CWP No.2943 of 2019 and other connected cases [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.2943 of 2019
Date of decision:13.02.2019
Mahipal Singh and others …Petitioners
Vs.
State of Haryana and others ….Respondents
Coram: Hon’ble Mr. Justice Rakesh Kumar Jain
Hon’ble Mr. Justice Harnaresh Singh Gill
Present: Mr. Vishal Garg Narwana, Advocate,
for the petitioners in CWP No.3287 of 2019.
Mr. Sourabh Goel, Advocate,
for the petitioners in CWP No.2943 of 2019.
Mr. Deepanshu Matya, Advocate,
for the petitioner in CWP No.3407 of 2019.
Mr. Gurjinder Singh Chahal, Advocate,
for the petitioners in CWP No.3609 of 2019.
Mr. Gurinder Pal Singh, Advocate, with
Mr. Kanav Bansal, Advocate, for the petitioner
in CWP No.3655 of 2019.
Ms. Khushbir K. Bhullar, Advocate, ‘
for the petitioner in CWP No.3675 of 2019.
Mr. Piyush Setia, Advocate, for
Mr. Ravish Bansal, Advocate, for the petitioner
in CWP No.3676 of 2019.
Mr. Jatinderpal Singh, Advocate,
for the petitioner in CWP No.3870 of 2019.
Mr. Sandeep Moudgil, Addl. A.G., Haryana.
Mr. H.N.Mehtani, Advocate, and
Mr. Kanwal Goyal, Advocate, for HPSC.
Mrs. Munisha Gandhi, Senior Advocate, with
Mr. Gaurav Chopra, Advocate, for the High Court.
*****
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CWP No.2943 of 2019 and other connected cases [2]
Rakesh Kumar Jain, J. (ORAL)
This order shall dispose of a bunch of 8 writ petitions bearing CWP
Nos.2943, 3287, 3407, 3609, 3655, 3675, 3676 and 3870 of 2019, in which
various issues have been raised by the petitioners. However, for the sake of
convenience, the facts are being extracted from the lead case bearing CWP
No.2943 of 2019, in which the respondents have filed their reply.
In brief, the Haryana Public Service Commission (hereinafter referred to
as the “Commission”) issued an advertisement no.6 of 2016 on 20.03.2017,
inviting applications from the eligible candidates to fill up 109 posts of Civil
Judge (Junior Division) in the cadre of Haryana Civil Services (Judicial
Branch). The category-wise break-up of the aforesaid 109 posts is as under:-
Sr. Category No. of Remarks
No. posts
1. General 49 Out of these posts, 29 posts are
being advertised for the second
time.
2. Scheduled Castes of Haryana 14 All posts are being advertised
for the second time.
3. Backward Classes (A) of 08 Out of these posts, 4 posts are
Haryana being advertised for the second
time.
4. Backward Classes (B) of 05 Out of these posts, 02 posts are
Haryana being advertised for the second
time
5. Economically Backward 08 Out of these posts, 05 posts are
Person in General Category being advertised for the second
time
6. Ex-Servicemen of Haryana 16 Out of these posts, 02 posts are
being advertised for the fourth
time, 04 posts are being
advertised for the third time, 05
posts are being advertised for
the second time.
7. Physical Handicapped persons 09 Out of these posts, 01 post is
of Haryana being advertised for the fourth
time, 01 post is being
advertised for the third time, 03
posts are being advertised for
the second time.
Total 109
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It is provided in the advertisement that selection of the suitable
candidates for appointment in the cadre of Haryana Civil Services (Judicial
Branch) will be made by holding the examination, which shall be conducted in
three stages, namely, (i) Preliminary Examination; (ii) Main Examination, and
(iii) Viva-Voce. The syllabus for preliminary examination was also provided in
para 12 of the said advertisement, which read as under:-
“12. Syllabus for Preliminary Examination: The Preliminary
Examination shall be of objective type with multiple-choice
questions as distinguished from the main written examination which
shall be of subjective/narrative type. The OMR Sheets (Answer
Sheets) will be scanned by Computer. So there is no provision of re-
checking/re-evaluation of OMR Sheets. The question paper for
Preliminary Examination shall be of two hours duration. It shall
consist of 125 questions and each question shall carry 04 marks and
for every wrong answer 0.80 mark shall be deducted. There will,
however, be no negative marking in respect of un-attempted
questions. 5 The objective type multiple-choice question for the
Preliminary Examination shall be from the syllabus for the Main
Examination. The candidate shall be expected to have a general and
basic over view of the main subjects and also the ability to answer
questions on current events of national and international
importance, Indian legal and constitutional history and governance.
The candidate shall also be tested for his analytical skills, reasoning
and aptitude. The standard of the question paper shall be of Law
graduate level. The object of the Preliminary Examination is to short
list the candidates for the Main Examination. No candidate shall be
allowed to appear in the Main Examination unless he/she secured
minimum 150 marks (read 100 marks for all reserved category
candidates) in the Preliminary Examination. The marks obtained in
the Preliminary Examination shall not be counted towards final
result. Candidates equal to 10 times the number of vacancies
advertised, selected in order of their merit in the respective
categories shall become eligible to sit in the Main Written
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CWP No.2943 of 2019 and other connected cases [4]
Examination. However, the number shall be subject to variation. If
two or more candidates at the last number (the number at the end)
get equal marks, then all of them shall be considered eligible to sit in
the Main Examination, warranting the corresponding increase in the
stipulated ratio.”
In continuation of the aforesaid advertisement, the Commission issued a
corrigendum on 27.08.2018, by which the total number of posts were reduced
from 109 to 107 and the category of EBP(G) was abolished and specific notes
were added, which read as under:-
“Note I:- Those candidates who had applied earlier against
Advertisement No. 6 of 2016 published on 20.03.2017
need not to apply afresh. The terms and conditions
regarding eligibility for these candidates shall remain
same as detailed in advertisement published on
20.03.2017.
Note II:- As per new reservation policy of the State Government,
EBP(G) Category is not in existence after 07.12.2017,
Hence, 08 posts reserved for EBP(G) category in
advertisement No. 6 of 2016 published on 20.03.2017
have been released and merged in General/Unreserved
category. The EBP(G) category candidates who had
earlier applied will be considered in the General
Category if they fulfill all eligibility conditions as meant
for General category candidates except fee.”
In response to the aforesaid advertisement, the Commission received
32230 applications. The preliminary examination of the said applicants was
held on 22.12.2018. The question paper of the preliminary examination was set
in the form of four question booklets, to which paper code was given as `A’,
`B’, `C’ and `D’. All the question papers were of 125 questions, carrying four
marks each, maximum 500 marks and time of two hours was allowed to
attempt the said paper. It was made clear to the candidates that they have to
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CWP No.2943 of 2019 and other connected cases [5]
choose the best option out of the options given as answer to a particular
question. The answer key of the examination held on 22.12.2018 was uploaded
on the website of the High Court on 23.12.2018 and a separate notice was given
for the purpose of inviting objections, if any, to the answer key, for which 10
days’ time was provided. Admittedly, 2203 emails were received by the High
Court raising anomalies in the formation of answer options of 91 questions. All
the objections were dealt with by the Recruitment Committee of the High Court
comprising of five Hon’ble Judges and a decision was taken on 11.01.2019 to
delete six questions and revise the answer key of 8 questions. The chart of the
deleted as well as revised questions, which is provided in the reply of the
respondents, is reproduced as under for ready reference:-
“After perusal of objections as detailed in Annexure ‘A’, the
Committee has found anomaly in the formation of answer options of six
questions of Code ‘A’ question paper. The Committee, therefore, resolves
that the following six questions be deleted with the consequences that no
credit or discredit in respect of these questions be given irrespective of the
fact whether these have been attempted or not.
Code ‘A’ Code ‘B’ Code ‘C’ Code ‘D’
Question No. 35 70 80 95
Question No. 53 108 118 8
Question No. 56 121 6 21
Question No. 61 116 1 16
Question No. 100 55 65 80
Question No. 118 13 23 38The Committee also finds certain anomalies in the proposed answer
key in respect of some other questions. The Committee, therefore,
recommends change to the answer options of the following eight
questions:-
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CWP No.2943 of 2019 and other connected cases [6]Code Code Code Code Proposed Proposed
‘A’ ‘B’ ‘C’ ‘D’ Answer change of
Key option
Question No. 3 8 18 33 D A
Question No. 12 27 37 52 C B
Question No. 13 28 38 53 C A
Question No. 39 79 89 104 A C
Question No. 85 105 95 110 A A
Question No. 102 42 52 67 C A
Question No. 111 21 31 46 A B
Question No. 113 23 33 48 B DThereafter, the High Court uploaded the revised proposed answer key on
the website of the High Court on 11.01.2019 again inviting objections upto
10.00 am on 14.01.2019. This time, 407 emails, raising cross-objections were
received and after re-consideration of the matter, the Committee found that
Option `A’ of question No.85 of Question Booklet Code `A’, which originally
appeared in the proposed answer key, would be the right answer. However, the
Committee did not find any substance in rest of the cross-objections and,
therefore, direction was issued to finalize the result. The said decision was
taken on 14.01.2019 and accordingly, the result was declared on 16.01.2019
and the final answer key was uploaded on the website of the High Court on
17.01.2019. It was decided by the Commission to invite 10 times of the
candidates of the available posts in each category, for undertaking the main
written examination, for which different cut off was provided. For example,
there are 75 posts of general category, the Commission has invited 750+14
(total 764) candidates with the cut off 326.40 marks. In the category of
Scheduled Castes, there were 14 posts and accordingly, 140 candidates plus 3
bracketed are invited to undertake the main written examination.
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After the cut off was declared, the present petitions have been filed
which have been clubbed together as the issues involved in all the petitions are
similar. However, the respondents have chosen to file reply in one of the
petitions because in most of the cases, the petitioners have raised the question
of jurisdiction of the respondents to delete the questions, some questions have
wrongly been deleted without there being any ambiguity, the answer key has
wrongly been changed, some of the questions were out of syllabus and certain
questions require revision, which has not been taken into consideration by the
respondents while deciding their objections filed twice.
We have heard learned counsel for the parties in detail and from their
respective arguments formulate the following four questions for the purpose of
adjudication:-
1. Whether the respondents had the jurisdiction to delete the
questions which were allegedly ambiguous or where there were
more than two correct answers in the answer key and as to
whether with the deletion of the questions, the candidate who had
rightly answered the question has been put to a disadvantage as
against the candidate who had wrongly answered the question for
which he is liable to be penalized by negative marking or that the
candidate who has not attempted the question has got the
advantage?
