CWP No.2822 of 2017 along with 17 connected matters 1
IN THE HIGH COURT OF PUNJAB HARYANA
AT CHANDIGARH
****
1. CWP No.2822 of 2017
Date of Decision : May 19, 2017
Monika Goyal and others …. Petitioners
Versus
State of Punjab and others ….. Respondents
2. CWP No.2931 of 2017
Rohit Chhibber …. Petitioner
Versus
State of Punjab and others ….. Respondents
3. CWP No.2939 of 2017
Naveet Kumar and another …. Petitioners
Versus
State of Punjab and others ….. Respondents
4. CWP No.3157 of 2017
Gurphej Singh and another …. Petitioners
Versus
State of Punjab and others ….. Respondents
5. CWP No.3166 of 2017
Arshdeep Janjua …. Petitioner
Versus
Punjab Public Service Commission and another ….. Respondents
6. CWP No.3244 of 2017
Jap Ji Singh … Petitioner
Versus
State of Punjab and others …. Respondents
7. CWP No.3334 of 2017
Jatinder Singh … Petitioner
Versus
State of Punjab and others …. Respondents
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8. CWP No.3366 of 2017
Hemant Wahi and another …. Petitioners
Versus
State of Punjab and others ….. Respondents
9. CWP No.3367 of 2017
Homa Bansal …. Petitioner
Versus
State of Punjab and others ….. Respondents
10. CWP No.4030 of 2017
Aakanksha Monga … Petitioner
Versus
State of Punjab and others ….. Respondents
11. CWP No.4055 of 2017
Ankit Garg …. Petitioner
Versus
Punjab and Haryana High Court Chandigarh and others …. Respondents
12. CWP No.3720 of 2017
Shilpi Goyal …. Petitioner
Versus
High Court of Punjab and Haryana, Chandigarh through its Registrar and
and others ….. Respondents
13. CWP No.3572 of 2017
Pardeepinder Kaur …. Petitioner
Versus
Punjab and Haryana High Court Chandigarh and others ….. Respondents
14. CWP No.4892 of 2017
Berjinder Singh Sandhu and others …. Petitioners
Versus
State of Punjab and others ….. Respondents
15. CWP No.4509 of 2017
Sunil Kumar …. Petitioner
Versus
Punjab Public Service Commission and another ….. Respondents
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16. CWP No.4790 of 2017
Baani Khanna …. Petitioner
Versus
High Court of Punjab and Haryana at Chandigarh and ors. … Respondents
17. CWP No.4850 of 2017
Nitin Bery …. Petitioner
Versus
State of Punjab and others ….. Respondents
18. CWP No.6220 of 2017
Niharika …. Petitioner
Versus
State of Punjab and others ….. Respondents
CORAM: HON’BLE MR. JUSTICE SURYA KANT
HON’BLE MR. JUSTICE SUDIP AHLUWALIA
Present: Mr. Sourabh Goel, Advocate,
Mr. Pankaj Jain, Advocate,
Mr. Mandeep Kumar Dhot, Advocate,
Mr. Harish Bhardwaj, Advocate,
Mr. G.S.Chahal, Advocate,
Mr. Animesh Sharma, Advocate,
Mr. D.D.Sharma, Advocate,
Mr. Lalit Singla, Advocate and
Mr. B.B.Sobti, Advocate for the Petitioners.
Mr. Rajesh Bhardwaj, Addl.A.G., Punjab.
Mr. Anurag Chopra, Advocate for the High Court.
SUDIP AHLUWALIA, J. –
These Writ Petitions have been filed by various examinees who had
appeared at the Preliminary Examination for selection to the Punjab Civil
Service (Judicial) on 15.1.2017. They are aggrieved with both the Final
Revised Answer Key to the multiple choice questions put to them, as well as
the consequent list of successful candidates drawn up on February 7, 2017.
As such they seek issuance of Writs in the nature of ‘Certiorari’ and
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‘Mandamus’ to quash the impugned Revised Answer Key and List of
successful candidates, with further directions upon the Respondents to
modify/restore the originally published Answer Key, and to consequently
revise/reissue the list of successful candidates.
2) Background of the matter is that after holding the preliminary
Examination, the Respondent No. 1 on its website published its original
Answer Key to the various questions and invited objections/responses of the
candidates to the same, if any. A number of objections and counter-
objections were received, after considering which the authorised Committee
of the Respondent made various changes to the original Answer Key and
thereafter finally published the impugned Revised Answer Key followed by
the list of successful candidates. It may also be mentioned that the
Questionnaire Booklets provided to the examinees were themselves
separately Code marked inasmuch as while the questions contained in the
same were identical, yet their serial numbers differed in the various codified
sets ostensibly to preclude any resort to unfair means in the Examination-
Hall(s). However, a few typographical mistakes had crept in some of the
Booklets, on account of which certain questions were directed to be deleted
therefrom at the time of examination. The writ petitioners are also aggrieved
that the answers given by them to the various questions were not only
correct, but in some cases even tallied with the originally published Answer
Key.
3) It may be observed at the outset that a Writ Court is normally not
expected to revisit the ‘evaluation’ done after any particular examination.
However the matter involved in the present case is not exactly ‘evaluation’,
but an objective and a rather mechanical mode of assigning credit to the
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answers determined as ‘Correct’ out of the various specified options.
Further, being also a Court of Law, we find no inhibition in proceeding to
test correctness of the answers mostly pertaining to the Legal/Law-related
matters covered in the impugned examination.
