or doubtful questions  and the Commission was informed by the  supervisors, necessary instructions were given  on behalf of the Commission to get the  questions corrected or ignored and those  instructions were duly communicated to the  candidates. Though the learned Single Judge  decided the point against the Commission and  issued consequential directions, the  Commission, in due deference to the Court and  in the larger interest of student-community,  accepted the finding and did not challenge that  part of the order before the Division Bench.  It, therefore, could not be said that any  injustice had been done to any candidate. It  was also submitted that when wrong, incorrect  or doubtful questions were ordered to be  deleted or ignored and marks of those questions  were added pro-rata to the remaining correct,  valid and legal questions, no complaint can be  made against such step. The counsel submitted  that no injustice was caused to selected  candidates. It is an admitted fact that the  first examination was Preliminary in nature and  was only for short listing candidates in the  ratio of 1:13. Once a candidate clears that  examination, he stands qualified for the entry  to the second stage i.e. Main Examination. For  the purpose of actual selection, the marks  obtained at the first examination (Preliminary  Examination) had no relevance. Marks at the  Main Examination (Written Test and Oral  Interview) were material. Hence, it cannot be  urged by those candidates who could not qualify  at the Preliminary Examination that grant of  pro-rata marks to unsuccessful candidates had  caused injustice to successful candidates. The  said contention had been advanced only with a  view to prejudice the Court, though it is  altogether irrelevant, immaterial and no  grievance has been made by any successful    candidate that he ought to have been given more  marks in Preliminary Examination on the basis  of pro-rata method adopted by the Commission.  It was also submitted that the Commission is a  ’constitutional functionary’ and was expected  to exercise its power in accordance with law.  For that purpose, rules have been framed and in  accordance with those rules, examination was  taken. The law neither provides for fresh  examination nor revaluation of marks. After  complaints were received by the Commission  about incorrect/wrong/doubtful answers, experts  were consulted, their suggestions were  considered and decisions were taken. The entire  record was placed before the learned Single  Judge. The learned Single Judge, after perusing  the record and hearing the parties, issued  certain directions which the Commission  gracefully accepted, undertook the exercise and  redrew the merit-list which benefited certain  candidates who were not selected earlier. Most  of the writ-petitioners, however, were very  much below in ranking and it was impossible for

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them to get qualified in ’short listing  process’ and, as such, they could not have  legitimate ground to make any grievance. Their  only attempt is to get the Preliminary  Examination set aside and to appear at the  fresh examination if so ordered by the Court.  Such action would cause serious prejudice and  grave injustice not only to the Commission but  also to those who are declared eligible and  qualified in the ’short listing process’ at the  Preliminary Examination. On all these grounds,  it was submitted that the appeals deserve to be  dismissed. 14.             Having heard the learned counsel for  the parties and having given anxious  consideration to the rival contentions raised  by the counsel, in our opinion, no case has  been made out by the appellants to interfere  with the order passed by the learned Single  Judge and confirmed by the Division Bench.  As  observed by the High Court, the Combined  Services (Preliminary) Examination, 2005 was  held by Jammu and Kashmir Public Service  Commission for selecting 132 candidates of  eighteen Gazetted Services as notified on April  1, 2005.  For making selection of candidates  for direct recruitment, the basis was Combined  Competitive Examination.  In exercise of power  under sub-section (1) of Section 133 of the  Constitution of Jammu and Kashmir, the  Commission framed rules known as the Jammu and  Kashmir Public Service Commission (Business and  Procedure) Rules, 1980.  They inter alia  provide procedure for transaction of business,  quorum, decision of the Commission, recording  of minutes, etc.  The procedure for conducting  such examination was governed by the rules  known as the Jammu and Kashmir Combined  Competitive Examination Direct Recruitment  Rules, 1995, issued and notified under SRO 161  of 1995, dated July 17, 1995.  The Rules of  1995 envisaged Combined Competitive Examination  in two successive stages; (i)     Combined Services (Preliminary)  Examination (Objective Type) for the  selection of candidates for the Main  Examination; (’Screening Test’); and  (ii)    Combined Services (Main) Examination  (Written and Interview) for selection of  candidates for various services and posts  (’Selection Test’). 15.             The Preliminary Examination consisted  of two papers\027(i) Compulsory Paper of General  Studies; and (ii) one Optional Subject chosen  by the candidate out of 22 specified optional  subjects set out in Appendix-IX to the Rules.   Preliminary Examination was meant to serve only  as a ’screening test’ and the marks obtained by  the candidates at the Preliminary Examination  were limited to get entry and to be treated as  qualified for the Main Examination and were not  to be counted for determining their final order  of merit or selection.  The number of  candidates to be admitted to the Main  Examination on the basis of Preliminary