2. Whether two questions No.28 and 58 in Question Booklet Code
`A’ have been set by the respondents out of syllabus which is
contrary to Clause 12 of the advertisement?
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3. Whether the respondents have erred in revising the answer key of
8 questions despite the fact that the answers are demonstrably and
palpably erroneous?
4. Whether the questions disputed by the petitioners also require
revision at the hands of the respondents because the final revised
answer key of the said questions also are demonstrably erroneous
and escaped the notice of the Recruitment Committee?
In regard to the first question, Shri Sourabh Goel, learned counsel
appearing on behalf of one of the petitioners, has submitted that the
respondents have not referred to any rule which permits deletion of an
ambiguous or defective question, rather the proper course should have been for
the candidates to have applied to the Court for such recourse. In support of his
submissions, he has relied upon a judgment of the Supreme Court rendered in
the case of Guru Nanak Dev University vs. Saumil Garg, (2005) 13 SCC
749.
In this regard, learned senior counsel appearing on behalf of the
respondents has submitted that all the deleted questions were either ambiguous
or were having more than one correct answers or serious spelling mistake,
whereas in the question booklet, it has been specifically mentioned as one of
the instructions that the candidate/examinee has to choose one of the best
answer. To support her submissions, learned counsel for the respondents has
relied upon the following decisions:-
1. Ran Vijay Singh and others vs. State of U.P. and others, 2018
AIR (SC) 52;
2. Richal Ors. Etc. Etc. vs. Rajasthan Public Service
Commission Ors. Etc. Etc., 2018(2) S.C.T. 773;
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CWP No.2943 of 2019 and other connected cases [9]
3. Varun Chandiok vs. Haryana Public Service Commission and
another, 2015(3) S.C.T. 826; and
4. Monika Goyal and others vs. State of Punjab and others,
2017(3) SCT 289.
Learned senior counsel for the respondents has submitted that in Ran
Vijay Singh’s case (supra), the dispute was in regard to re-evaluation of the
disputed questions and re-examination of the answer sheets. In the said case,
Hon’ble the Supreme Court has laid down certain conclusions, which read as
under:-
“….(i) If a statute, Rule or Regulation governing an examination
permits the re-evaluation of an answer sheet or scrutiny of an
answer sheet as a matter of right, then the authority conducting
the examination may permit it; (ii) If a statute, Rule or
Regulation governing an examination does not ermit re-
evaluation or scrutiny of an answer sheet (as distinct from
prohibiting it) then the Court may permit re-evaluation or
scrutiny only if it is demonstrated very clearly, without any
“inferential process of reasoning or by a process of
rationalization” and only in rare or exceptional cases that a
material error has been committed; (iii) The Court should not at
all re-evaluate or scrutinize the answer sheets of a candidate – it
has no expertise in the mater and academic matters are best left
to academics; (iv) The Court should presume the correctness of
the key answers and proceed on that assumption; and (v) In the
event of a doubt, the benefit should go to the examination
authority rather than to the candidate.”
She has further referred to para 31 of the said judgment to contend that
the Supreme Court has considered the process of deletion as one of the ways
out and the exact language used by the Supreme Court is that “this Court has
shown one way out of an impasse – exclude the suspect or offending question”.
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In Richal’s case (supra), Hon’ble the Supreme Court was also dealing
with the scope of judicial review of opinion of the subject expert. Learned
counsel for the respondents has pressed paras 24 and 25 of the said judgment,
which read as under:-
“24. One of the submissions raised by the appellants is that marks of
deleted questions ought not to have been redistributed in other
questions. It is submitted that either all the candidates should have
been given equal marks for all the deleted questions or marks ought to
have been given only to those candidates who attempted those
questions.
25. The questions having been deleted from the answers, the
question paper has to be treated as containing the question less the
deleted questions. Redistribution of marks with regard to deleted
questions cannot be said to be arbitrary or irrational. The
Commission has adopted a uniform method to deal with all the
candidates looking to the number of the candidates. We are of the
view that all the candidates have been benefited by the
redistribution of marks in accordance with the number of correct
answers which have been given by them. We, thus, do not find
any fault with redistribution of marks of the deleted marks. The
High Court has rightly approved the said methodology.”
In Varun Chandiok’s case (supra), the judgment relied upon by the
counsel for the petitioners in Guru Nanak Dev University’s case (supra) has
been referred to in extenso and the following observations have been made:-
7. In Guru Nanak Dev University’s case (supra), the Punjab
Medical Entrance Test conducted by the appellant-University was
subject matter of consideration. The writ petitions were filed before this
Court by some of the candidates raising a grievance that the key
answers in respect of 21 questions were incorrect. The High Court
appointed the Central Board of Secondary Education (CBSE) to
examine the correctness of key answers. The report was submitted to
the effect that 10 key answers out of 21 were incorrect. Thereafter, the
High Court directed that key answers in respect of 200 questions10 of 57
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CWP No.2943 of 2019 and other connected cases [ 11 ]deserves to be re-examined without cancelling the entire Entrance Test.
It was ordered that the majority view of the Committee appointed by
the High Court would be the basis of the revised/correct key answers.
In an appeal, the Hon’ble Supreme Court sought report from the CBSE
as well as from the Delhi University on the correctness of 10 key
answers. The Court found that out of such questions, 8 questions are
demonstrably erroneous, whereas in respect of 2 questions, benefit of
doubt as per law well settled has to go in favour of the examining body.
The Hon’ble Supreme Court directed that the key answers of such
questions should be re-examined by the University in the light of the
reports of the CBSE and the Delhi University.
8. The Court also found that 7 questions are so vague as that they
are incapable of having a correct answer. The University has given
credit to all the students, who had participated in the Entrance Test.
Such course was not found to be proper. Having said so, the Court
found that the reasonable procedure would be to give credit only to
those, who attempted such questions or some of them. The University
was directed to revise the result accordingly.
9. We do not find that the said judgment provides any assistance to
the arguments raised. The action of the University in giving credit to all
the students, whether they have attempted the questions or not, was
found to be unjustified. In the present case, the examining body has
taken a conscious decision that credit or discredit of such questions
shall not be given to any student irrespective of the fact whether a
student has attempted such questions or not. Therefore, all students
have been assessed on the basis of 120 questions rather than on the
basis of 125 questions. Numerous eventualities can be conceived as a
result of such decision; such as, a candidate, who has answered the
questions correct, has been deprived of the marks, whereas a candidate,
who has not understood the questions correctly and not attempted the
same or attempted wrongly, would stand to benefit.
10. In a writ petition, we are not to examine the numerable
circumstances, which may ensue as a result of deletion of such
questions. As a part of judicial review, the jurisdiction of this Court is
to examine the decision making process. Whether the decision making
process of deleting the questions is so arbitrary, unreasonable or
irrational that it cannot be sustained. The examining body is the most
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CWP No.2943 of 2019 and other connected cases [ 12 ]
suitable to decide, whether such questions are vague or the options are
incorrect or not possible. Such decision of the examining body has to
be respected. The decision of the examining body that questions need
to be deleted cannot be said to be arbitrary, unreasonable or irrational,
which may warrant interference by this Court in exercise of its writ
jurisdiction.
11. We find that the argument of learned counsel for the petitioner
to be contradictory, when the petitioner seeks deletion of three
questions i.e. 78, 83 125. Again, whether the question should be
deleted or not depends upon the opinion of the examining body. The
decision of the examining body to delete some questions or not to
delete other questions cannot be said to be violative of any principle of
natural justice or arbitrary or irrational, which may warrant interference
in any manner.”
In Monika Goyal’s case (supra) also, this Court was dealing with the
correctness of the answer key in regard to the preliminary examination held for
the selection in the cadre of Punjab Civil Services (Judicial Branch). In the
said case, question No.55 was challenged on the ground that it has wrongly
been deleted. In this regard, the Court has recorded the following
observations:-
“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 the12 of 57
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CWP No.2943 of 2019 and other connected cases [ 13 ]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 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)/ C, D, delete the question
Cross Objector(s)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 clause 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
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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
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.”
And ultimately the decision has been taken that there is no impropriety
in deletion of the questions.
We have heard learned counsel for the parties in respect of the first
question in detail and are of the considered opinion that the law has already
been settled by the Supreme Court in Ran Vijay Singh’s case (supra) to the
effect that “the entire examination process does not deserve to be derailed only
because some candidates are disappointed or dissatisfied or perceive some
injustice having been caused to them by an erroneous question or an erroneous
answer. All candidates suffer equally, though some might suffer more but that
cannot be helped since mathematical precision is not always possible. This
Court has shown one way out of an impasse – exclude the suspect or offending
question”.
Similar is the view expressed by the Supreme Court in Richal’s case
(supra) wherein it has been held that “the questions having been deleted from
the answers, the question paper has to be treated as containing the question
less the deleted questions”. In the said case, the matter was pertaining to the
redistribution of marks of the deleted questions.
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In Varun Chandiok’s case (supra), this Court, while referring to the
case of Guru Nanak Dev University’s case (supra), has observed that
“numerous eventualities can be conceived as a result of such decision; such as,
a candidate, who has answered the questions correct, has been deprived of the
marks, whereas a candidate, who has not understood the questions correctly
and not attempted the same or attempted wrongly, would stand to benefit”. It
has been further held that “the examining body is the most suitable to decide,
whether such questions are vague or the options are incorrect or not possible.
Such decision of the examining body has to be respected. The decision of the
examining body that questions need to be deleted cannot be said to be
arbitrary, unreasonable or irrational, which may warrant interference by this
Court in exercise of its writ jurisdiction”.
In the present case also, we are of the considered opinion that the
examining body has not acted arbitrarily or irrationally at the time of deleting
the questions because it has been found that the deleted question carried more
than one correct answer, whereas the examinees have to choose only one
answer. The first question is, therefore, decided against the petitioners and in
favour of the respondents.
At this stage, learned counsel for the petitioners have referred to a
decision of the Delhi High Court rendered in the case of Anjali Goswami
Ors. vs. Registrar General, Delhi High Court, W.P.(C) No.963 of 2019,
decided on 30.01.2019 to contend that in cases where more than one correct
answer exists, the Court has ordered for awarding marks for choosing both the
answers in the said case.
We have considered the judgment relied upon by the counsel for the
petitioners but the judgment rendered by this Court in Varun Chandiok’s case
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(supra) has to be followed in which it has been held that until and unless the
decision is arbitrary, unreasonable or irrational, it would not warrant
interference by this Court in exercise of its writ jurisdiction.