4) We have noted that grievances of the various Writ Petitioners relate to
certain questions which are generally common in the various Writ Petitions,
but not totally identical. Those questions impugned in each individual writ
petition on the basis of the Questionnaire Booklet bearing Code ‘A’ are
listed below –
CWP 3720 /2017 – Qs. 27 68;
CWP 4030/2017 – Qs. 22, 55, 58 86;
CWP 2822/2017 – Qs. 18, 22, 27, 55, 58, 68, 71 100;
CWP 4790/2017 – Qs. 22, 27, 55, 58, 65, 68 91;
CWP 4055/2017 – Qs. 55, 25, 27 28
CWP 3572/2017 – Qs. 22, 27 58
CWP 4892/2017 – Qs. 86, 58, 68 55
CWP 4509/2017 – Qs. 27, 58, 55, 73 22
CWP 4850/2017 – Qs. 22, 27, 55 58
CWP 6220/2017 – Qs. 22, 58, 68 55
CWP 2931/2017 – Qs. 86, 27, 22, 58, 68 55
CWP 2939/2017 – Qs. 86, 27, 22, 58, 68 55
CWP 3157/2017 – Qs. 86, 27, 22, 58, 68 55
CWP 3244/2017 – Qs. 86, 27, 22, 58, 68 55
CWP 3366/2017 – Qs. 86, 27, 22, 58, 68 55
CWP 3367/2017 – Qs. 86, 27, 22, 58, 68 55
CWP 3334/2017 – Qs. 22, 58, 55 68
CWP 3166/2017 – Qs. 27 58
5) It is thus seen that the impugned questions number Eleven (11) in all.
These happen to be Question numbers 18, 22, 27, 55, 58, 65, 68, 71, 86, 91
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and 100 of the aforesaid Questionnaire Booklet. But before proceeding
further, it would be appropriate first to take note of the various grievances
of the writ petitioners vis-a-vis the Final Revised Answer Key in order to
determine the relative merit in each of those grievances. These happen to
be-
• Wrong deletion of certain questions from the Questionnaire
Booklet, causing prejudice to some Petitioners – Qs. 27, 55
86;
• Wrong alteration of the correct answers shown in the Original
Key – Qs. 22, 65, 68 71, and,
• Wrong answers being treated as correct in the Revised Answer
Key – Qs. 18, 58, 91 100,
6) It may now be mentioned that after service of Notices of motion upon the
respondents, we had directed them to consider the objections of the Writ
Petitioners in relation to the aforesaid impugned questions, and to come up
with their responses. In compliance, the Respondent No. 1 in its short Reply
has conveyed the decision of the Recruitment Committee in the light of the
aforesaid objections along with their reasonings/justifications. The same are
now reproduced verbatim vis-à-vis the aforesaid three types of grievances
raised by the Writ Petitioners, followed by our own observations –
7) Re: Questions Deleted from consideration (Qs. – 27, 55 86) –
7A) “Question No. 27
Which amongst the following f immovable property as per Section
3 of Transfer of Property Act, 1882?
a. Standing Timber b. Grass
c. Fruit Trees d. Growing Crops
e. None of these
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(Legal Position under Transfer of Property Act)
3. Interpretation clause. – In this Act, unless there is something
repugnant in the subject or context, immovable property does not
include standing timber, growing crops or grass;
Proposed Answer Key C
Objections and Cross Objections :
Answer(s) suggested by Objector(s)/ E, A, delete the
Cross Objector(s) questionRespondents’ Reply –
Entire stress is given in the synopsis that answer C is correct.
Even a judgment in Shanta Bai Versus State of Bombay AIR 1958
SC 532 is cited. It is submitted that deletion of the question was
not appropriate. The issue is being considered by the writ
petitioners not in the proper perspective. Some objectors who
attempted question paper booklet code A pointed out that word
‘can be’ is missing between the word ‘following’ and ‘immovable
property’ in question No.27 which was present in corresponding
question in booklet Code B, C and D. Misprint word f at the given
place did not convey any sense. It could mean anything. They
insisted a prejudice is caused to them in selecting right answer
option.
On checking of question booklets of all codes it was found that
objections are correct. Due to omission, question 27 either made
no sense or made a different sense to the candidate who attempted
question booklet Code A vis-à-vis candidates who attempted
question booklets code B, C and D. It is not out of place to
mention here that a similar typographical mistake was reported
during the examination in a question No.26 of Code B (86 of Code
A) and it was ordered to be deleted to avoid any disadvantage to
any candidate. On the same analogy, question No.27 has been
deleted finding the objections as valid. On deletion of question, no
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marks have been awarded or deducted.
Accordingly, the Recruitment Committee found to change he
decision already taken.
Our decision –
It transpires that there was a printing mistake in this question only in the
Booklet Code ‘A’, which has also been highlighted by us in Bold Font while
reproducing the question earlier. Undoubtedly, the Question as printed in
the concerned Booklet is Grammatically incorrect, although a common
sense inference might be drawn that what was being asked is which of the
given Answers could be described as ‘Immovable Property’ under Section 3
of the Transfer of Property Act. The Committee however chose to play safe
and therefore deleted this question altogether on the premise that it could
have prejudiced some of the candidates, who were provided with the
Booklet Code ‘A’. Admittedly, there was no printing mistake in relation to
this question in Booklets ‘B’, ‘C’ and ‘D’. It emerges that the question was
deleted only after the examination had already been completed.
Consequently, three quarters (3/4ths) of the candidates in whose booklets,
where there was no mistake, surely stand to be prejudiced for deletion of
this question after they had attempted it and presumably given the correct
answer. Even in relation to the small typographical error in the question
where the letter ‘f’ has been printed in place of the words ‘is’ or ‘can be’, our
view is that question was certainly capable of being understood by any
average student of Law conversant with the relevant Section of the Transfer
of Property Act. We therefore, are of the opinion that total deletion of this
question was not justified. On the other hand, we can protect the interest of
any affected candidates who were supplied with the question booklet ‘A’ by
awarding full marks to those of them who had answered this question
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correctly by choosing the initial correct option of ‘C’ and not penalizing with
negative marking in case of the candidates from this particular segment
(supplied with booklet-A) who had chosen an incorrect option, to preclude
any prejudice to anyone due to the visible printing error.