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Examination was in the ratio of 1:13 total  approximate number of vacancies to be filled up  in various services.  It was also provided in  the rules that only those short listed  candidates who had obtained such marks in the  Preliminary Examination as fixed by the  Commission at its discretion and declared by  the Commission as qualified in the Preliminary  Examination were allowed to appear in the Main  Examination provided they were otherwise  eligible for admission to the said Examination. 16.             The Main Examination again was in two  phases; (i) Written Examination, and (ii) Oral  Interview.  Written Examination comprised of  papers of conventional essay type, out of which  one paper was to be of qualifying nature only,  in the subjects set out in Appendix-IX as per  the detailed syllabus in Appendix-IB.   Candidates who obtained minimum qualifying  marks in the Written Examination as fixed by  the Commission were to be called for Oral  Interview in the ratio of 1:3; i.e. three  candidates as against one post. 17.             The Commission vide its Notification  dated April 1, 2005 invited applications from  the candidates for Preliminary Examination,  Jammu and Kashmir Combined Competitive  Examination, 2005. In response to the  advertisement, 17,116 candidates applied.  Preliminary Examination was conducted by the  Commission simultaneously at Jammu and Srinagar  on July 3, 2005 at 24 Centres wherein 15,293  candidates appeared.  The compulsory paper in  the subject of General Studies carried 150  marks for 120 questions, each question  containing 1.25 marks, whereas Optional Paper  out of 22 subjects was of 300 marks for 120  questions, each question having 2.5 marks. 18.             It appears that at the Preliminary  Examination, a large number of complaints were  made by the candidates that there were several  errors, misprints, spelling mistakes, questions  having doubtful, double and even wrong answers,  etc.  In the light of the complaints made by  examinees on July 6, 2005, a Press Note was  released in leading newspapers as well as on  electronic media by the Commission assuring the  candidates that their representations/  complaints/grievances would be duly considered  while preparing the result. 19.             The text of the Press Note may be  reproduced for ready reference;         "Some candidates who appeared in  J&K Combined Competitive (Preliminary)  Examination, 2005 on 03.07.2005, have  brought to the notice of the  Commission some instances of  misprints/discrepancies relating to  questions in certain disciplines.  The  Commission has taken note of these  representations and also consulted  experts in the relevant fields,  wherever necessary.  The Commission  would like to assure the candidates  that due consideration will be given

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to such representations; while  evaluating their response sheets."

20.             Immediately on the next day, i.e. July  7, 2005, a meeting of the Commission was held  which was attended by its Chairman, Mr. M.S.  Pandit, Mr. M.S. Khan, Mr. C.L. Bansal, Ch.  Bashir Ahmad and Dr. N.A. Jan.  Prof. B.K. Tiku  (a member) was not available on that day and,  hence, could remain present. The meeting  discussed the issue in detail and devised a  scheme in the light of representations.  The  Commission unanimously decided that such of the  reported questions as were admittedly wrong  should be deleted and the marks of deleted  questions be added pro-rata to the rest of the  questions so that no prejudice would be caused  to candidates.  The relevant extract of the  decision of the Commission, along with names of  members who participated, reads thus; S/Shri

1.      M.S. Pandit 2.      M.S. Khan 3.      C.L. Banaal 4.      Ch. Bashir Ahmad 5.      Dr. N.A. Jan

"the KAS/ Combined Services  Competitive Examination, 2005 was held  at 24 centres and many more sub  centres spread over cities of Jammu  and Srinagar on 3rd July, 2005.  During  the course of examination a number of  candidates/aspirants represented that  both in General Studies paper as well  as in optional papers there were a  number of incorrections in the form of  wrong questions, directionless  questions, repetition of questions and  so on.  Through a press release the  candidates for the aforesaid  examination were assured that their  representations will be considered in  consultation with subject matter  specialists and necessary adjustments  will be made in the evaluation of  response sheets and awards there.   Accordingly, based on the  representations received so far,  experts/heads of the departments from  various institutions/universities were  requested to go through General  Studies and Optional papers concerned.   Based on their scrutiny and  recommendations adjustments were made  in the number of questions and  consequential awards out of the  permissible maximum marks of the  question papers.  The commission  approved the modus operandi for making  necessary adjustments based on such  representations."

21.             The Commission also received certain

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representations from aggrieved candidates  thereafter. On July 11, 2005, an extra-ordinary  meeting of the Commission was convened and a  decision was taken that the result of all  candidates who appeared in the Preliminary  Examination be prepared indicating separately  marks obtained in General Studies and Optional  papers and the result to be brought formally  for approval before the Commission.   Thereafter, the candidates in various  categories should be asked to appear in the  Main Examination.  The Chairman of the  Commission and all the five members attended  the meeting and took the following decision; S/Shri 1.       M.S. Pandit 2.         M.S. Khan 3.         C.L. Banaal 4.         Prof. B.K. Tiku 5.         Ch. Bashir Ahmad 6.         Dr. N.A. Jan

"Item No.1:- J&K Combined Competitive  (Preliminary) Examination, 2005  regarding thereof. More representations were received  regarding irregularities observed in  the General Studies as well as  optional papers in the recently held  combined Services Competitive  (Preliminary) Examination, 2005.  The  representations were scrutinized in  consultation with the examiners of  relevant subjects and subject expert.   Necessary actions to be taken in the  matter on the lines previously  discussed in the Commission was  approved.

It was also decided that the result  for all the candidates who appeared at  the examination be prepared indicating  separately the marks obtained in  General Studies and optional papers.   The result will be brought formally  for the approval by the Commission  before the same is notified for  general information.  After this is  done, the candidates in various  categories to be called to appear at  the Main Examination will be short  listed."          22.             From the above decisions, it is clear  that though in the Meeting dated July 7, 2005,  Prof. B.K. Tiku was not present, in next  meeting which was convened on July 11, 2005, he  was also present and unanimous decision was  taken by the Commission. 23.             On July 12, 2005, again a meeting was  called which was attended by all the six  Members, i.e. Chairman and five members.  The  Commission on that day formally approved the  result of Jammu and Kashmir Combined  Competitive (Preliminary) Examination, 2005

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unanimously.  The said decision reads as under;         "The Commission approved the  result of the J&K Combined  Competitive Examinations, 2005 held  on 3rd July, 2005 and desired that the  result be got published in print  media as well be put on the  Commission website.  It was noted  that while preparing the result the  representations received from the  candidates have been given due  consideration.