Now, we would advert to the argument of the petitioners about
correctness of the decision of the respondents in deletion of certain questions.
It may be noticed that we have picked up the questions from Question Booklet
Code `A’ and are referring to question Nos.35, 53, 100, 118, 56 and 61. The
initial answers given to all the aforesaid questions were `A’, `D’, `B’, `A’, `B’
and `E’ respectively but at the time of re-consideration, on account of
objections received from the petitioners and other candidates, it has been found
that certain questions were carrying more than one correct answers, i.e. `A’
`E’ in question No.35, `B’ `C’ in question No.53, `B’ `E’ in question
No.100 and `B’ `D’ in question No.118, whereas in question No.56, there
was erroneous spelling of Option `B’ and in question No.61, all the options
were found to be correct and, thus, the said question was deleted. The
respondents have given justification in their reply about deletion of the
aforesaid questions, which is reproduced as under:-
“A) Question No. 35
“35. Which of the following is not a decree?
A. Dismissal in default.
B. Rejection of a plaint
C. Both (a) and (b)
D. Neither (a) nor (b)
E. Only (a)”
As per Section 2(2) of the Code of Civil Procedure, 1908 while
rejection of a plaint is deemed to be a decree, a dismissal in default is
specifically excluded from the definition of a ‘Decree’ as per Section
2(2) CPC. Thus, the above mentioned question had two credit options
i.e. ‘A’ and ‘E’. The contention of the Petitioners that correct should be
given to the candidates who opted for either of two is correct is16 of 57
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CWP No.2943 of 2019 and other connected cases [ 17 ]incorrect for the reason that the examination carries negative marking
and any candidate, while exercising reasonable diligence and finding
more than one correct options, would avoid attempting such a question.
Consequently, a number of candidates might not have attempted such
questions and thus, in order to avoid any prejudice being caused to any
candidate, a conscious decision was taken to DELETE this question.
Hence, Question No. 35 was DELETED.
B) Question No. 53
“53. In case of specific performance of part of contract the purchaser
A. May not relinquish claim to further performance of the
remaining part of the contract and has no right to compensation
B. May relinquish claim to further performance of the remaining
part of the contract and has right to compensation
C. Specific performance of part of contract not possible
D. All the above
E. None of the above”
Both options ‘B’ and ‘C’ were correct. Hence applying the reasoning
given by the Answering Respondent in response to Question No. 35, as
aforesaid, mutatis mutandis to the instant question, the same was
DELETED.
C) Question No. 100
“100. Who among the following is not entitled to claim maintenance
under Section 125 Cr. P.C.
A. Divorced wife so long as the does not marry
B. Unmarried sister
C. Adoptive mother
D. Illegitimate minor child
E. Concubine"Both options 'B' and 'E' were correct. Hence applying the reasoning
given by the Answering Respondent in response to Question No. 35, as
aforesaid, mutatis mutandis to the instant question, the same was
DELETED. The judgment reported as AIR 1965 SC 1970 passed by a
Constitution Bench of the Hon'ble Supreme Court of India is not
applicable or material for determining the correct answer to the
aforesaid question in view of the fact that the Hon'ble Apex Court, in
the aforesaid case, was not determining or considering the entitlement
of a concubine to seeking maintenance under Section 125 Cr. PC. The17 of 57
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CWP No.2943 of 2019 and other connected cases [ 18 ]matter considered by the Hon'ble Apex Court was restricted and
limited to the entitlement of a concubine and her children to seek
maintenance in terms of the mandate of the Hindu Adoptions and
Maintenance Act, 1956.The Hon'ble Supreme Court of India, in its judgment rendered in
Kamala v. M.R. Mohan Kumar, Criminal Appeal Nos. 2368 and 2369
of 2009 decided on 24.10.2018, while examining various judgments
rendered by the Hon'ble Apex Court in the context of Section 125 Cr.
PC, has observed that only such a woman who had cohabitated
continuously with a man for a number of years, leading to a
presumption in law to be drawn in favour of marriage and against
concubinage, would be entitled to seek maintenance under Section 125
Cr. PC. In view of the aforesaid judgment, it is thus evident and clear
that an unmarried sister as well as a concubine were not entitled to
claim maintenance under Section 125 Cr. PC. Consequently, in view
two correct answers to the aforesaid question, the same was
DELETED.D) Question No. 118
"118. A Muslim gift is
A. Compulsorily registrable
B. Not compulsorily registrable
C. Optionally registrable
D. Only the (b) and (c)
E. Not necessary to register"Options 'B', 'C' and 'E' were the correct answers. A Muslim gift is not
compulsorily registrable and consequently, whether it is said that such a
gift is optionally registrable or not necessary to be registered are one
and the same thing. Therefore, on account of existence of more than
one correct answer to the aforesaid question/incomplete phrase, the
above mentioned question was DELETED while adopting the same
yardstick as followed in respect of the Question Nos. 35, 53 and 100.
The detailed reasoning given in response to Question No. 35 in the
instant written statement may kindly be read as a part of the instant
paragraph/question as well.E) Question No. 56
"56. Law of contract creates
A. Jus in rem18 of 57
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CWP No.2943 of 2019 and other connected cases [ 19 ]B. Jus in peronum
C. Ubi jus ibi remedium
D. None of the above"The law of contract creates a right (jus) in personam. Option 'B' was
initially recommended by the Hon'ble Recruitment Committee as being
the correct answer. However, objections regarding this question were
received to the effect that the phrase 'jus in peronum' (sic 'for
personum') is incorrect as the word 'personum' has been incorrectly
written as 'peronum'; as there was option 'D' i.e. none of the above,
which is indicative of the fact that the remaining answer/options in this
question could be incorrect. The candidates are not supposed to
interpolate or extrapolate in the options of their own. They are bound to
consider the option as such. Thus, in view of the reasonable possibility
of many candidates answering option 'D' instead of option 'B' in view
of the mistake in the spelling of the word which had been written as
'peronum' in all the sets of question papers, the Hon'ble Recruitment
Committee, in order to avoid any prejudice being caused to any of the
candidates, DELETED this question.R Question No. 61
"61. Match the following person in list-I with their achievements in
List-II
List-I List-II
a. Rajkumari Amrit Kaur i. First woman Chief Minister
b. Leila Seth ii. First woman High Court Judge
c. Sucheta Kriplani iii. First woman Ambassador
d. C.B. Muthamma iv. First woman Central MinisterA. a-iii; b-i; c-ii; d-iv
B. a-iv; b-ii; c-iii; d-i
C. a-iii; b-iv; c-i; d-ii
D. a-ii; b-iv; c-iii; d-i
E. a-iv; b-ii; c-i; d-iii
The aforesaid question was deleted as none of the options gave the
correct answer. Justice Leila Seth was the First woman Chief Justice of
any High Court in India and not the First woman High Court Judge in
India. Justice Anna Chandy, in fact, was the First woman in India to
become High Court Judge when she was elevated as a Judge of the19 of 57
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CWP No.2943 of 2019 and other connected cases [ 20 ]Hon'ble Kerala High Court on 9.2.1959 and held office till 5.4.1967.
Thus, as none of the options gave the correct answer, the aforesaid
question was DELETED."Learned counsel for the petitioners, while referring to question No.35,
has submitted that although the respondents have alleged that there are two (`A'
`E') correct answers but as per Section 2(2) of the Code of Civil Procedure,
1908, there are many other circumstances in which there would not be a decree.
In this regard, learned counsel for the respondents has submitted that the
form of the question has to be read in order to find out the answer and the sine
qua non was that the examinee has to find out only one correct option amongst
the options given.
We are in agreement with the explanation given by the
respondents that the Option `A'- "dismissed in default" is the right answer
because a suit/case dismissed in default cannot be a decree and at the same time
Option `E', which also says the Option `A', should not have been there.
Therefore, because of this confusion, which has been crept in, the question
itself has rightly been deleted by the respondents.
Insofar as question No.53 is concerned, the initial answer given by the
respondents was Option `D', i.e. all the circumstances mentioned in Options
`A', `B' and `C', but on reconsideration, it has been found that the Options `B'
`C' both are correct answers and in this regard, learned counsel for the
respondents has drawn the attention of this Court to Section 12 of the Specific
Relief Act, 1963 (hereinafter referred to as the "Act'), which reads as under:-
"12. Specific performance of part of contract.--(1) Except as
otherwise hereinafter provided in this section the court shall not direct
the specific performance of a part of a contract.(2) Where a party to a contract is unable to perform the whole of his
part of it, but the part which must be left unperformed by only a small20 of 57
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CWP No.2943 of 2019 and other connected cases [ 21 ]proportion to the whole in value and admits of compensation in money,
the court may, at the suit of either party, direct the specific performance
of so much of the contract as can be performed, and award
compensation in money for the deficiency.(3) Where a party to a contract is unable to perform the whole of his
part of it, and the part which must be left unperformed either-(a) forms a considerable part of the whole, though admitting
of compensation in money; or(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but
the court may, at the suit of other party, direct the party in
default to perform specifically so much of his part of the
contract as he can perform, if the other party-(i) in a case falling under clause (a), pays or has paid
the agreed consideration for the whole of the
contract reduced by the consideration for the part
which must be left unperformed and a case falling
under clause (b), 2[pays or had paid] the
consideration for the whole of the contract
without any abatement; and(ii) in either case, relinquished all claims to the
performance of the remaining part of the contract
and all right to compensation, either for the
deficiency or for the loss or damage sustained by
him through the default of the defendant.(4) When apart of a contract which, taken by itself, can and ought to
be specifically performed, stands on a separate and independent footing
from another part of the same contract which cannot or ought not to be
specifically performed, the court may direct specific performance of the
former part.Explanation: For the purposes of this section, a party to a contract shall
be deemed to be unable to perform the whole of his part of it if a
portion of its subject matter existing at the date of the contract has
ceased to exist at the time of its performance."21 of 57
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CWP No.2943 of 2019 and other connected cases [ 22 ]It is submitted that Section 12(1) of the Act deals with Option `B' and
Section 12(2) of the Act deals with Option `C' but the knowledge of the entire
Section 12 deals with the Option `A'.
We have considered the explanation given by the learned counsel for the
respondents and have found it to be plausible, therefore, this question has also
rightly been deleted by the respondents.