7B) Question No. 55
Which of the following statement is incorrect in the light of
Transfer of Property Act, 1882?
a. Right of Redemption belongs to mortgagor
b. Right of Foreclosure belongs to mortgagor
c. Right of Redemption can be abrogated by parties
d. Right of Foreclosure cannot be abrogated by parties
e. None of these
(Legal Position under Transfer of Property Act)
“60. Right of mortgagor to redeem. – At any time after the
principal money has become [due], the mortgagor has a right,
on payment or tender, at a proper time and place, of the
mortgage-money, to require the mortgagee (a) to deliver [to
the mortgagor the mortgage-deed and all documents relating
to the mortgaged property which are in the possession or
power of the mortgagee] of the mortgaged property, to deliver
possession thereof to the mortgagor, and (c) at the cost of the
mortgagor either to re-transfer the mortgaged property to him
or to such third person as he may direct, or to execute and
(where the mortgage has been effected by a registered
instrument) to have registered an acknowledgment in writing
that any right in derogation of his interest transferred to the
mortgagee has been extinguished: xxxxxxxxxxxxx”
“67. Right to foreclosure or sale. – In the absence of a
contract to the contrary, the mortgagee has, at any time after
the mortgage-money has become [due] to him, and before a
decree has been made for the redemption of the mortgaged
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property, or the mortgage-money has been paid or deposited
as hereinafter provided, a right to obtain from the Court [a
decree] that the mortgagor shall be absolutely debarred of his
right to redeem the property, or [a decree] that the property be
sold. xxxxxxxxxxxxxxxx”
Proposed Answer Key B
Objections and Cross Objections:
Answer(s) suggested by Objector(s)/ Cross C, D, delete the
Objector(s) question
Respondents’ Reply –
Original answer key option was B. Answer key option was
changed to E on consideration of objections and cross
objections. No worthwhile reason is given in the synopsis
against the deletion of the question. It is simply submitted that
most appropriate answer option is B. Therefore, the candidates
who attempted B ought to have been given marks. Further,
there was no occasion to delete the question to disadvantage of
the writ petitioners who selected the most appropriate answer.
Answer option B is a right option as right of foreclosure
belongs to mortgagee and not to mortgagor. Only a mortgagee
can apply for fore clouse on expiry of mortgage period.
On further consideration of objections, answer options C and
D were also found to be right answer options to the question.
Right of redemption under Section 60 of Transfer of Property
Act could not be abolished/abrogated by the parties as no
contract to the contrary will be valid. Once a mortgage, is
always mortgage. Right to redemption comes to an end only by
the action of mortgagee when he secures orders for sale or
foreclosure. Nevertheless the parties are debarred from
entering into any agreement not to claim redemption which is
a statutory right.
Section 67 of Transfer of Property Act clearly makes right to
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foreclosure subject to contract to the contrary between the
parties which means they can by agreement abrogate the right
of foreclosure.
In this way options B, C and D all are right options/ answers.
Candidates have definitely been prejudiced in selecting right
answer out of options B, C and D. Therefore, the
Recruitment Committee was of the considered opinion that
decision to delete this question (without awarding or
deducting any marks) is justifiable and there is no need to
change the same.
Our decision –
The decision was taken to delete this question since on considering the
Objections/Counter Objections, the Committee found that while answer ‘B’
was also a correct option, but on a closer analysis of Section 60 of the
Transfer of Property Act, as noted in the highlighted extracts, Answers ‘C’
and ‘D’ are also correct. Consequently, we therefore find no impropriety in
deletion of this question.
7C) Question No. 86 (Question No. 26 in Code B)
Under Section 148-A of Code of Civil Procedure, a caveat
shall not remain in force after the expiry of __ days.
a. 30 b. 60
c. b d. 120
e. None of these
Respondents' Reply -The correct answer option C i.e. 90 days was missing in
question booklet Code B. It was submitted by Shri Harish
Bhardwaj, Advocate that his client attempted Code C and there
was no such omission. She has attempted answer option C
which is correct one. If there is fault on the part of High Court,
she must not be penalized. She deserves to be given 4 marks for
her correct answer.11 of 32
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CWP No.2822 of 2017 along with 17 connected matters 12The Recruitment Committee was inspecting the Centre No. 5
i.e. D.A.V. Senior Secondary School Sector-8C, Chandigarh,
when it was brought to its notice that Question No. 26 of Code
'B' bears a printing mistake, whereas no such mistake was
there in the same question appearing at Sr. No. 86 (Code 'A'),
No. 121 (Code 'C') and No. 26 (Code 'D'). In the interest of
fair play and to avoid any prejudice to the candidates
attempting Question Booklet Code 'B', the Committee ordered
to delete the question. The announcement of order of deletion
of Question No. 26 (Code 'B') and the same question
appearing at Sr. No. 86 (Code 'A'), No. 121 (Code 'C') and
No. 26 (Code 'D') was made in all the Examination
Centres/rooms at about 12.00 noon during the currency of the
examination.The question has been deleted for all the candidates. No marks
for this question have been awarded or deducted. No specific
and special prejudice or loss is caused to any candidate.