24.             The writ petitioners were unsuccessful  in getting berth in the ’screening test’ since  they were not able to get the requisite marks.   Being aggrieved by the exclusion from the  competition and getting entry to the Main  Examination, they approached the High Court by  filing writ petitions. 25.             For completion of record, it may be  stated that on July 14, 2005, a meeting of the  Commission was held wherein one of the members  (Dr. N.A. Jan) stated that he had agreed to the  deletion of various questions as per the  decision dated July 7, 2005.  He had, however,  reservations as to the procedure followed for  dealing with the representations received from  candidates in respect of several papers set up  by the Commission.  He was joined in that  regard by Prof. B.K. Tiku who also had raised  objection against the procedure followed by the  Commission.  The relevant extract of the said  meeting is as under;         "Item NO. 11.1:-Confirmtion of  minutes of 10th meeting of the  Commission held on 07.07.2005.

       The minutes were confirmed with  the observation from the Hon’ble  Member Dr. N.A. Jan that although he  had agreed to the deletions of various  questions brought before the  Commission, his reservations regarding  the procedure followed for dealing  with the representations received from  the candidates in respect of various  papers set for the J&K Combined  Services Competitive (Preliminary)  Examination, 2005 be placed on record.   He was joined in this regard by Prof.  B.K. Tiku.  The specific objection  what they had to the procedure adopted  was not mentioned by them.

26.             It was contended by the Commission  that earlier both the members, i.e Prof. B.K.  Tiku and Dr. N.A. Jan agreed to the methodology  adopted by the Commission to cure the defects  and accorded their approval. They, however,  took ’U’ turn to the earlier position and  decided to disassociate from further process by  the Commission.  On July 26, 2005, the Chairman  of the Commission received a Note submitted by  Dr. Jan which read thus;

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       "Please refer to the minutes of  the 10th meeting and 11th meeting held  on 07.07.2005 and 14.07.2005 that the  modus operandi for making necessary  corrections/deletions in the question  papers of both optional as well as  General Studies of KAS (Preliminary  examination), regarding wrong answers,  wrong questions, directionless  questions, repetition of questions and  doubtful key of the relevant subjects  was raised a number of times before  declaration of results.  I had raised  these observations, from 3rd July 2005  regularly soon after examination were  over at various centres and therefore,  the entire process regarding the  subject mentioned above was not in  accordance with the laid down  procedure/norms.  The procedure  adopted for corrections was not  properly followed and standard  procedure was not adopted.

Therefore, I was not in agreement  with the modus operandi adopted  therein, during the process.  In  actual practice, those examiners, who  have set these papers, should have  been called, along with Local Senior  Experts, in the subject not less than  a Professor in the University and  these should have been given a free  hand, to go through these documents.   No reference Books were provided, to  the experts as you can not expect an  expert to be well versed in all  relevant disciplines in a particular  subject.  Without having a Text  Book/Reference Books at his disposal,  besides spelling mistakes, were not  mostly taken into consideration and  due to confused questions, a lot of  time was wasted with the result  candidates have complained regarding  the loss of time and loss of  concentration and most of the  candidates suffered on this account,  with no fault of their and have not  been sufficiently compensated thereof.

In view of the large scale  complaints regarding most of the  subjects including General Studies and  Optional papers, misprints, wrong  answers, defective key out of the  syllabus questions, repetition of  questions and confused questions with  the result the candidates were not in  a position to solve the questions in  the manner it would have been done.   Before finalization of the result I  have several times pointed out that in  view of large scale changes involved  it would be appropriate to go for

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fresh examination for all those  papers, which were defective in  nature.

I had also suggested that  sufficient time; at least fifteen days  from the date of examination i.e.  03.07.2005 be provided to those  candidates who would like to put forth  their grievances.  I have also  suggested that in those papers where  no representation was received, they  should also be checked, so that all  doubts are cleared.  But unfortunately  all my suggestions were not only  brushed aside but given a cold  shoulder.  Besides in view of  amendments in the Examination rules,  there is no role of a member in the  examination process, therefore  declaration of result is a mere  formality.  My suggestion for  improvement of examination system viz  Maharashtra State Model was also  brushed aside which I had been raising  since February, 2005.  In view of  above, I do not associate myself with  the process of KAS Examination except  the recording of number of questions  which were at random deleted.                                                 Sd/-                                 (Dr.N.A.Jan)"

27.             Meanwhile, minutes of the meeting  dated July 14, 2005 were confirmed (by  majority) by the Commission on July 26, 2005.   On July 28, 2005, the Chairman of the  Commission recorded observations on the Note  submitted by Dr. Jan referred to above and  stated;         "This obviously seems to be an  after thought in view of the fact that  the methodology for dealing with the  representations regarding errors/  discrepancies in some papers of the  (Prelims) Examination was discussed in  detail by the Commission at its  meetings held on 07.07.2005 and  11.07.2005, at which Dr. Jan was  present. The errors pointed out by him  with regard to certain papers (in hand  written sheets) including Geography  about which he had a long list were  discussed at length and the concerned  examiner and expert were consulted.   Based on this exercise, the questions  to be deleted were recorded in brief  minutes, which were signed by the  Hon’ble Member.  The manner of giving  relief to the candidates in respect of  deleted questions stands reflected in  the minutes of the said meetings,  which were subsequently confirmed.   The Hon’ble Member was also present at

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the meeting held on 12.07.05, at which  the result of (Prelim) Exam were  authorized for circulation.