Insofar as question No.100 is concerned, the initial answer given was
Option `B', i.e. unmarried sister, but the respondents have given explanation
that since Options `B' `E' both were correct, therefore, the said question was
deleted. In this regard, reference could be had to the explanation of the
respondents given in the reply, which has already been reproduced here-in-
above. After going through the reply given by the respondents, we are of the
considered opinion that there is no error in it.
Insofar as question No.118 is concerned, the initial answer given by the
respondents was Option `A' but ultimately it has been found that there were
more than two correct answers to this question, i.e. Options `B, `D' and `E'.
Since there were three correct answers available in the given options, therefore,
after thoroughly considering all the options, the respondents found that in view
of the mistake having been committed by the examiner in giving three correct
options for the said question, the irresistible conclusion taken was to delete the
said question.
We do not find any error in this regard in the decision of the
respondents.
Insofar as question No.56 is concerned, much arguments have been
addressed by the learned counsel for the parties in this regard. The said
question has been deleted because Option `B' was mentioned as "jus in
22 of 57
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CWP No.2943 of 2019 and other connected cases [ 23 ]peronum". Counsel for the respondents has given the reasoning that there is no
phrase as "jus in peronum". It is submitted that the options given in this
question are all of Latin words and since there is no such word given in Option-
B "jus in peronum" and the last Option `D' "none of the above" was also there,
therefore, they have to delete the entire question.
Counsel for the petitioners has referred to question No.62 and question
No.79 of Question Booklet Code `A', which reads as under:-
"62. __ won the "first justice prize" from India who is also
named as "Living Legend of Law" by the International Bar
Association?A. Krishna Iyer, retired Judge, Supreme Court of India
B. Fali S. Nariman, Senior Advocate
C. Kapil Sibal, Senior Advocate
D. None of the above79. A child who doesn't understand or distinguish between the right
and the wrong is called as dolyincapax. This is defined under which
section of the IPC, 1860.A. Sec. 86
B. Sec. 87
C. Sec. 84
D. Sec. 83
E. Sec. 82"According to the petitioners, there is a confusion in both the questions as
in question No.62, the examiner has set up the word "first justice prize",
whereas there is no "first justice prize" rather it is the "justice prize". In this
regard, learned counsel for the respondents has submitted that the question has
to be read as a whole and not in parts because the examiner has set up the
question to ask as to who has won the "first justice prize" from India who is
also named as the "Living Legend of Law" by the International Bar
Association. It is further submitted by the respondents that since there is only
23 of 57
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CWP No.2943 of 2019 and other connected cases [ 24 ]one Indian who has won the "justice prize", namely, Sh. Fali S. Nariman,
Senior Advocate and, therefore, this question did not deserve deletion.
We are in agreement with the contention of the learned counsel for the
respondents in this regard.
Counsel for the petitioners have referred to the decision of this Court
rendered in Monika Goyal's case (supra) in which there was a typographical
error in question No.27, which reads as under:-
"Question No.27
Which amongst the following ƒ 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"In regard to the aforesaid typographical error, the reply given by the
respondents may be looked into and also the decision of this Court, which reads
as under:-
"Respondents' 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 attempted24 of 57
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CWP No.2943 of 2019 and other connected cases [ 25 ]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 marks have been awarded or
deducted. Accordingly, the Recruitment Committee found to change
the 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 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) who25 of 57
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CWP No.2943 of 2019 and other connected cases [ 26 ]had chosen an incorrect option, to preclude any prejudice to anyone due
to the visible printing error."But there were four booklets `A', `B', `C' and `D' and the
mistake/misprinting only occurred in booklet `A' and there was no mistake in
booklets `B', `C' and `D'. Consequently, there were three quarters (3/4th) of
the candidates whose booklets had no mistake with regard to that question,
therefore, in case the said question is deleted, then it would prejudicially affect
the interest of those candidates.
Thus, the reasoning given by the respondents in this regard is accepted
because in this case, question No.56 is the same in all the four booklets.
Insofar as question No.79 is concerned, counsel for the petitioners have
submitted that the word "dolyincapax" has been wrongly spelt because the
actual spelling is "doli incapax", whereas in the said question, the word has
been spelt as "dolyincapax".
In this regard, learned counsel for the respondents has submitted that
change of an alphabet (i) in a latin word cannot change the whole complexion
of that word, which can easily be understood by a student of law because the
word "doli incapax" has a reference in regard to Section 82 of the IPC which
can easily be understood.
We are totally in agreement with the contention of the learned counsel
for the respondents in this regard.
Insofar as question No.61 is concerned, initially the answer was given as
Option `E' but ultimately it has been found that all the options were incorrect
because Justice Leila Seth was the first woman Chief Justice of any High Court
in India and not the first woman High Court Judge in India and in fact Justice
Anna Chandy was the first woman in India to become a High Court Judge
when she was elevated as a Judge of the Kerala High Court. Thus, none of the
26 of 57
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CWP No.2943 of 2019 and other connected cases [ 27 ]options given in the question gave the correct answer and the respondents have
rightly chosen to delete that question.
In view of the above, we do not find the action taken by the respondents
of deletion of aforesaid questions to be arbitrary, unreasonable or irrational and,
thus, we answer the first question accordingly.
The second question is in regard to the two questions which, according
to the petitioners, were posed out of the syllabus. The said two questions are as
under:-
"Question No.6:
It is mandatory that transfer of an actionable claim can be effected only
by an instrument in writing but it does not have effect on
(A) Negotiable instrument
(B) Arrears of Rent
(C) An amount due under a letter of credit
(D) None of the above
Question No.83
The land of the beneficial enjoyment of which the easementary right
exists is called
(A) Profit-a-pendre
(B) Servient heritage
(C) Dominant heritage
(D) Customery heritage"Learned counsel for the petitioners have sought to argue that question
No.6 has been set down by the examiner from the Transfer of Property Act,
1882 and question No.83 has been set down from the Indian Easement Act,
1882, which are not the part of syllabus. In this regard, they have relied upon
para 12 of the advertisement to contend that it has been categorically mentioned
that "the objective type multiple-choice questions for the Preliminary
Examination shall be from the syllabus for the Main Examination". He has
27 of 57
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CWP No.2943 of 2019 and other connected cases [ 28 ]also referred to the syllabus of the main examination, which is reproduced here-
as-under:-
"12. SYLLABUS FOR MAIN EXAMINATION:
The Main Examination shall consist of six papers, five written and viva voce.
The description of papers and the syllabus shall be as under:-Paper-1 Code of Civil procedure, Punjab Courts Act, 200 Marks
Civil Law-1 Indian Contract Act, Indian partnership Act,
Sale of Goods Act, Specified Relief Act, Indian
Evidence Act and Haryana Urban (Control of
Rent and Eviction) Act, 1973.Paper-II- Hindu Law, Mohammadan Law and Customary 200 Marks
Civil Law-II Law, Law of Registration and Limitation.Paper-III 200 Marks
Indian Penal Code, Criminal Procedure Code
Criminal Law and Indian Evidence Act,
Paper-IV The English paper will be of 200 marks and 200 Marks
English consist of the following:-
1. English Essay (1000-1100 words) 100 Marks
2. Precis 25 Marks
Words and Phrases (Make
3. sentences of 25 Marks
the given words and Phrases)
4. Comprehension 25 Marks
5. Corrections 25 Marks
Paper-V Hindi (in Devnagri Script) 100 Marks
Language
Paper-VI To judge the personal qualities of the candidates. 200 MarksViva- The viva-voce shall relate to the matters of
Voce
general interest and is intended to test the
candidates' alertness, intelligence and general
outlook. it shall be conducted in English.As per the aforesaid syllabus, there were only two papers of Civil Law,
i.e. Paper-I and Paper-II and these two subjects, namely, the Transfer of
28 of 57
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CWP No.2943 of 2019 and other connected cases [ 29 ]Property Act, 1882 and the Indian Easement Act, 1882 are conspicuous by their
absence in both the papers. The question, thus, arose as to whether the
petitioners have been taken by surprise by the examiner by inserting these two
questions in the question paper. Had the questions been inserted from some
subjects other than law, then the matter would have been different but since the
examinees are aspirants to become judicial officers, the said questions have
been asked by the examiner generally to test their legal aptitude. In this regard,
counsel for the respondents has referred to the following part of para 12 of the
advertisement:-
"....The candidate shall be expected to have a general and basic
over view of the main subjects and also the ability to answer
questions on current events of national and international
importance, Indian legal and constitutional history and governance.
The candidate shall also be tested for his analytical skills, reasoning
and aptitude. The standard of the question paper shall be of Law
graduate level...."We are sanguine of the fact that the petitioners, who are appearing in
such a prestigious examination after completing their 5 or 3 years law degree,
must have read all these subjects during their studies and, therefore, these two
questions were not put in regard to the provisions of law but were put generally
to test as to whether the candidates actually have the knowledge of law beyond
the syllabus. Thus, we do not find any error on the part of the respondents in
asking these two questions from the candidates as the said questions are meant
for testing the legal aptitude of the candidates who are aspiring to become
judges and expected to have a general and basic overview of the various
subjects of law and also the ability to answer questions on current events of
national and international importance.
We answer the second question accordingly.
29 of 57
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CWP No.2943 of 2019 and other connected cases [ 30 ]Insofar as the third question is concerned, counsel for the petitioners
have submitted that the respondents have erred in revising the answer key of
three question Nos.111, 18 and 38. They have submitted that earlier, the
answer of these three questions was Options `A', `D' and `C' respectively,
which have been revised to Options `B', `A' and `A' respectively.