Therefore, the decision of deletion of the question is proper
and sound in law."Our decision -
As noted earlier, the correct answer to the question being '90 days' was
missing in the Question Booklet Code 'B'. The printing error in this case is
not as simple as in case of the earlier Question No. 27. We say so, because,
in that question at least the correct answer was available among the various
options specified, which would have enabled any Law student of ordinary
prudence to comprehend the question notwithstanding the typographical
error. But, in relation to the present question, since the actual answer '90
days' was itself missing in the specified Booklet, so the candidates provided
with that particular Booklet surely stood to be prejudiced in comparison to
the others in whose Booklets the same was actually printed. It has been
argued before us by some of the Writ Petitioners that they had spent their
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CWP No.2822 of 2017 along with 17 connected matters 13valuable time in analyzing and answering this question correctly, and so its
deletion causes prejudice to them. We are however, not in agreement with
this assertion. We say so because when there was clearly a risk of the other
candidates being prejudiced on account of misprinting in their relevant
Question Booklet, or in view of an incorrectly framed Question (No.55), the
rational and proper option for the Selecting Authorities was obviously to do
away with those questions altogether so as not to cause any prejudice to the
candidates overall.
8) Re: Answers Changed after objections against Original Answer Key
(Qs. 22, 58, 65, 68, 71 91) -8A) "Question No. 22
The Propositions are:-
I. Where a partner of a professional business partnership
borrows money in the usual and regular cause of business
stating that the money is to be used for partnership business
but misappropriates it, the other partners shall be liable.II. Where money has been borrowed by a partner without
authority, but has been applied to the legitimate business needs
of the firm, the firm is liable.III. Where the act is within the scope of the implied authority
of a partner, but it has been done by him, to the knowledge of
the third party, not for the firm but for his own purposes, the
firm is liable.Which of the following is true in accordance with Indian
Partnership Act, 1932 as to the aforesaid propositions?a. I is correct, II and III are incorrect
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CWP No.2822 of 2017 along with 17 connected matters 14b. I II are correct, III is incorrect.
c. I, II III, all are correct
d. II III are correct, I is incorrect
e. None of these
(Legal Position under the Indian Partnership Act, 1932)18. Partner to be agent of the firm. Subject to the provisions of
this Act, a partner is the agent of the firm for the purpose of the
business of the firm19. Implied authority of partner as agent of the firm .(1) Subject
to the provisions of section 22, the act of a partner which is done
to carry on, in the usual way, business of the kind carried on by
the firm, binds the firm.The authority of a partner to bind the firm conferred by this
section is called his implied authority.(2) In the absence of any usage or custom of trade to the contrary,
the implied authority of a partner does not empower him to(a) submit a dispute relating to the business of the firm to
arbitration,(b) open a banking account on behalf of the firm in his own name,
c) compromise or relinquish any claim or portion of a claim by
the firm,(d) withdraw a suit or proceeding filed on behalf of the firm,
(e) admit any liability in a suit or proceeding against the firm,
(f) acquire immovable property on behalf of the firm,
(g) transfer immovable property belonging to the firm, or
(h) enter into partnership on behalf of the firm.
21. Partners authority in an emergency A partner has authority,
in an emergency, to do all such acts for the purpose of protecting
the firm from loss as would be done by a person of ordinary
prudence, in his own case, acting under similar circumstances,
and such acts bind the firm26. Liability of the firm for wrongful acts of a partner Where, by
the wrongful act or omission of a partner acting in the ordinary14 of 32
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CWP No.2822 of 2017 along with 17 connected matters 15course of the business of a firm, or with the authority of his
partners, loss or injury is caused to any third party, or any
penalty is incurred, the firm is liable therefore to the same extent
as the partner.27. Liability of firm for misapplication by partners .Where
(a) a partner acting within his apparent authority receives money
or property from a third party and misapplies it, or(b) a firm in the course of its business receives money or property
from a third party, and the money or property is misapplied by
any of the partners while it is in the custody of the firm, the firm is
liable to make good the loss.Proposed Answer Key B
Objections and Cross Objections:-
Answer(s) suggested by Objector A, C, D, no
(s)/ Cross Objector(s) option is
correctOn consideration of objections and cross objections, the answer
option was changed from B to E.In the synopsis, it is submitted that reading of the bare provisions
of Partnership Act show that even for wrongful act or omission of
a partner acting in ordinary course of business of a firm, loss or
injury caused to third party or any penalty is incurred, the firm is
liable to the same extent as the partner.The operative part of the proposition No.1 states 'the other
partners shall be liable' which gives impression that all partners
excluding the partner who misappropriated will be liable.
Section 27 of Partnership Act clearly shows that firm (meaning all
partners) shall be liable in case of misappropriation by any one of
the partners. Thus the proposition no.1 is incorrect in the light of
section 27 of the Partnership Act. Section 19 of the Partnership
Act regarding implied authority of partner is not applicable as
there is specific and separate provision dealing with the situation.15 of 32
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CWP No.2822 of 2017 along with 17 connected matters 16The net result is that proposition No.1 and 3 are incorrect, and
proposition No.2 is correct. Therefore, the most appropriate
option is E (None of these). Resultantly, the option E needs no
change. (Emphasis by us).Our decision -
In the original Answer Key, option 'B' was projected as a correct answer
according to which propositions I and II are correct, while proposition III is
incorrect. Proposition I makes "other partners" of a Firm liable for an act of
misappropriation by one partner of the Firm. However, according to Section
26, the "Firm" as a whole is liable in such eventuality and not merely "the
other partners", who were not involved in the act of misappropriation. The
term "Firm" must necessarily have to include the culprit partner as well,
according to the definition. Consequently, there is no impropriety in
changing of proposed original answer 'B' to 'E' by the Respondents.