It was only 14.07.2005, when Dr.  Jan, first mentioned his dissent.   Even at that meeting, he was not  specific with regard to his  objections, and this stand reflected  in the minutes of the said meeting. The note of dissent has been recorded  on 20.07.2005, long after the  declaration of results, and does not  contain any specific points on which  action can be taken at this stage,  particularly all aspects of the issue,  including the alternatives suggested  by the Member have been taken into  consideration.  The alternative of  holding fresh examination in some of  the subjects ruled out for the reason  that after making adjustment for  certain questions, no inequality  survived and therefore, holding fresh  examination at great cost and effort  would go against public interest.

       Incidentally, the note overleaf  refers to ’defective key to  questions’.  I wonder how the Hon’ble  member reached this conclusion,  because no one in the Commission  (except those authorized under the  Examination Rules), and nobody outside  the Commission, had any access, nor  has any access, to the key.   Therefore, any reference in this  regard, seems to be based on some pre- conceived notion, which obviously is  not valid.

The point made by the Hon’ble  Member with regard to Maharashtra  State Model, had been taken into  consideration by the Commission at its  marathon sittings, at which the  Examination Rules were finalized.

       Please keep these notes on record.                                               Sd/-                                    Chairman" 28.             On August 8, 2005, another member  (Prof. B.K. Tiku) also sent a note the Chairman  of the Commission which read thus;         "This has reference to the minutes  of the 10th and 11th meeting held on 7th  and 14th July, 2005 respectively,  wherein the procedure adopted for  making necessary corrections/deletions  in the question papers of both  optional as well as General Studies of  KAS (Preliminary examination),  regarding wrong answers, wrong  questions, and doubtful key of the

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relevant subjects was discussed many  times before declaration of results.   I had raised these objections from 3rd  July, 2005 regularly soon after  examination were over and to me it  appeared that the entire process  regarding the subject mentioned above  was not in accordance with the laid  down procedure/norms.  The procedure  adopted for corrections was not  properly followed.  The Chairman  arbitrarily adopted the criteria for  deletion of questions for the reason  best known to him.

       Therefore I was not in agreement  with the modus operandi adopted  therein, during the process.  In  actual practice those examiners, who  have set the papers, would have been  called along with local senior  experts, in the subject  not less than  professor  in the University and these  should have been given a free hand to  go through these documents.  This is  insisted every time whenever the  discussion regarding the subject would  take place.  I was prompted to insist  on this point keeping in view my  experience of 35 years as a teacher  and as an expert examiner for number  of Universities in the country for  nearly two decades.

       In view of the large scale  complaints regarding most of the  subjects including General Studies and  Optional papers, mis-prints, wrong  answers, defective key out of the  syllabus questions and confused  questions with the result the  candidates may not have been in a  position to solve the questions in the  manner normally they would have done.   Before finalization of the result I  had several times emphasized that in  view of large scale changes involved  it would be appropriate to go for  fresh examination for at least those  papers, which were largely defective  in nature.

       I have a genuine strong feeling  that the procedure adopted for  rectifying the mistakes is not fair at  all and may be that it might have  resulted in injustice to a large  number of candidates for no fault of  theirs.

       Today on 5th August, 2005  Commission meeting was held at 3.30 pm  to give approval to the result of the  Competitive Examination (KAS Prelim).   A result copy was circulated among the

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members for giving approval for  declaration of the result but I did  not sign it as I have not approved the  modus operandi, which to me appears  not to be fair at all, for rectifying  the mistakes in the question papers as  elaborated above in detail.

       My reasons for not approving and  thus not signing the result copy is as  per my inner conscience which has not  permitted me to give my approval for  declaration for the result of the said  examination in view of the above  mentioned facts.  This may please be  minuted in the proceedings of the  Commission meeting held today the 5th  of August, 2005.                                             Sd/-                                   (Prof. B.K. Tiku)"

29.             The Chairman of the Commission made  his observations to the said note thus;         "Hon’ble Member had for reasons  best known to him, disassociated  himself with the examination process  for KAS (Prelim), without specifying  any cogent reasons therefore.  This  finds mention in the minutes of the  meeting of the Commission which  already stand confirmed.  It was only  after he was requested to put in  writing his objections that he wrote  this note.  In the present note, inter  alia, he has mentioned that the  question of ’doubtful key’ of answers  was also discussed.  Nobody including  the Hon’ble Members and the examinees  had any access to the key prepared by  the examiners of the relevant  subjects.  Any doubts raised in this  regard, obviously show a prejudiced  and preconceived mindset.

In any case, it is the Commission,  with the strength of four members and  the Chairman which took a conscious  decision to deal with the errors  occurring in the question papers in  accordance with a rational modus  operandi, and finally adopted the  results of the Prelim Exam.  after  having given due and just  consideration to the representations  submitted by the candidates up to 10th  July, 2005.