Counsel for the petitioners have submitted that the revision of the answer
key is totally wrong. In this regard, it is argued that in question No.111, Option
`A' was correct because the question was put "delay in filing the suit __"
and they have answered it as Option `A" - "can be condoned under Order VII,
Rule 6 C.P.C." and the same answer was initially taken to be correct by the
respondents but later on, it has wrongly been changed to Option `B' - "cannot
be condoned". In this regard, the petitioners have referred to the answer key of
the Himachal Pradesh Judicial Examination, in which the same question was
there and the answer key was Option `A'. They have also referred to a decision
of this Court rendered in the case of Surinder Pal vs. Surinder Pal, RSA
No.5878 of 2014, decided on 21.05.2015, to contend that though it is the duty
of the Court to dismiss a claim as time-barred if it is brought beyond the period
prescribed in the schedule; but limitation may be saved if the plaintiff can bring
himself within one of the exceptions. In this regard, it would be relevant to
refer to Section 3 of the Limitation Act, 1963, which reads as under:-
"3. Bar of limitation.--(1) Subject to the provisions contained in
sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and
application made after the prescribed period shall be dismissed,
although limitation has not been set up as a defence.(2) For the purposes of this Act,--
(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented
to the proper officer;30 of 57
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CWP No.2943 of 2019 and other connected cases [ 31 ](ii) in the case of a pauper, when his application for
leave to sue as a pauper is made; and(iii) in the case of a claim against a company which is
being wound up by the court, when the claimant
first sends in his claim to the official liquidator;(b) any claim by way of a set off or a counter claim, shall be
treated as a separate suit and shall be deemed to have
been instituted--(i) in the case of a set off, on the same date as the
suit in which the set off is pleaded;(ii) in the case of a counter claim, on the date on
which the counter claim is made in court;(c) an application by notice of motion in a High Court is
made when the application is presented to the proper
officer of that court."A close look on the above provision provides that every suit instituted,
appeal preferred, and application made after the prescribed period shall be
dismissed although limitation has not been set up as a defence, which means
that if there is any delay, it cannot be condoned but Order 7 Rule 6 of the CPC,
to which reference has been made by the petitioners, reads as under:-
"Order 7 Rule 6. Grounds of exemption from limitation law.-
Where the suit is instituted after the expiration of the period prescribed
by the law of limitation, the plaint shall show the ground upon which
exemption from such law is claimed.Provided that the Court may permit the plaintiff to claim
exemption from the law of limitation on any ground not set out in the
plaint, if such ground is not inconsistent with the grounds set out in the
plaint."In this regard, counsel for the respondents has submitted that the
question was plain and simple that what would happen in case the suit is filed
with delay and according to the respondents, as per the Limitation Act, 1963, if
the suit is instituted after the prescribed period, then the delay cannot be
condoned. It is further submitted that had the language of the question been
31 of 57
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CWP No.2943 of 2019 and other connected cases [ 32 ]that where the delay in the institution of a suit after expiration of the limitation
can be condoned by invoking exemption of any law, then perhaps the Option
`A' could have been taken into consideration.
We are in full agreement with the contention of the learned counsel for
the respondents and, thus, the objection raised by the petitioners is hereby
rejected.
Question Nos.18 and 38 and the reply given by the respondents in regard
to those questions is reproduced here-as-under for ready reference:-
"Question No. 18
"18. Under Section 145 of Evidence Act, a witness may be contradicted
as to previous statement in writing
A. without proving the same but only after showing the same to the
witness.B. after proving the same may be before showing the same to the
witness
C. after proving the same showing the same to the witness
D. without proving the same and without showing the same to the
witness"The correct answer is option 'A'. Section 145 Evidence Act, 1872 is
unambiguously worded in so far as wherever a witness is sought to be
contradicted with an earlier statement of the in writing, he is required to
be shown those parts of his earlier statement in writing relevant for the
purpose of contradicting him before the said writing can be proved.
Thus, it is not necessary at that stage to prove the earlier statement in
writing before showing the same to the witness. Consequently, where
the aspect of proving the previous statement in writing was to be
deliberated upon or done after showing the relevant portion of the
earlier statement for the purpose of the confronting/contradicting a
witness, the suggestion made by the Petitioner for declaring option 'D'
as the correct answer is legally untenable and the correct answer is
required to be maintained as option 'A'.Question No. 38
"38. In criminal trials, the accused has to establish his plea for the
mitigation or justification of an offence.32 of 57
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CWP No.2943 of 2019 and other connected cases [ 33 ]A. Substantially
B. Beyond reasonable doubt
C. Prima facie
D. None of these"The correct answer is option 'A'. In various judgments rendered by
the Hon'ble Apex Court, the phrase 'preponderance of probability'
which is akin to 'substantially' has been used while observing and
holding that the defence set up by an accused for mitigating or
justifying an offence is required to be examined/weighed on the
touchstone of preponderance of probability in order to assist the Court
to find merit in the reasons and circumstances might have justified the
commission an offence by an accused. Such a plea is required to be
supported by some cogent explanation persuading the Court to test the
same on the avail of whether the prosecution has thereafter been able to
prove the commission of an offence in a pre-planned manner with
criminal intent, beyond all reasonable doubt. Thus, the plea/defence of
the accused needs to be substantial in nature and thus option 'A' is the
correct answer.Insofar as question No.18 is concerned, it relates to Section 145 of the
Indian Evidence Act, 1872. Initially, the answer given by the respondents was
Option `D' that a witness may be contradicted to his previous statement in
writing without proving the same and without showing the same to the witness
but after pondering over again and consideration of the objections received by
the respondents, it was found that the correct answer is Option `A'. In this
regard, counsel for the petitioners have submitted that the words have been
specifically chosen by the legislature in regard to bringing to the notice of a
witness about contradiction in his statement. Section 145 of the Evidence Act,
1872 is reproduced as under:-
"145. Cross-examination as to previous statements in writing.- A
witness may be cross-examined as to previous statements made by him
in writing or reduced into writing, and relevant to matters in question,
without such writing being shown to him, or being proved; but, if it is
intended to contradict him by the writing, his attention must, before the33 of 57
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CWP No.2943 of 2019 and other connected cases [ 34 ]writing can be proved, be called to those parts of it which are to be used
for the purpose of contradicting him."According to the petitioners, the first part of the said provision deals
with the word "showing" and later part deals with the word "attention". In this
regard, counsel for the respondents has submitted that merely the use of word
"attention" would not mean that the document/statement, with which a witness
is intended to be contradicted, cannot be shown to him.
The explanation given in the reply is not such which can be said to be
demonstrably or palpably erroneous and since we do not find any substance in
the arguments raised by the counsel for the petitioners, therefore, the objection
raised by the petitioners in this regard is overruled.
Insofar as question No.38 is concerned, the petitioners have alleged that
in criminal trials, the accused has to establish his plea for mitigation or
justification of an offence prima facie, whereas the respondents have found that
it cannot be prima facie but has to be substantial. In this regard, counsel for
the petitioners have referred to Section 105 of the Evidence Act, 1872, whereas
the counsel for the respondents has referred to a decision of the Supreme Court
rendered in the case of Krishnan vs. State of Tamil Nadu, 2006(3) Crimes
257 and more particularly, referred to paragraph 9 of this judgment, which
reads as under:-
"9. It is now well settled that the onus is on the accused to establish that
his action was in exercise of the right of private defence. The plea can
be established either by letting in defence evidence or from the
prosecution evidence itself, but cannot be based on speculation or mere
surmises. The accused need not take the plea explicitly. He can succeed
in his plea if he is able to bring out from the evidence of the
prosecution witnesses or other evidence that the apparent criminal act
was committed by him in exercise of his right of private defence. He
should make out circumstances that would have reasonably caused an34 of 57
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CWP No.2943 of 2019 and other connected cases [ 35 ]apprehension in his mind that he would suffer death or grievous hurt if
he does not exercise his right of private defence. There is a clear
distinction between the nature of burden that is cast on an accused
under section 105 of the Evidence Act (read with section 96 to 106 of
Indian Penal Code) to establish a plea of private defence and the burden
that is cast on the prosecution under section 101 of the Evidence Act to
prove its case. The burden on the accused is not as onerous as that
which lies on the prosecution. While the prosecution is required to
prove its case beyond a reasonable doubt, the accused can discharge his
onus by establishing a preponderance of probability (vide Partap vs.
State of U.P. (1976 (1) SCC 757); Salim Zia vs. State of UP (1979 (2)
SCC 648); and Mohinder Pal Jolly vs. State of Punjab (1979 (3) SCC30).
In Sekar vs. State [2002 (8) SCC 354], this Court observed : A plea of
right of private defence cannot be based on surmises and speculation.
While considering whether the right of private defence is available to
an accused, it is not relevant whether he may have a chance to inflict
severe and mortal injury on the aggressor. In order to find whether right
of private defence is available or not, the injuries received by the
accused, the imminence of threat to his safety, the injuries caused by
the accused and the circumstances whether the accused had time to
have recourse to public authorities are all relevant factors to be
considered. Whether in a particular set of circumstances, a person acted
in the exercise of the right of private defence, is a question of fact to be
determined on the facts and circumstances of each case. No test in the
abstract for determining such a question can be laid down. In
determining this question of fact, the Court must consider all the
surrounding circumstances. It is not necessary for the accused to plead
in so many words that he acted in self-defence. If the circumstances
show that the right of private defence was legitimately exercised, it is
open to the Court to consider such a plea. In a given case, the Court can
consider it even if the accused has not taken it. If the same is available
to be considered from the material on record.(emphasis supplied).
The above legal position was reiterated in Rizan v. State of
Chhattisgarh [2003 (2) SCC 661]. After an exhaustive reference to
several decisions of this Court, this Court summarized the nature of35 of 57
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CWP No.2943 of 2019 and other connected cases [ 36 ]plea of private defence required to be put forth and the degree of proof
in support of it, thus :"Under Section 105 of the Indian Evidence Act, 1872, the
burden of proof is on the accused, who sets off the plea of self-
defence, and, in the absence of proof, it is not possible for the
court to presume the truth of the plea of self-defence. The court
shall presume the absence of such circumstances. It is for the
accused to place necessary material on record either by himself
adducing positive evidence or by eliciting necessary facts from
the witnesses examined for the prosecution. An accused taking
the plea of the right of private defence is not required to call
evidence; he can establish his plea by reference to circumstances
transpiring from the prosecution evidence itself. The question in
such a case would be a question of assessing the true effect of
the prosecution evidence, and not a question of the accused
discharging any burden. When the right of private defence is
pleaded, the defence must be a reasonable and probable version
satisfying the court that the harm caused by the accused was
necessary for either warding off the attack or for forestalling the
further reasonable apprehension from the side of the accused.
The burden of establishing the plea of self-defence is on the
accused and the burden stands discharged by showing
preponderance of probabilities in favour of that plea on the basis
of the material on record. The accused need not prove the
existence of the right of private defence beyond reasonable
doubt. It is enough for him to show as in a civil case that the
preponderance of probabilities is in favour of his plea."In view of the above, we have found the explanation given by the
respondents to be justified and, thus, this objection is also rejected.
Thus, the 3rd question is answered accordingly.
Insofar as the 4th question is concerned, various other questions have
been brought to the notice of the Court about which they have claimed that the
respondents should have either changed the answer key or deleted the said
questions. The said questions are question Nos.40, 49, 62, 112, 114, 117, 27, 6,
36 of 57
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CWP No.2943 of 2019 and other connected cases [ 37 ]9, 47 and 85. The respondents have given explanation regarding almost all the
questions, which reads as under:-
G) Question No. 40
"40. In 2017, the Supreme Court held that right to privacy is protected
under Article of 21 of the Constitution of India in the context of
A. State surveillance
B. Power of search and seizure
C. Homosexuality
D. Indian biometric identification Scheme"The correct answer is 'D'. The form of question is self-explanatory in the
sense that the candidates were required to answer in what context the Hon'ble
Apex Court rendered its judgment in the year 2017 i.e. Justice K.S.