8B) Question No. 58
What is 'iddat' period prescribed for a widow under Muslim
Law?a. Four lunar months and ten days,
b. Four lunar months
c. Three lunar months and ten days,
d. Three lunar months
e. None of theseProposed Answer Key A
Objections and Cross Objections :
Answer(s) suggested by Objector(s)/ Cross E, wrong option given,
Objector(s) no option is correct16 of 32
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CWP No.2822 of 2017 along with 17 connected matters 17The proposed answer option was A. Answer key option was
changed to E on consideration of objections and cross
objections. In the synopsis, Advocates have relied upon the
book 'Muslim Law in Modern India' by Dr. Paras Diwan and
one other writing of Dr. Rakesh Kumar Singh which mention
that iddat period prescribed for Muslim widow was four lunar
months and ten days. They further referred to definition of
iddat as given in Section 2 (b) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. It is argued that
Muslim Law is un-codified. Therefore, the iddat period as
defined under the Muslim Women (Protection of Rights on
Divorce) Act, 1986 in terms of 'lunar month' shall be accepted
to avoid any confusion. Interestingly Shri Harish Bhardwaj,
Advocate has referred to text book 'Mohammedan Law', 23rd
Edition by Aqil Ahmad reviewed by Iqbal Ali Khan in which
iddat period of a widow is defined four months and ten days.
The same author has also been relied upon by the objectors
when they questioned the proposed answer key. The same was
considered by the Committee while correcting the answer
option. It is added that every month in Islamic Calendar is a
lunar month. But no authority or citation is given to this effect.
Numerous objectors insisted that there is difference between
'lunar month' and ordinary 'month'. They relied upon
commentary 'MULLA Principles of MAHOMEDAN LAW', and
'Mohammedan Law' by Ahmad Aquil revised by Prof. Khan
I.A. Edition: 2013, where commentators had used expression
'month' to describe iddat period for widow without prefixing it
with word 'lunar'. Cross objectors submitted that there is no
difference between 'lunar month' and a 'month' under Islamic
Law. But the cross objectors did not cite any authority on the
point.The Committee has considered the objections and cross
objections and corrected the answer option to E in the light of
following paragraphs of celebrated commentaries on Muslim
Law:-17 of 32
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CWP No.2822 of 2017 along with 17 connected matters 18'Mulla Principles of MAHOMEDAN LAW' by Sir
Dinshaw Fardunji Mulla, 20th Edition, LexisNexis, Para
257, Pages 334-335 mentions:-"When the marriage is dissolved by divorce, the duration of the iddat if
the woman is subject to menstruation, is three course; if she is not
so subject, it is three lunar months. If the woman is pregnant at the
time, the period terminates upon delivery. When the marriage is
dissolved by death, the duration of the iddat is four months and ten
days."'Mulla Principles of MAHOMEDAN LAW,' by M.
Hidayatullah and Arshad Hidayatullah, LexisNexis, 19th
Edition, Butterworths Wadhwa, Nagpur, Para 257, Page
225 mentions:-"When the marriage is dissolved by divorce, the duration of the iddat if
the woman is subject to menstruation, is three course; if she is not
so subject, it is three lunar months. If the woman is pregnant at the
time, the period terminates upon delivery. When the marriage is
dissolved by death, the duration of the iddat is four months and ten
days."Thus, every month in the context of iddat period cannot be
construed as lunar month. Otherwise these Commentators must not
have used two expressions i.e. 'lunar month' for iddat period of
divorcee and 'month' in the context of widow. It means they were
fully aware of the difference in meaning and the distinction in both
types of months.Further, the following Commentators have not used word lunar
month even in case of divorcee. However, they have used expression
simple 'month' in case of widow. Therefore, it cannot be said 'lunar
month' and 'month' are the same thing as regard iddat period of
divorcee and widow. For this purpose, reference can be made as
under:-Statute-Law relating to Muslims in India by Tahir
Mahmood, 1st Edition, Institute of Objective Studies,
New Delhi - 25, Page 128 mentions:-18 of 32
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CWP No.2822 of 2017 along with 17 connected matters 19"There is a waiting period, iddat, for women before they remarry-for a
widow four months and ten days since her husband's death; for a
divorcee in most cases three menstrual courses since divorce
[rounded off to three months]."'Outlines of Muhammadan Law', by Asaf A.A. Fyzee, 4th Edition,
Para B, Page 108 mentions:-"If consummation of marriage has taken place and the marriage is
dissolved by divorce, the duration of 'idda is three course, or if the
woman is pregnant, till delivery. If the marriage is dissolved by
death, the period of 'idda is four months and ten days or, if the
woman is pregnant, till delivery, whichever is longer."
The expression 'menstrual courses' cannot be said to be exactly
the same thing as lunar month.The reliance placed upon The Muslim Woman (Protection of
Rights on divorce) Act, 1986 is not relevant to the controversy in
hand. Said definition of iddat period in terms of 'lunar month' is
specifically given in reference to divorcee. The same will not be
applicable to the case of widow which as is separately and
distinctly stated by the learned Commentator on Muslim Law.
Reliance placed upon the Muslim Personal Law (Shariat)
Application Act, 1937, by some objectors is also found to be out of
place. There is no dispute with the proposition that Muslim are
governed by Muslim Personal Law (Shariat) in cases of marriage
in view of the Muslim Personal Law (Shariat) application Act,
1937. But the said Act does not codify what is Shariat. Even
Muslim Law regarding marriage of widow is nowhere codified. To
decipher as to what is Shariat rule regarding iddat period of
widow, one has to turn to the Commentaries on Muslim Law and
the reliance placed on Mulla's Principles of Mahomodan Law
cannot be faulted.Thus, there is no reason to change the final answer option.