The note be kept on record.                                                     Sd/-                                         Chairman

30.             Since both the dissenting members  wanted their dissenting views to be reflected  in the objections/counter to be filed in the

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Court on behalf of the Commission, the matter  was placed before the Commission in its extra- ordinary meeting held on September 12, 2005 in  which over and above Chairman, three members  were present including both the members who  submitted dissenting note, namely, Prof. B.K.  Tiku and Dr. N.A. Jan and decision was taken in  the meeting which read thus; S/Shri 1.      M.S. Pandit 2.      Pro B.K. Tiku 3.      Ch. Bashir Ahmad 4.      Dr. N.A. Jan

The decision taken in the meeting is  reproduced below:--

"Objections and affidavits filed in  the High Court cases viz. Kuldeep  Kumar & Others vs. State of J&K &  others, Ravinder Singh Sahi v. State  of J&K & Ors. and Shiv Gandotra Vs.  State of J&K & others had also been  circulated amongst the members of the  Commission and were discussed during  the meeting. The Hon’ble Members,  Prof. B.K. Tiku and Dr. N. A. Jan  reiterated their reservations in  regard to the methodology adopted for  dealing with the representations  regarding errors/ discrepancies in  some of the question papers.  They  wanted these reservations to be  reflected in the objection/counter  filed on behalf of the Commission.   The Hon’ble Members were informed that  while their observations had already  been taken on record, the objections  raised by individual Members cannot be  given place in the affidavits filed/to  be filed before the Hon’ble Court  based on the decision taken by the  Commission."

31.             On September 13, 2005, Prof. Tiku and  Dr. Jan once again sent a note to the Secretary  reiterating their dissent and insisting that  their dissenting views should be reflected in  the reply to be filed by the Commission.  On  September 15, 2005, the Commission again  discussed and approved the affidavit-in-reply  to be filed in the Court in which the above  five members including Chairman were present  and the following decision was taken;         "It was explained that the  objections and affidavit in this case  has been prepared on the lines of  objections and affidavit prepared in  similar type of writ petition cases  and circulated to Members earlier and  the same should be filed under the  signatures of Secretary."   

32.             Before the learned Single Judge,

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broadly two questions were raised; (1) In two  papers, namely (i) General Studies, and (ii)  Optional Subjects, there were several mistakes  and errors; certain questions were incorrect,  some questions had wrong/vague/ambiguous  answers or more than one correct answer, the  candidates were not in a position to understand  those questions which put them in  disadvantageous position and they were made to  suffer without there being any fault on their  part.  Such action could not be said to be in  consonance with law and the examination was  liable to be set aside. (2) The Commission  failed to follow Examination Rules as also  Procedural Rules and the decision taken by the  Commission could not be said to be a decision  of ’Commission’ and the examination conducted  by the Commission was not in consonance with  law. 33.             The stand of the Commission, on the  other hand, was that in conducting the  examination, relevant rules were strictly  followed, wrong questions, questions having  more than one answer or questions which were  not sufficiently intelligible were totally  excluded deleting the marks allotted to those  questions by pro-rata adding them to the  remaining questions.  The said decision was  taken by the Commission unanimously and that  too after obtaining expert opinion. It was,  therefore, not correct to say that the decision  was not of the Commission. Regarding various  decisions taken and methodology adopted, it was  submitted that the procedure laid down by the  Commission under 1980 Rules was followed and  even that contention was not well-founded. The  petitions were, therefore, liable to be  dismissed.  34.             So far as the decision of the  Commission is concerned, the learned Single  Judge has considered the matter in detail.   According to him, the basic premise on which  the writ petitioners questioned the action of  the Commission was not well-founded or  factually correct. According to the writ- petitioners, all the decisions were taken by  the Commission wherein only four members were  present, i.e. Chairman and three members.   According to them, two members did not agree to  the method (described in various decisions as  modus operandi) since they were against it. The  third member, Ch. Bashir Ahmad, according to  the writ petitioners, was not eligible and  qualified to have attended the meeting and to  have expressed his views inasmuch as his son  was one of the candidates/aspirants at the  Preliminary Examination leaving thereby the  entire decision to only one individual, the  Chairman of the Commission.  Such a decision by  no stretch of imagination can be described to  be a decision of the ’Commission’. 35.             The learned Single Judge considered  the contention of the writ petitioners, perused  the relevant record produced before the Court  and came to the conclusion that the foundation

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on which the writ petitioners put forward the  contention was ill-founded. In all, there were  six members; Chairman and five members. Except  at one occasion, they were present when  relevant decisions were taken.  We have  extracted hereinabove the material parts of the  minutes. From that also, it is clear that on  July 7, 2005, when a decision was taken to  adopt a particular method so as to ’reach  injustice’ said to have been caused because of  mistakes, errors, ambiguities, etc., five  members including the Chairman were present and  a decision was taken.  Prof. Tiku, according to  the Commission, was out of station and could  not remain present. The decision, however, was  unanimous decision so far as five members who  attended the meeting. It is also clear from the  record and as per the finding by the learned  single Judge that in subsequent meetings, Prof.  Tiku was present and he also agreed to the  earlier decision taken by the Commission on  July 7, 2005.  It is no doubt true that later  on, two members dissented from earlier  decisions. That, however, did not make the  earlier action illegal, contrary to law or  otherwise vulnerable. 36.             In this connection, the learned single  Judge referred to Rules 6 and 9 of 1980 Rules.  The former relates to quorum and reads thus; Quorum - Where the number of members  is even, one half of the number with  the additional one shall constitute  quorum for meeting.  Where the number  is odd the quorum shall be such number  as may exceed half the total number of  Members.