Puttaswamy (Retd.) Vs. UOI and Others, AIR 2017 SC 4161 holding that the
right to privacy was protected under Article 21 of the Constitution of India.
For this purpose, reference is required to be made to the aforesaid judgment
and the reason behind Constitution of a Nine Judge Bench of the Hon'ble
Apex Court to determine whether Right to Privacy was also protected under
Article 21 of the Constitution of India. The factually narration behind
constitution of the Nine Judges Bench and the underlying reason for the same
were extracted in the lead judgment rendered by Hon'ble Mr. Justice D.Y.
Chandrachud, the relevant paragraphs under the Section 'Reference' are
extracted hereunder:-3. A Bench of three judges of this Court, while considering the
constitutional challenge to the Aadhaar card scheme of the Union
Government noted in its order dated 11 August 2015 that the norms for
and compilation of demographic biometric data by Government was
questioned on the ground that it violates the right to privacy. The
Attorney General for India urged that the existence of a fundamental
right of privacy is in doubt in view of two decisions: the first- M P
Sharma v. Satish Chandra, District Magistrate, Delhi (1954) SCR
2017 ("M P Sharma") was rendered by a Bench of eight judges and the
second, in Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332
("Kharak Singh") was rendered by a Bench of six judges. Each of
these decisions, in the submission of the Attorney General, contained
observations that the Indian Constitution does not specifically protect
the right to privacy. On the other hand, the submission of the37 of 57
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CWP No.2943 of 2019 and other connected cases [ 38 ]Petitioners was that M P Sharma and Kharak Singh were founded on
principles expounded in A K Gopalan v. State of Madras, AIR 1950
SC 27 ("Gopalan"). Gopalan, which construed each provision
contained in the Chapter on fundamental rights as embodying a distinct
protection, was held not to be good law by an eleven-judge Bench in
Rustom Cavasji Cooper v. Union of India, (1970) 1 SCC 248
("Cooper"). Hence the Petitioners submitted that the basis of the two
earlier decisions is not valid. Moreover, it was also urged that in the
seven-judge Bench decision in Maneka Gandhi v. Union of India,
(1978) 1 SCC 248 ("Maneka"), the minority judgment of Justice
Subba Rao in Kharak Singh was specifically approved of and the
decision of the majority was overruled.4. While addressing these challenges, the Bench of three judges of this
Court took note of several decisions of this Court in which the right to
privacy has been held to be a constitutionally protected fundamental
right. Those decisions include: Gobind v. State of Madhya Pradesh,
(1975) 2 SCC 148 ('Gobind"), R Rajagopal v. State of Tamil Nadu,
(1994) 6 SCC 632 ("Rajagopal") and People's Union for Civil
Liberties v. Union of India, (1997) 1 SCC 301 ("PUPCL"). These
subsequent decisions which affirmed the existence of a constitutionally
protected right of privacy, were rendered by Benches of a strength
smaller than those in M P Sharma and Kharak Singh. Faced with this
predicament and having due regard to the far-reaching questions of
importance involving interpretation of the Constitution, it was felt that
institutional integrity and judicial discipline would require a reference
to a larger Bench. Hence the Bench of three learned judges observed in
its order dated 11 August 2015:"12. We are of the opinion that the cases on hand raise far
reaching questions of importance involving interpretation of the
Constitution. What is at stake is the amplitude of the
fundamental rights including that precious and inalienable right
under Article 21. If the observations made in M.P. Sharma
(supra) and Kharak Singh (supra) are to be read literally and
accepted as the law of this country, the fundamental rights
guaranteed under the Constitution of India and more particularly
right to liberty under Article 21 would be denuded of vigour and
vitality. At the same time, we are also of the opinion that the38 of 57
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CWP No.2943 of 2019 and other connected cases [ 39 ]institutional integrity and judicial discipline require that
pronouncement made by larger Benches of this Court cannot be
ignored by the smaller Benches without appropriately
explaining the reasons for not following the pronouncements
made by such larger Benches. With due respect to all the
learned Judges who rendered the subsequent judgments - where
right to privacy is asserted or referred to their Lordships concern
for the liberty of human beings, we are of the humble opinion
that there appears to be certain amount of apparent unresolved
contradiction in the law declared by this Court.13. Therefore, in our opinion to give a quietus to the kind of
controversy raised in this batch of cases once for all, it is better
that the ratio decidendi of M.P. Sharma (supra) and Kharak
Singh (supra) is scrutinized and the jurisprudential correctness
of the subsequent decisions of this Court where the right to
privacy is either asserted or referred be examined and
authoritatively decided by a Bench of appropriate strength."5. On 18 July 2017, a Constitution Bench presided over by the learned
Chief Justice considered it appropriate that the issue be resolved by a
Bench of nine judges. The order of the Constitution Bench reads thus:"During the course of the hearing today, it seems that it has
become essential for us to determine whether there is any
fundamental right of privacy under the Indian Constitution. The
determination of this question would essentially entail whether
the decision recorded by this Court in M.P. Sharma and Ors. v.
Satish Chandra, District Magistrate, Delhi and Ors. - 1950
SCR 1077 by an eight-Judge Constitution Bench, and also, in
Kharak Singh v. The State of U.P. and Ors. - 1962 (1) SCR
332 by a six-Judge Constitution Bench, that there is no such
fundamental right, is the correct expression of the constitutional
position.Before dealing with the matter any further, we are of the view
that the issue noticed hereinabove deserves to be placed before
the nine-Judge Constitution Bench. List these matters before the
Nine-Judge Constitution Bench on 19.07.2017."That further, Part-I of the judgment authored by Hon'ble Mr. Justice S.A.
Bobde also refers to the Aadhaar project and makes reference to the biometric
39 of 57
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CWP No.2943 of 2019 and other connected cases [ 40 ]scheme introduced by the Government of India. Thus, the question being
generic in nature, option 'D' was the correct answer in so far as the 2017
judgment of the Hon'ble Apex Court holding right to privacy as being
protected under Article 21 of the Constitution of India was rendered in the
context of rivaling questions/claims and counter claims in respect of the
constitutional validity of the Biometric Identification Scheme introduced by
the Government of India where the Hon'ble Apex Court was seized of an issue
regarding constitutional validity of such a scheme and whether the same
infringed the Fundamental Right of a Citizen of India under Article 21 of the
Constitution of India. As the aforesaid judgement was rendered by the
Hon'ble Apex Court in the context of the Indian Biometric Identification
Scheme, thus option 'D' was the correct answer.H) Question No. 49
"49. Under Section 6 of the Specific Relief Act, the suit can be
brought
A. A servant
B. A Manager
C. A Tenancy by holding over
D. A trespasser"Option 'C' is the correct answer. As per Section 6 of the Specific Relief Act,
1963 any person who is dispossessed without his consent from immovable
property otherwise than in due course of law, may file a suit to recover
possession thereof within a period of six months from the date of
dispossession. Thus, for agitating a claim in respect of wrongful dispossession,
the person ought to have been in possession of immovable property in the first
place. A mere trespasser is not entitled to claim the remedy under Section 6 of
the Specific Relief Act, 1963 and only a trespasser in settled possession of
immovable property claim seek recourse to the aforesaid remedy. In view of
the judgment passed by the Hon'ble Supreme Court in Rame Gowda (D) By
Lrs v. M. Varadappa Naidu (D) By Lrs. Anr, in Civil Appeal 7662 of 1997,
only a trespasser in settled possession can file the suit under Section 6 of the
Specific Relief Act, 1963. In option 'D', only the word trespasser has been
used and not a trespasser in settled possession and consequently, a mere
trespasser, in the absence of being in settled possession, could legally not
institute a suit under Section 6 of the Specific Relief Act, 1963 as a result
whereof, option 'D' is not the correct answer but, instead, the right option is
'C'.40 of 57
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CWP No.2943 of 2019 and other connected cases [ 41 ]I) Question No. 62
"62__ won the "first justice prize" from India who is also
named as "Living Legend of Law" by the International Bar
Association?A. Krishna Iyer, retired Judge Supreme Court of India
B. Fali S. Nariman, Senior Advocate
C. Kapil Sibal, Senior Advocate
D. None of the aboveOption 'B' is the correct answer. As a matter of fact, whereas Anthony
Gubbay, former Chief Justice of the Supreme Court of Zimbabwe was the first
recipient of the Justice Prize, the first Indian to win the Justice Prize was Mr.
Fali S. Nariman, Senior Advocate and thus option 'B' is the correct answer.
J) Question No. 112"112. Section 3 and Section 14 of Limitation Act are-
A. Both independent and not mutually exclusive
B. Mutually exclusive of each other
C. Neither independent nor mutually exclusive
D. Non of the above
E. Only mutually exclusive"Option 'A' is the correct answer. The reliance placed by the Petitioner on a
judgment rendered by Hon'ble Kerala High Court is misplaced as the said
judgment pertained to a correlation between Sections 5 and 14 of the
Limitation Act, 1963 and not with regard to Sections 3 and 14 of the Act.Section 3 of the Limitation Act, 1963 mandates that every suit instituted,
appeal preferred and application made after prescribed period of limitation
shall be dismissed even if limitation has not been set up as a defence. Section
14 of the Limitation Act, 1963 provides for exclusion of the time spent in
proceedings before a wrong forum from the period of limitation. Thus, Section
3 and 14 are independent where Section 14 has no applicability in the facts of
the case and thus both are independent and operate in different fields. Yet,
wherever an application under Section 14 of the Limitation Act, 1963 has been
filed and warrants adjudication and wherever such an application is found to
be meritorious, the time period spent by a litigant the proceedings before a
wrong forum in a bonafide manner would have to be excluded from the period
of limitation and the bar of limitation under Section 3 would thus be subject to
the provisions contained in Section 14 of the Limitation Act, as a result
whereof it cannot be said that Sections 3 and 14 of the Limitation Act,1963 are41 of 57
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CWP No.2943 of 2019 and other connected cases [ 42 ]both independent and not mutually exclusive, as a result whereof, option 'A' is
the correct answer to the aforesaid question.K) Question No. 114
"114. Limitation period prescribed in filing a suit by a mortgagor to
recover possession of immovable property mortgaged.A. 20 years
B. 12 years
C. 10 years
E. 30 yearsOption 'D' is the correct answer. Article 61(a) of the Limitation Act, 1963
prescribes a period of Limitation of 30 years for filing a suit by a mortgagor to
redeem or recover possession of mortgaged immovable property. Article 61(b)
prescribes a period of Limitation of 12 years for filing a suit by a mortgagor to
recover possession of immovable property mortgage and afterwords
transferred by the mortgagee for valuable consideration. In the absence of
the aforesaid phrase having been mentioned in the question, Article 61 (a) of
the Limitation Act, 1963 determined the correct answer i.e. 30 years and any
reference made to Article 61(b) is misplaced.Article 61 of the Schedule appended to the Act ibid indicates that it covers
three different situations in Clause 'a' to 'c'. Clause 'a' pertains to suit by the
mortgagor to redeem or recover possession of immovable property mortgaged,
which is 30 years. Clause 'b' refers to the suit by mortgagor to recover
possession of immovable property mortgaged and after word 'transferred' by
mortgaged for a valuable consideration, which is 12 years. Clause 'c' pertains
to the suit for recovery of surplus calculation received by the mortgagee after
the mortgage has been satisfied and the period prescribed is 3 years. Needless
to mention here that the termination a-quo (starting point of limitation) as well
as prescribed period of limitation is different in all the three suits. It is self
evident that the question pertains to Article 61(a) and not to the remaining two
categories stipulated in Clause 'b' and 'c'. Thus, option 'D' is the correct
answer.N) Question No. 27
"27. What is the effect of opinion of the experts upon the Court?