Our decision -
In this case however, the Committee appears to have unnecessarily given in
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CWP No.2822 of 2017 along with 17 connected matters 20to the objections/counter objections raised against the original proposed
answer 'A'. We say so for the reason that notwithstanding the position that
Mohammedan Law is by and large un-codified, yet there can be no
controversy on the position that the Calendar as applicable to the Muslims
in the matter of their Personal Law must have to be in confirmity with the
Islamic principle according to which a 'month' must have to mean only a
'Lunar month'. There is no conflict on this point in the views of the various
jurists. Further, considering that the underlying purpose behind the concept
of 'Iddat' is to protect legitimacy of a child born to a Muslim woman after
termination of her marriage, so the relevant prescribed duration of 'Iddat'
would apply depending upon the way in which the marriage has terminated,
such as by way of divorce, or death of the husband. Undoubtedly, in case of
death it is accepted that the period extends to 'Four months and Ten days', if
the child is not born in the meantime, and the term 'month' in such situation
would necessarily have to mean a 'Lunar month'. We therefore, find no
ambiguity from various given optional answers to this question in holding
for option 'A' which mentioned 'Four lunar months and Ten days', which
was actually correct and had been rightly depicted as such in the original
proposed Answer Key. There could have been some scope for confusion if a
separate optional answer of 'Four months and Ten days' was mentioned in
any of the remaining options. But that is not the actual case here. Therefore,
we find no justification in the High Court's decision to change the answer
from the original proposed 'A' to 'E'. Consequently, marking to all the
candidates in relation to this question ought to be done by treating option 'A'
as the correct answer.
8 C) Question No. 65
According to Section 52 of Indian Penal Code, 1860, nothing is
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CWP No.2822 of 2017 along with 17 connected matters 21said to be done or believed in good faith which is done or believed
without _.a. due care or diligence b. due attention or
bonafide
c. due care or attention d. due diligence or
bonafide
e. None of these
Legal Position under Indian Penal Code52. "Good faith". - Nothing is said to be done or believed in
"good faith" which is done or believed without due care and
attention.Proposed Answer Key CObjections and Cross Objections:-
Answer(s) suggested by Objector(s)/ Cross Objector(s) EAnswer option C was changed to correct answer option E
because the correct answer as per Section 52 of Indian Penal
Code was 'due care and attention' not 'due care or attention'.
The expression 'or' cannot be considered equivalent
expression 'and'. Both the expressions convey different sense of
the answer.Therefore, the correct answer to the aforesaid question was
rightly changed to 'E'.Our decision -
Here also, we are in agreement with the explanation of the Respondents that
the expression due care' or' attention cannot be considered exactly
equivalent to due care 'and' attention as laid down in the definition of
"good faith" in terms of Section 52 of the IPC. Therefore, there is no
impropriety in the subsequent change of the original proposed answer 'C' to
'E' by the Respondents.
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CWP No.2822 of 2017 along with 17 connected matters 228D) Question No. 71
Non-registration of marriage under section 8 of Hindu
Marriage Act, 1955:-• invalidates the marriage and calls for imposition of penalty
• does not invalidate the marriage but calls for imposition of
penalty
• neither invalidates the marriage nor calls for imposition of
penalty
• makes the marriage voidable
• None of these
(Legal Position under Hindu Marriage Act) -Registration of Hindu marriages .(1) For the purpose of facilitating the
proof of Hindu marriages, the State Government may make [rules]
providing that the parties to any such marriage may have the particulars
relating to their marriage entered in such manner and subject to such
conditions as may be prescribed in a Hindu Marriage Register kept for the
purpose.
(2) Notwithstanding anything contained in sub-section (1), the
State Government may, if it is of opinion that it is necessary or
expedient so to do, provide that the entering of the particulars
referred to in sub-section (1) shall be compulsory in the State or
in any part thereof, whether in all cases or in such cases as may
be specified, and where any such direction has been issued, any
person contravening any rule made in this behalf shall be
punishable with fine which may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State
Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be
open for inspection, and shall be admissible as evidence of the
statements therein contained and certified extracts there from
shall, on application, be given by the Registrar on payment to him
of the prescribed fee.22 of 32
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CWP No.2822 of 2017 along with 17 connected matters 23(5) Notwithstanding anything contained in this section, the
validity of any Hindu marriage shall in no way be affected by the
omission to make the entry.Proposed Answer Key CObjections and Cross Objections:-
Answer(s) suggested by Objector(s)/ B, D, question not clear,
Cross Objector(s) AOriginal answer option was C which after consideration of
objections and cross objections was changed to B. In the
synopsis, Shri Goel, Advocate submitted that Section 8 (2) makes
the Registration of Marriage compulsory and only in that case
when such direction has been issued, any person contravening
any rule made in this behalf shall be punishable with fine which
may extend to Rs.25/- can be imposed. Therefore, Section 8 itself
does not call for imposition of penalty. As regards validity of the
marriage there is no dispute.Considered. Section 8 (2) provides that where registration of
marriage is made compulsory, any person contravening the
said rule shall be punishable with fine which may extend to 25/-
rupees. Further, Section 8 (5) provides that failure to get the
marriage registered will not affect its validity.
Further, in the PCS(JB) Preliminary Examination 2011 same
question with same answer options and in the same format was
asked at Serial No.102. High Court approved and prepared the
result treating the correct answer option as B which is the same
in this question as B.Therefore, the final answer key option B is correct."
Our decision -As can be seen from the bare perusal of Section 8(2) of the Hindu Marriage
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CWP No.2822 of 2017 along with 17 connected matters 24Act, a fine of Rs.25/- has been prescribed as punishment in the event of
contravention of any rule made by a State Government regarding
compulsory registration of Hindu Marriages. As such, the original proposed
answer (C) which stated that non-registration of such marriage under
section 8 neither invalidates the marriage nor calls for imposition of (any
penalty), is therefore, wrong on the face of it. Consequently, subsequent
change of the answer from 'C' to 'B' by the Respondents is certainly in order.
8D) Question No. 68
Who started Sarvodaya Movement?
a. Mahatma Gandhi b. J P Narayan
c. Vinoba Bhave d. Bhagat Singh
e. None of these
Proposed Answer Key CObjections and Cross Objections:-
Answer(s) suggested by Objector(s)/ Cross Objector(s) B, AProposed answer option was C (Vinoba Bhave) which after
consideration of objections and cross objections was changed
to A (Mahatma Gandhi). In the synopsis, Shri Goel, Advocate
has relied upon observation of Dr. Usha Thakkar and Dr.