37.             The latter provides for decision of  Commission and reads as under; Decision of the Commission.\027Decision  at the meeting of the Commission shall  be taken in keeping with the views of  the majority of thereof.  The Chairman  shall have casting vote in case of  tie.  Where a case is circulated and a  difference of opinion exists, the case  shall be again referred to be  dissenting Member(s).  In case the  Member(s) stick(s) to the views  already expressed by him/them, the  case shall be put up at a meeting of  the Commission for a final decision.          38.             Rule 11 deals with recording of  minutes and may be reproduced; Record of decisions.\027All decisions of  the Commission taken at the meeting  shall be recorded by Secretary.  The  draft of the minutes shall be put up  by the Secretary to Chairman for  approval; thereafter the minutes shall  be circulated to Members subsequently  brought up for formal confirmation at  the next meeting of the Commission.

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39.             From the aforesaid provisions and the  decisions referred to hereinabove, it is clear  that the action taken by the Commission could  not be said to be contrary to Rules. The  decisions taken by the Commission were either  ’unanimous’ or by ’majority’.  The learned  Single Judge, in our opinion, was right that  the assumption on which the writ petitioners  based their claim and proceeded to convince the  Court that there were only three members over  and above the Chairman and the decisions were  taken by one and the same person, i.e. Chairman  of the Commission was totally ill-founded and  without basis whatsoever.  It is further clear  that at the initial stage when the methodology  was adopted, five members including the  Chairman were present on July 7, 2005 and all  of them agreed to the scheme suggested by the  Commission. Though on that day Prof. Tiku was  not present, subsequently, he also agreed to  the said action. Even thereafter, the decisions  were either unanimous or by majority in  consonance with Rules of the Commission. 40.             As regards participation of Ch. Bashir  Ahmad, the contention of the writ-petitioners  was that he was disqualified and disabled  himself because his son was appearing in the  examination. He, therefore, should have  reclused himself from attending and  participating in the process. The contention  has no merit.  The learned Single Judge  observed that the question of disability could  arise only in case of his participation at the  stage of selection where the merit of a  candidate was to be adjudged. In our view, the  learned single Judge was right. It is clarified  by the Commission that the selection was not  based on Preliminary Examination. It was  relevant only for the purpose of qualifying and  getting entry to the second examination, i.e.  Main Examination. In other words, it was in the  nature of ’screening test’ and ’selection’ or  ’merit’ was not to be based on the result of  Preliminary Examination.  Again, so far as the  Commission is concerned, Commission had not  taken any decision in favour of or against any  ’individual candidate’ but was in the nature of  ’policy decision’. Keeping in view large scale  complaints against question papers, general  action was required to be taken. It was  necessitated to ensure that no candidate should  suffer when there was no fault on his/her part.   In consideration of such a situation and to  find out solution, if any, all the members of  the Commission ought to participate and take an  appropriate action. There is no question of  showing ’bias’ or exhibiting ’favour’ towards  any individual candidate. We are, therefore, in  agreement with the High Court that Ch. Bashir  Ahmad could not be said to be disqualified in  attending meetings and in taking part in the  proceedings. 41.             We are also not impressed by the  argument of the learned counsel for the writ-  petitioners that by conferring benefit to those

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candidates who were unsuccessful, and by not  extending similar benefit to successful  candidates, any injustice had been caused to  the latter class. Firstly, the candidates who  were successful at the Preliminary Examination  have not raised this plea and we are surprised  as to how such contention could be raised by  unsuccessful candidates that though they  (unsuccessful candidates) got the benefit of  additional marks, similar benefit had not been  given to successful candidates.  But even  otherwise, the contention is not well-taken.   As already noted, Preliminary Examination was  the first step and was limited to the process  of ’short-listing’ of candidates in the ratio  of 1:13 and was not relevant for final  selection of candidates and preparation of  Merit List/Select List.  The marks obtained at  the Preliminary Examination were not to be  counted for final selection and preparation of  merit list. It was limited to getting entry in  the Main Examination.  It, therefore, cannot be  said that by not granting benefit of additional  marks to ’selected’ candidates which were given  to ’unselected’ candidates, injustice had been  done to ’selected’ candidates. 42.             As to the second question, the learned  single Judge has held that there were mistakes  in questions in compulsory subjects as well as  in optional subjects.  Learned Single Judge  also held that it could not be believed that  necessary instructions were issued by the  Commission to Supervisors in time and they were  announced and corrections were carried out in  the examination centres. In our opinion, the  learned Single Judge could not be said to be  wrong in recording such finding. From the  record it appears that complaints were made as  to mistakes, errors, vague answers, wrong  answers, etc. by the candidates to supervisors.   Supervisors in turn informed the Control Room  specially set up by the Commission to receive  such complaints.  According to the affidavit of  the Commission, the Commission considered the  complaints, opened original manuscripts,  tallied the questions with the printed  questions, informed the supervisors about  necessary corrections and thereafter those  corrections were made. Learned Single Judge has  observed that there was no evidence to show  that the time was extended by the Commission.  According to him, therefore, it was not  possible that at all the centres such  corrections were conveyed and they wre brought  to the notice of the candidates within the  examination period. 43.             The learned single Judge in this  connection observed as under; "In this behalf, I have perused the  record of Commission. From the record  nothing is available to point out as  to which were those questions, the  spellings of which were sought to be  clarified by the supervisory staff of  any Examination Centre, and which were