A. Binding on the judge
B. Only advisory in nature
C. The judge can form an opinion contrary to that of expert
D. Both (b) and (c)42 of 57
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CWP No.2943 of 2019 and other connected cases [ 43 ]E. None of the above"
Option 'D' is the correct answer. The opinion of experts is, admittedly,
advisory in nature and it is open to a Judge to form an opinion contrary to that
of an expert. In this view of the matter, both options 'B' and 'C' were correct
and consequently, option 'D' was the correct answer also on account of the
fact that the Option 'D' gives the most correct and appropriate answer whether
question asked in the examination. Once both the option were correct and the
question was not whether one options was better worded than the other, the
submission of the Petitioner that option 'B' was the correct answer, is liable to
be rejected.Q Question No. 6
"6. A non-testamentary document is one
A. Which is intended to take effect or be operative immediately on
its execution
B. Which is final
C. Which is irrevocable
D. All the above
E Which is revocable"The correct answer is option 'D'. A non-testamentary document means any
document except a Will. For such a document, it is imperative that it should
not only be final and irrevocable but should also be intended to take effect or
become operative immediately on its execution. Thus, a document like a sale
deed not only becomes operative immediately on its execution but is also final
and irrevocable. Thus for a non-testamentary document to acquire recognition
in law, it needs to possess a final and irrevocable character and thus, option
'D', out of all the options, was the most appropriate answer.
In respect of question No.40, counsel for the petitioners have submittedthat the respondents have wrongly given the answer as Option `D', whereas it
should have been Option `A'. According to them, there is nothing like "Indian
Biometric Identification Scheme". In this regard, counsel for the petitioners
have referred to "The Aadhaar (Targeted Delivery of Financial and other
Subsidies, Benefits and Services) Act, 2016, whereas counsel for the
respondents has referred to a decision of the Supreme Court rendered in the
case of Justice K.S.Puttaswamy (Retd.) vs. UOI and others, AIR 2017 SC
43 of 57
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CWP No.2943 of 2019 and other connected cases [ 44 ]4161. Counsel for the respondents has referred to the observations of Justice
D.Y.Chandrachud in which he was referring to the norms for and compilation
of demographic biometric data by the Government while there was
constitutional challenge to the Aadhaar card scheme of the Union Government
in regard to the norms for and compilation of demographic biometric data,
which was questioned on the ground that it violates the right to privacy. She
has also referred to the view of Justice S.A.Bobde to contend that the dispute
before the Court was in regard to the Aadhaar project much-less to the
biometric scheme introduced by the Government of India. Further, learned
counsel for the respondents has submitted that the examinee has to read the
question carefully before attempting the same. In the said question, it has been
specifically asked that in what context, the Supreme Court, in 2017, held that
right to privacy is protected under Article 21 of the Constitution of India. She
has laid much emphasis on the words "in 2017" and "in the context of".
According to her, there was no judgment delivered by the Supreme Court in the
year 2017 in regard to Article 21 of the Constitution of India and the only
judgment which was delivered by the Supreme Court in 2017 is in regard to
"Indian Biometric Identification Scheme", which is commonly called as
"Aadhaar".
In view of the above, we are one with the contention raised by the
counsel for the respondents and, thus, the objection raised by the petitioners in
this regard is rejected.
Insofar as question No.49 is concerned, the answer given by the
respondent is Option `C', whereas the petitioners have claimed that it should
have been Options `C' and `D' both. The argument of the petitioners is that
Option `D' is correct as a trespasser can also file a suit under Section 6 of the
44 of 57
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CWP No.2943 of 2019 and other connected cases [ 45 ]Specific Relief Act, 1963. Learned counsel for the respondents has submitted
that a trespasser in settled possession alone can file a suit against a true owner.
In this regard, she has relied upon a decision of the Supreme Court rendered in
the case of Rame Gowda (D) by LRs v. M. Varadappa Naidu (D) by LRs
anr., Civil Appeal No.7662 of 1997, in which it has been held that a trespasser
in settled possession can file the suit under Section 6 of the Specific Relief Act,
1963. It is further submitted that the examiner wanted to test the knowledge of
the examinees else he would have definitely mentioned in one of the answers to
the question, a trespasser in settled possession. Since it has been categorically
mentioned "a trespasser", therefore, the answer cannot be "a trespasser" and it
should have been "a trespasser in settled possession" because a trespasser, may
be for a short period, cannot file a suit under Section 6 of the Act of 1963. In
view thereof, the answer given by the respondents is found to be correct.
Insofar as question No.62 is concerned, the answer given by the
respondents is Option `B', whereas according to the petitioners, it should have
been Option `D'. Their whole argument is that the question is confusing
because the words "first justice prize" have been incorporated in the question,
whereas it should have been "justice prize".
We do not agree with the contention raised by the petitioners because if
the question is read as a whole, then it comes out to be "won the first justice
prize from India" who is also named as "Living Legend of Law" by the
International Bar Association and it is very easily understandable that the first
justice prize winner from India is Fali S. Nariman, Senior Advocate, who is
also named as "Living Legend of Law" by the International Bar Association.
Thus, the contention raised by the petitioners in this regard is repelled.
45 of 57
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CWP No.2943 of 2019 and other connected cases [ 46 ]Insofar as question No.112 is concerned, counsel for the petitioners have
submitted that the answer given by the respondents, i.e. Option `A', is wrong
because they have alleged that it should have been Option `D' because Section
3 and Section 14 of the Limitation Act are not mutually exclusive as both are
not against each other.
Counsel for the respondents has explained that Section 3 of the
Limitation Act, 1963 would provide that the suit, if filed beyond the period
prescribed, shall have to be dismissed, whereas Section 14 of the Act provides
the exclusion of time period of limitation for any suit for which the plaintiff has
been prosecuting with due diligence before a wrong forum. Thus, as per
Section 14 of the Act, the aforesaid period can be excluded for the purpose of
bringing the suit within the period of limitation. Thus, Sections 3 and 14 are
independent where Section 14 has no applicability in the facts of the case and,
thus, both are independent and operate in different fields. However, where an
application under Section 14 of the Limitation Act, 1963 has been filed and
warrants adjudication and wherever such an application is found to be
meritorious, the time period spent by a litigant in proceedings before a wrong
forum in a bona fide manner would have to be excluded from the period of
limitation and the bar of limitation under Section 3 would thus be subject to the
provisions contained in Section 14 of the Limitation Act.
Thus, the objection raised by the petitioners in this regard is hereby
rejected.
Insofar as question No.114 is concerned, it has not been pressed by the
petitioners and, therefore, it is not delved into by this Court.
Insofar as question No.27 is concerned, the answer given by the
respondents is Option `D', whereas according to the petitioners, it should have
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CWP No.2943 of 2019 and other connected cases [ 47 ]been Option `B'. The question was as to what is the effect of opinion of the
experts upon the Court and in this regard, Option `D' says both `B' and `C', i.e.
"only advisory in nature" and "the judge can form an opinion contrary to that of
expert". The explanation given by the respondents is that admittedly, an
opinion of the expert is only advisory in nature and the judge can form an
opinion other than that of the expert, whereas the explanation given by the
petitioners is that the question is "what is the effect of the opinion of the
expert" would carry one answer and Option `B' is the right answer and not
Options `B' and `C' both.
We are not satisfied with the explanation given by the petitioners
because the effect of opinion of the experts upon the Court is only advisory in
nature as the judge can also form an opinion contrary to that of the expert,
therefore, the answer Option `D' is found to be more appropriate and hence, the
objection raised by the petitioners in this regard is also rejected.
Insofar as Question No.6 is concerned, it pertains to a non-testamentary
document. The answer given by the respondents is Option `D' which says "all
the above", whereas according to the petitioners, it should have been Option
`A' only. However, a testamentary document is a Will while all other
documents are non-testamentary in nature. For example, a document like a sale
deed not only becomes operative immediately on its execution but is also final
and irrevocable until and unless it is challenged before the Court of law by way
of a suit for declaration on the ground of fraud and misrepresentation.
Thus, the explanation given by the respondents in respect of their answer
seems to be correct and hence, the objection raised by the respondents is hereby
rejected.
47 of 57
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CWP No.2943 of 2019 and other connected cases [ 48 ]Now, we would deal with questions Nos.9, 47 and 85, which read as
under:-
"9. A is arrested by police and accused of murder of B. During
investigation A voluntarily agrees to undergo narco analysis and therein
he confesses to have murder B.A. The confession is relevant and can be sole basis of conviction.
B. The confession is irrelevant.
C. The confession is relevant but requires corroboration.
D. Only that much of A's statement can be used as leads to
discovery of a fact.
E. None of the above.47. Which of the following statements are true regarding a decree of
declaration?I. It creates no new rights.
II. It cannot be prayed as a matter of right.
III. If all the parties are not joined, declaration cannot be granted.
IV. Such a decree is conclusive between the parties to it and persons
litigation through them.