Shubhangi Rathee to insist that Sarvodaya movement was
started by Vinoba Bhave and not by Mahatma Gandhi. The
quoted observations of Dr. Usha Thakkar and Dr. Shubhangi
Rathee do not indicate that the movement was infact started by
Vinoba Bhave. Rather it is stated that Sarvodaya ideals have
lasted well beyond the life of Mahatma Gandhi and carried
forward by Vinoba Bhave etc. At the time of change of option,
the Committee has considered the Article 'Gandhiji and
Sarvodaya' appearing on the official website of the Gandhi
Research Foundation i.e. http://www .24 of 32
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CWP No.2822 of 2017 along with 17 connected matters 25gandhifoundation.net/about%20 gandhi7.htm where it has
been clearly mentioned in the first line that "Sarvodaya is
Gandhiji's most important social political movement."
Further, an article of S. Narayansamy titled 'Sarvodaya
Movement - A Critical Analysis' published in Journal of
Extension and Research Vol.III Nos.1 2 Jan, 2001 of
Gandhigram Rural Institute is available on thepdf/articles/sarvodayamovement.pdf - an official website
where in second para he categorically stated, "The
foundations of the sarvodaya movement have been firmly laid
by Gandhi based on the principles of truth, non-violence and
love all of which have eternal value, Success of any movement
depends on its leadership."In view of the clear cut authoritative sources mentioned above.
The final answer Option-A is correct. For the kind perusal of
this Hon`ble Court, the literature and various other articles
available online as also the official website of the Gandhi
Research Foundation supporting the stand of the Answering
Respondent that the Sarvodaya Movement was started by
Mahatma Gandhi is being annexed herewith as Annexure R/1.
Our decision -This question does not involve any application or interpretation of Law but
seeks to test the candidates' general awareness/knowledge. Interestingly in
this case, the original proposed answer of the Committee itself was option
'C', which was subsequently changed to 'A'. To defend this decision, the
Committee has quoted from a particular Article appearing on the Official
Website of the "Gandhi Research Foundation". From their side, the Writ
Petitioners have also placed ample material in the form of old Articles,
publications and Literature to assert that the correct answer would actually
have been 'C' as initially proposed by the Respondents themselves. We are
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CWP No.2822 of 2017 along with 17 connected matters 26of the opinion that this is a needlessly controversial question and certainly
does not go about testing a candidate's 'analytical ability' in the same
fashion as in case of a question involving Law. In the given circumstances,
we cannot be unmindful of the fact that this particular question legitimately
invites diverse answers depending upon the source from which information
leading to an answer has emanated, since the objectivity otherwise
associated with a codified Law/Statute is not available here. For this reason,
we are of the opinion that in all propriety this potentially controversial
question ought to have been deleted by the Committee to preclude prejudice
to any given section of candidates, more so when only a Preliminary
Screening Test of the candidates was being conducted.
8E) Question No. 91
Choose the correct chronological order (Latest first) of
following cases.• Maneka Gandhi Vs. Union of India
• A.D.M. Jabalpur Vs. S.Shukla
• Indira Gandhi Vs. Raj Narain
• Kesavananda Bharati Vs. State of KeralaAnswer:-
a. IV II III I b. IV I II III
c. III II IV I d. IV III II I
e. None of theseProposed Answer Key D
Objections and Cross Objections:-
Answer(s) suggested by Objector(s)/ Cross Objector E, C, delete the
(s) question26 of 32
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CWP No.2822 of 2017 along with 17 connected matters 27Respondents' Reply -
As per the question, the candidates were supposed to give the correct
chronological order, beginning from the latest case as the first entry
and the earliest pronouncement as the last entry. The above
mentioned cases were decided on the following dates:-S. No. Title of Case Date of Decision
-----------------------------------------------------------------------------
I. Maneka Gandhi v. Union of India 25.1.1978
II. A.D.M. Jabalpur v. S. Shukla 28.4.1976
III. Indira Gandhi v. Raj Narain 7.11.1975
IV. Kesavananda Bharati v. State of Kerala 24.4.1973Thus, correct order was I II III IV and accordingly, Answer 'E' was
the right answer option. Therefore, the representation of Ms. Banni
Khanna, Roll No. 14018 in respect of Question Nos. 65 and 91, in
addition to Question Nos. 22, 27, 55, 58 and 68 was considered by
the Hon`ble Recruitment Committee in the right earnest and rejected.
Our decision -Here again, the analytic ability of the candidate was sought to be tested by
choosing the reverse Chronological order (Latest first) of the four decided
cases. The correct answer in such eventuality would have been 1, 2, 3 and 4
in that order, and it was not in any of the given options. Therefore 'E' i.e.
'None of these' was the right answer and it was correctly changed after
objections.