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the questions actually verified by the  Commission and conveyed to the  respective Supervisors for making the  announcements. In the absence of such  record, it cannot be accepted that the  printing errors/spelling mistakes in  the question papers were duly  rectified by actual announcements in  the Examination Centres. Therefore,  all the questions, which have wrong  spellings of the words used therein  have to be treated as wrong questions.  In all, there are 12 such questions in  Sociology paper, i.e., Q. Nos. 17, 37,  46, 53, 60, 72, 73, 83, 93, 97, 98 and  113 with printing errors/spelling  mistakes. Out of these questions, the  Commission itself has deleted Q. No.  113. In Q. No. 113 there was printing  error in the word ’Kwekiuti’. The stand of Commission that the  questions having only major printing  errors or those which had not been  corrected by announcements were  deleted is equally unacceptable. There  is no record available to show the  questions which were actually  corrected by announcements. Therefore,  neither it can be said nor it has been  shown by the Commission which were  those questions having printing errors  and deserved correction, but had not  been corrected through announcements  in the Examination Centres. Moreover,  there is no policy decision shown to  have been taken by the Commission for  defining which printing errors would  be considered as major printing errors  and which printing errors would be  deemed to be minor printing errors. In  the absence of such policy decision,  the Commission could not have validly  made any distinction between the  questions with major printing errors  and the questions with minor printing  errors for the purposes of making  deletion of questions from the  question papers. If the Commission in  its wisdom deleted Q. No. 113 from the  question paper because of printing  error, then on the same principle the  Commission ought to have deleted all  the questions which were having  printing errors in the paper of  Sociology. The action of Commission  regarding deletion of only one  question out of the questions having  printing errors/spellings mistakes  suffers from the vice of arbitrariness  and unreasonableness. Therefore, all  the said 11 questions also deserved  deletion on the analogy of Q. No. 113  from the question paper of Sociology. Further, let us assume that  announcements were made in the

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examination centres for correcting the  spellings of wrong questions. For  instance, take the paper of Sociology,  in which admittedly there were 12  questions with spelling  mistakes/printing errors. Some time  must have been consumed by the  Supervisors of the concerned centres  to register the objections of the  candidates, then for conveying the  same to the Control Room set up by the  Commission. In the Control Room also  some time must have been consumed by  the Chairman and the Controller of  Examination to verify the correct  spellings from the original  manuscripts of the said questions and,  thereafter, conveying the same to the  supervisory staff. Thereafter, the  supervisory staff would also have  taken some time for making the  announcements for correcting the  spellings of 12 mis-spelled questions.  In all probability, each question must  have taken at least one minute for  being corrected. In this way, atleast  12 minutes out of total two hours must  have been wasted. It is not the case  of Commission that the time fixed for  completion of such papers was ever  extended. The non-extension of time  also suggests that in the examination  centres announcements for correction  of spelling mistakes may not have been  actually made at all. From whatever  angle we look at the issue, only one  conclusion we can reasonably reach is  that all the questions, which have  spelling errors, must be treated as  wrong questions and, therefore, should  also be deleted. Likewise, the petitioners objected 8  questions of Zoology subject-paper; 11  questions of Geology; 9 questions of  Geography; 8 questions of Chemistry; 6  questions of Agriculture; 6 questions  of Mathematics; 2 questions of  Mechanical Engineering and 1 question  of Law, on the ground of being invalid  because of spelling mistakes/printing  errors, According to the Commission,  these 55 questions of above-said eight  subjects have not been deleted, as the  same were also got corrected through  announcements made in the Examination  Halls and the mistakes were  intelligible to the candidates having  knowledge of the subject. For the  reasons already given, the stand of  Commission in this regard cannot be  accepted and, therefore, the above- referred 55 questions, in addition to  11 pointed out questions of Sociology  subject-paper, in all also deserved to  be deleted, besides the already

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deleted questions".          44.             The learned Single Judge is right in  making above observations.               45.             But there is an additional factor also  which supports this view. It is clear from the  fact that after the receipt of the complaints,  the Commission had issued Press Note on July 6,  2005 and assured the candidates that the  Commission would look into the matter and no  injustice would be caused to them.  The  Commission also obtained expert advice and  thereafter suo motu decided to delete certain  questions by allotting those marks pro-rata to  remaining questions. It is, therefore, clear  that even according to the Commission, some  action was necessary, after the examination was  over. 46.             It was then contended that once the  High Court found that the Preliminary  Examination was not conducted as required by  law, it ought to have set aside the examination  and issued direction to hold fresh examination.  No third course was permissible. In this  connection, our attention was invited by the  learned counsel to a decision of this Court in  Vijay Singh Charak v. Union of India & Ors.,  (2007) 3 Scale 503 wherein it was held that  once the select list is challenged in the High  Court, the Court can either quash the list, if  it finds to be invalid or may uphold the  validity thereof. No other option was open. In  our view, the ratio laid down in Vijay Singh  has no application to the case on hand.  In  that case, the High Court while disposing the  writ petition, observed;         "In case the petitioners withdraw  the writ petitions, Government shall  refer the proposed select list of IFS  of 1991 back to the Selection  Committee where the points raised by  the petitioners and respondents will  be considered under rules by the said  Selection Committee.  The final list  approved by the Selection Committee  shall be final and binding on the  parties.

       In view of the above assurance,  learned counsel for the petitioners  submit that they do not want to press  the writ petitions and the same be  dismissed as withdrawn.

       We order accordingly."

47.             From the above extracted portion, it  is clear that what was done in that case was  that the High Court allowed the petitioners to  withdraw the writ-petition and directed the  Government to refer the proposed selection list  back to the Selection Committee where the  points raised by the petitioners and  respondents would be considered.  Obviously  this Court did not approve the above method and

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the decision and held that such a course could  not have been taken by the High Court. 48.             In the present case, certain  corrective steps were taken by the Commission  suo motu on the basis of expert-opinions.  Again, when the High Court felt that some more  actions were required and issued certain  directions, the Commission accepted the order  passed and directions issued by the learned  Single Judge and did not challenge it. In our  opinion, the approach adopted by the Commission  cannot be said to be unreasonable or  irrational. In fact, in such a situation,  appropriate remedial measures can always be  taken by a Court of Law. 49.             In Kanpur University v. Samir Gupta,  (1983) 4 SCC 309, Combined Pre-medical Test was  taken by the University for admission to  medical course.  Objective type of questions  were set up and four options were indicated,  three being wrong.  It was held by this Court  that the Court will presume key answers to be  correct and proceed to examine accordingly.   But if any of the key answers is proved to be  ’demonstrably wrong’ or is such that ’no  reasonable body well-versed in the subject  would regard as correct’, it would be unfair to  penalize students for not giving an answer that  accords the key answer.  In such a situation, a  Court of law can issue an appropriate  direction. 50.             Speaking for the Court, Chandrachud,  C.J. said; "If the State Government wants to  avoid a recurrence of such lapses, it  should compile under its own auspices  a text-book which should be prescribed  for students desirous of appearing for  the combined Pre-Medical Test.  Education has more than its fair share  of politics, which is the bane of our  Universities. Numerous problem are  bound to arise in the compilation of  such a text-book for, various  applicants will come forward for doing  the job and forces and counter-forces  will wage a battle on the question as  to who should be commissioned to do  the work. If the State can succeed in  overcoming those difficulties, the  argument will not be open to the  students that the answer contained in  the text-book which is prescribed for  the test is not the correct answer.  Secondly, a system should be devised  by the State Government for moderating  the key answers furnished by the paper  setters. Thirdly, if English questions  have to be translated into Hindi, it  is not enough to appoint an expert in  the Hindi language as a translator.  The translator must know the meaning  of the scientific terminology and the  art of translation. Fourthly, in a  system of ’Multiple Choice Objective-

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type test’, care must be taken to see  that questions having an ambiguous  import are not set in the papers That  kind of system of examination involves  merely the tick-marking of the correct  answer, It leaves no scope for  reasoning or argument. The answer is  ’yes’ or ’no’. That is why the  questions have to be clear and  unequivocal. Lastly, if the attention  of the University is drawn to any  defect in a key answer or any  ambiguity in a question set in the  examination, prompt and timely  decision must be taken by the  University to declare that the suspect  question will be excluded from the  paper and no marks assigned to it".

51.             The Court further stated; "Twenty-seven students in all were  concerned with these proceedings, out  of whom 8 were admitted to the B.D.S.  course, 3 were admitted to the  M.B.B.S. course last year itself in  place of the students who dropped out  and 5 have succeeded in getting  admission this year. Omitting 8 of the  respondents who have been already  admitted to the M.B.B.S. course, the  remaining 19 shall have to be given  admission as directed by the High  Court. If the key answer was not wrong  as it has turned out to be, they would  have succeeded in getting admission.  In view of the findings of the High  Court, -the question naturally arose  as to how the marks were to be  allotted to the respondents for the  three questions answered by them and  which were wrongly assessed by the  University. The High Court has held  that the respondents would be entitled  to be given 3 marks for each of the  questions correctly ticked by them,  and in addition they would be entitled  to 1 mark for those very questions,  since 1 mark was deducted from their  total for each of the questions  wrongly answered by them. Putting it  briefly, such of the respondents as  are found to have attempted the three  questions or any of them would be  entitled to an addition of 4 marks per  question. If the answer-books are  reassessed in accordance with this  formula, the respondents would be  entitled to be admitted to the  M.B.B.S. course, about which there is  no dispute. Accordingly, we confirm  the directions given by the High Court  in regard to the reassessment of the  particular questions and the admission  of the respondents to the M.B.B.S.  course".

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52.             In Abhijit Sen v. State of U.P.,  (1984) 2 SCC 319, the principle laid down in  Samir Gupta was reiterated and was extended to  ’tricky questions’ also. 53.             In our judgment, the learned single  Judge considered the controversy in its proper  perspective, and in the light of mistakes/  errors/ inaccuracies, issued certain directions  which benefited the student-community.  As  mentioned by us in the earlier part of the  judgment, the said exercise had been undertaken  by the Commission and merit list was redrawn.  Some candidates who had earlier been declared  disqualified were held to be qualified and  notification to that effect was also issued.   To us, no exception can be taken against such  action. 54.             It is true, as contended by the  learned counsel for the writ-petitioners that  the Division Bench did not consider all the  contentions raised in the writ-petitions and  decided by the learned Single Judge.  It is  also true that the order is very brief. But  keeping in view the importance of question and  its far-reaching effect, we have considered the  matter at length, went through the relevant  record and once again examined the points  raised by the parties  since we thought it  appropriate to finally conclude the matter  instead of sending it again to the Division  Bench of the High Court which would have  resulted in further delay and we are convinced  that the learned Single Judge was right in not  setting aside Preliminary Examination and  directing fresh examination to be conducted by  the Commission.  On the basis of relevant  record, the learned Single Judge issued  necessary directions which were in the interest  of candidates as also in the larger interest of  administration.  We see no infirmity in the  order passed by the learned Single Judge and  the directions issued and no interference,  therefore, is called for. 55.             For the foregoing reasons, we hold  that the order passed by the High Court cannot  be said to be illegal, unlawful or otherwise  objectionable. All the appeals deserve to be  dismissed and are hereby dismissed, however,  with no order as to costs.