9) Re: Retained Original Answers (Qs. 18 100) -
9A) "Question No. 18
In which of the following the right of private defence of property
under Indian Penal Code, 1860, does not extend to causing
death?27 of 32
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CWP No.2822 of 2017 along with 17 connected matters 28a. Robbery
b. House breaking by night
c. Mischief giving apprehension of death or grievous hurt
d. Mischief by fire
e. None of these
Respondents' Reply -Legal Position under Indian Penal Code, 1872
103. When the right of private defence of property extends to
causing death - The right of private defence of property extends,
under the restrictions mentioned in Section 99, to the voluntary
causing of death or of any other harm to the wrong-doer, if the
offence, the committing of which, or the attempting to commit
which, occasions the exercise of the right, be an offence of any of
the descriptions hereinafter enumerated, namely:-
First - Robbery
Secondly - House breaking by night;Thirdly - Mischief by fire committed on any building, tent or
vessel, which building, tent or vessel is used as a human
dwelling, or as a place for the custody of property;
Fourthly - Theft, mischief or house-trespass, under such
circumstances as may reasonable cause apprehension that
death or grievous hurt will be the consequence, if such right of
private defence is not exercised.Proposed Answer Key EObjections and Cross Objections:-
Answer(s) suggested by Objector(s)/ Cross Objector D, C
(s)On consideration of objections and cross objections, proposed
answer option E was maintained as correct one. In the
synopsis, it is submitted that option D 'mischief by fire' is of
wider ambit. According to 'thirdly' clause of Section 103 IPC
the right of private defence of property extends to causing28 of 32
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CWP No.2822 of 2017 along with 17 connected matters 29death only in cases of 'mischief by fire' and too in case of any
building, tent or vessel. Unqualified expression 'mischief by
fire' does not convey complete sense. Therefore, right to
causing death in private defence of property does not extend to
the cases of simple 'mischief by fire'.So the correct option is D.
There is no ambiguity either in the question or in the answer
options. Section 103 IPC deals with the entire four situation as
given in the options A to D. There is no scope for confusion in
the option D as there is only one provision under Indian Law
which deals with right of private defence of property
extending to cause death. Had there been more than one
such provisions, the plea of confusion could have carried
some weight. Moreover, a candidate cannot dictate as to what
should be the format of question/answer. Questions are meant
to test the analytical ability of the candidate and therefore
need not be mere reproduction of the bare Act language. The
candidates are supposed to analyze the question in all respects
and choose best answer out of given options which in this
question is only the option E. The submission is not acceptable.
Resultantly, the right answer option E needs no change.Our decision -
As can be seen from the Third situation covered in Section 103 of the IPC,
the right of private defence to the extent of causing death in the event of
'Mischief by fire' in certain surroundings/places is authorised. The logical
answer therefore would have to be 'É' alone since 'Mischief by fire' is
specifically covered as an enabling situation in the statute. Undoubtedly,
Mischief by fire 'inside' a specified building or premises as described in the
3rd situation of Section 103, itself falls within the broad ambit of the
expression 'Mischief by fire' used in answer 'D'. Therefore, the insistence
that the specifications described in the statute by any logic amount to doing
away with the basic and broad ingredient of 'Mischief by fire', in our view
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CWP No.2822 of 2017 along with 17 connected matters 30is a needlessly hair - splitting and far-fetched proposition. We thus find no
impropriety in the answer 'E'.
9B) Question No. 100
Under Section 54 of Indian Evidence Act, 1872 previous bad
character is irrelevant, but becomes relevant if :
• the bad character of a person is itself a fact
• the bad character of a person is itself a fact-in-issue
• the bad character is evidence to a previous conviction.
• Both (b) and (c)
• None of theseRespondents' Reply -
Legal Position under Indian Evidence Act
54. Previous bad character not relevant, except in reply. - In
criminal proceedings the fact that the accused person has a bad
character is irrelevant, unless evidence has been given that he has
a good character, in which case it becomes relevant.
Explanation 1. - This section does not apply to cases in which the
bad character of any person is itself a fact in issue.
Explanation 2. - A previous conviction is relevant as evidence of
bad character.Proposed Answer Key DObjections and Cross Objections:-
Answer(s) suggested by Objector(s)/ Cross B, C, E
Objector(s)In synopsis, it is submitted that question only talks about of the
previous conviction as evidence of bad character, whereas
option C of the question 54 says that bad character is evidence
of a previous conviction which is reverse of the Explanation 2
and moreover it nowhere says that how the previous character
which otherwise is irrelevant would become relevant. The30 of 32
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CWP No.2822 of 2017 along with 17 connected matters 31candidates appearing in a competitive examination having
multiple choice options are expected to choose the best possible
answer and the only the accurate answer in the present
question is D. But the plea is without any substance. Explanation
2 clearly shows the bad character as evidence to a previous
conviction.Therefore, the proposed answer key 'D' is in accordance with
Section 54 of the Indian Evidence Act, 1872 and is the correct
answer."Our decision -
In relation to these questions also, we find no fault in the reasonings of the
Committee in retaining the originally depicted answer as correct. As done in
relation to Question Nos. 22, 65 and 71 earlier, we have likewise
highlighted in Bold Font the relevant reasonings which have convinced us
to come to this conclusion, while considering the Respondents' Submissions
in this regard.
10) For the aforesaid reasons, we find that by and large, the revised Key of
the Respondents uploaded on 7.2.2017 is correct. However, the Question
No. 68 is liable to be deleted, while the original proposed answers in
relation to Questions 27 and 58 are to be retained, and marks awarded to the
candidates in the manner directed by us in relation to these questions.
11) The Writ Petitions are therefore, disposed off with a direction upon the
Respondents to delete Question No. 68 from the Questionnaire / Revised
Answer Key, and to award marks to the candidates in terms of our
observations/directions in relation to Question Nos. 27 and 58, as recorded
in the preceding paragraphs 7A and 8B of this judgment. Consequently a
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CWP No.2822 of 2017 along with 17 connected matters 32fresh list of the candidates qualifying the Preliminary Examination will be
drawn up by the respondents on the basis of such revised marking.
12) We however make it clear that pursuant to these directions, those
candidates who have already been declared qualified to appear at the main
examination, shall not be affected. Only those additional candidates who
reach the score of the last qualified candidate in the original result as a
consequence of such re-marking shall be treated as qualified to so appear at
the main examination. This benefit of being declared qualified after such re-
marking shall be applicable to all candidates irrespective of whether or not
they had approached the Court for not having been declared qualified in the
original result.
(Surya Kant) (Sudip Ahluwalia)
Judge Judge
May 19, 2017
ASWhether speaking/reasoned : Yes/No
Whether Reportable : Yes/No32 of 32
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