A. I, II, III and IV
B. I, III, IV
C. I, II, III
D. I and II.85. Who has no right to partition under Hindu Law?
A. Mother
B. Son, grandson, great grandson
C. Son conceived at the time of partition
D. None of the above."Insofar as question No.9 is concerned, it pertains to the voluntary
confession of an accused who had undergone narco-analysis. According to the
respondents, Option `D' is the right answer, whereas according to the
petitioners, it is Option `B'.
Counsel for the respondents has referred to a judgment of the Supreme
Court rendered in the case of Smt. Selvi Ors. Vs. State of Karnataka
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CWP No.2943 of 2019 and other connected cases [ 49 ]Ors., 2010(7) SCC 263. She has also referred to paragraph 223 of the said
judgment in which it has been held that at the time of hearing, the person in
question should also be told in clear terms that the statement that is made shall
not be a "confessional" statement to the Magistrate but will have the status of a
statement made to the police. She has also referred to Section 27 of the Indian
Evidence Act, 1872 to contend that the voluntary confession during the course
of investigation is a disclosure statement, which alone is relevant in case it
leads to any discovery.
In this regard, learned counsel for the petitioners has submitted that the
question is not pertaining to discovery of facts but it pertains to the confession.
The argument raised by the petitioners to support their contention that
the answer should be Option `B' cannot be taken to be correct because the
ultimate effect is to be seen of a voluntary confession of an accused while
undergoing narco- analysis test because the said statement would lead to
discovery of a fact.
Thus, the objection raised by the petitioners with regard to this question
is also rejected.
Insofar as question No.47 is concerned, the respondents have given the
answer as Option `A' which includes all the four answers, whereas according to
the petitioners, it should have been Option `B', i.e. all the options but for
answer II that a decree of declaration cannot be prayed as a matter of right.
Counsel for the respondents has sought to argue that the relief of
declaration cannot be prayed as a matter of right and in this regard, she has
submitted that if the suit, which is per se fraudulent, in that case, the person has
no right to seek declaration. For example, if a person knows that the State is
universally known as owner of a particular property, then any suit for
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CWP No.2943 of 2019 and other connected cases [ 50 ]declaration of ownership of that property cannot be entertained and has to be
rejected at the threshold.
Thus, we are one with the explanation given by the respondents in regard
to this question and hence, the objection raised by the petitioner is hereby
rejected.
Last but not the least, question No.85 pertains to a person who has no
right to partition under Hindu Law. The answer given by the respondents
before revision was Option `A', which was maintained as such in the final
revised answer key as well that a mother has no right to partition under Hindu
Law.
Counsel for the petitioners have referred to Section 10 of the Hindu
Succession Act, 1956 and submitted that mother is the legal heir who would
succeed to the property of her son and once she would succeed to the property,
then she would also have a right to partition, whereas counsel for the
respondents has submitted that the examinee has not read the question carefully
as it does not talk of the Hindu Succession Act, 1956 but only about the Hindu
Law. Section 4 of the Hindu Succession Act, 1956 has an overriding effect
upon any text, rule or interpretation or Hindu Law or any custom or usage as
part of that law in force immediately before the commencement of the Act with
respect to any matter for which provision is made in the Act of 1956. Section 4
of the Act of 1956 is reproduced as under:-
"4. Over-riding effect of Act.-- (1) Save as otherwise expressly
provided in this Act,--(a) any text, rule or interpretation of Hindu law or any custom or
usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act;50 of 57
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CWP No.2943 of 2019 and other connected cases [ 51 ](b) any other law in force immediately before the commencement
of this Act shall cease to apply to Hindus in so far as it is
inconsistent with any of the provisions contained in this Act."It is submitted that as per the Hindu Succession Act, 1956, all matters of
customary law which were in force immediately before the commencement of
the Act of 1956 would cease to have effect with respect to a matter for which
provisions have been made in the Act of 1956. So, insofar as the partition of an
immovable property amongst the Hindus is concerned, it is not made part of the
Hindu Succession Act, 1956 and in this regard, counsel for the respondents has
referred to Chapter XVI of Mulla Hindu Law and more particularly, paras 305,
315 and 352, which state that a mother, under Dayabhaga Law as also under
Mitakshara Law, cannot herself demand a partition but if a partition takes place
between her sons, she is entitled to a share equal to that of a son.
We are in full agreement with the explanation given by the respondents
in regard to this question and hence, the objection raised by the petitioners is
rejected.
Insofar as question No.117 is concerned, the same along with reply
given by the respondents in regard thereto is reproduced hereunder for ready
reference:-
"M) Question No. 117
"117. The Muslim Women (Protection of Rights on marriages)
Ordinance 2018 provides for:-I. It declares instant triple talaq talaq illegal and criminalizes it.
II. It makes declarations of talaq a non bailable offence.
III. A husband declaring talaq can be imprisoned for up two years along
with a fine.IV. It entitles Muslim women against whom tipple talaq has been
declared to seek subsistence allowance from her husband for herself
and for her dependent children.51 of 57
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CWP No.2943 of 2019 and other connected cases [ 52 ]A. I and IV
B. I, III and IV
C. I, II and IV
D. All of the above"As per Section 4 of the Ordinance, any Muslim husband, who
declares Triple Talaq referred to in Section 3 upon his wife shall be
punished within imprisonment for a term which may extend to three
years and shall also be liable to fine. Further, as per Section 7 (a), the
offence shall be cognizable, if the information of the offences given by
the married Muslim women upon whom Talaq is pronounced or any
person related to her by marriage and as per Section 7(b) the offence
shall be compoundable at the instance of married Muslim women upon
whom Talaq is pronounced with permission of the Magistrate. Further,
as per Section 7(c), no person accused of an offence punishable under
this Ordinance shall be released on bail unless the Magistrate, on an
application filed by the accused and after hearing the married Muslim
women upon whom Talaq is pronounced, is satisfied that there are
reasonable grounds for granting to bail such person.The Ordinance does not prescribe if the offence is bailable or
non-bailable. However, plain reading of Section 7 (c) read with Section
4 of the Ordinance goes to show that the offence is bailable, but the
accused shall not be released on bail unless an application is filed by
the accused and opportunity of being heard is afforded to the aggrieved
Muslim women and the Magistrate is satisfied that there exist
reasonable grounds for granting bail. The maximum sentence
prescribed under Section 4 of the Ordinance is term of imprisonment
which may extend to three years and fine also. As the Ordinance does
not specifically prescribe that the offence shall be bailable or non-
bailable, hence, the provisions of the General Law i.e. Part II of the
First Schedule appended with the Code of Criminal Procedure shall
apply, which provides that if the offence is punishable with
imprisonment for three years and upwards but not more than 7 years it
shall be non-bailable and if punishable within imprisonment for less
than three years or with a fine only, it shall be a bailable.Therefore, it cannot be said that declaration of Talaq under the
Ordinance is a non-bailable offence as has been claimed by the
Petitioner. Therefore, Option 'A' is the correct answer.52 of 57
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CWP No.2943 of 2019 and other connected cases [ 53 ]In this question, the answer given by the respondents is Option `A', i.e.
the Muslim Women (Protection of Rights on Marriages) Ordinance, 2018
provides for declaration of instant triple talaq illegal and criminalizes it and it
entitles Muslim women against whom triple talaq has been declared to seek
subsistence allowance from her husband for herself and for her dependent
children. Whereas, according to the petitioners, the answer to this question
should have been Option `C' that includes the answer II as well that makes
declaration of talaq a non-bailable offence.
In this regard, counsel for the petitioners have referred to Section 7 of
the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, which
reads as under:-
"7. Offence to be Cognizable Compoundable etc.
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973,--(a) an offence punishable under this Act shall be cognizable, if
information relating to the commission of the offence is given to an
officer in charge of a police station by the married Muslim woman
upon whom talaq is pronounced or any person related to her by blood
or marriage;(b) an offence punishable under this Act shall be compoundable, at
the instance of the married Muslim woman upon whom talaq is
pronounced with the permission of the Magistrate, on such terms and
conditions as he may determine;(c) no person accused of an offence punishable under this Act shall
be released on bail unless the Magistrate, on an application filed by the
accused and after hearing the married Muslim woman upon whom talaq
is pronounced, is satisfied that there are reasonable grounds for
granting bail to such person."It is apparent that there is a mistake committed by the respondents as
Section 7 of the Ordinance categorically provides that the Magistrate can reject
the bail application if he is satisfied that there are reasonable grounds for doing
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CWP No.2943 of 2019 and other connected cases [ 54 ]so. If that is so, then the offence becomes non-bailable. Even otherwise, for a
bailable offence, the Magistrate does not have the power to consider any
grounds for the purpose of grant or rejection of bail.
Counsel for the respondents has also referred to various other judgment
of the Supreme Court rendered in the cases of U.P.P.S.C., Through its
Chairman Anr. vs. Rahul Singh Anr., 2018(3) S.C.T. 298, Ran Vijay
Singh's case (supra), H.P. Public Service Commission vs. Mukesh Thakur
Anr., 2010(6) SCC 759, Kanpur University and others vs. Samir Gupta
and others, 1983(4) SCC 309 and a judgment of the Kerala High Court
rendered in the case of H. Nowfal vs. Kerala Public Service Commission,
2014(22) S.C.T. 662 to contend that no challenge is allowed to be made about
the correctness of the answer key until and unless it is demonstrably and
palpably erroneous.
There is no dispute about this proposition of law that the answer key can
only be interfered with when the Court finds that it is demonstrably and
palpably erroneous. Out of the aforesaid so many questions, we could only
find the answer key of this question No.117 to be demonstrably and palpably
erroneous because the answer runs contrary to the Ordinance itself. We do not
accept the explanation which is sought to be given by the learned Senior
Counsel appearing on behalf of the respondents that in Bill No.247 of 2017, i.e.
The Muslim Women (Protection of Rights on Marriage) Bill, 2017, introduced
in the Parliament, which has ultimately turned out to be an Ordinance, Section
7 specifically recorded that notwithstanding anything contained in the Code of
Criminal Procedure, 1973, an offence punishable under this Act shall be
cognizable and non-bailable within the meaning of the said Code. However,
the aforesaid Bill was not passed by the Parliament and eventually the
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CWP No.2943 of 2019 and other connected cases [ 55 ]Ordinance dated 19.09.2018 was notified wherein a change had been made in
Section 7 and the phrase "non-bailable" was deleted.
The submission of the counsel for the respondents is not correct as the
Bill has nothing to do with the Ordinance because it is only the Ordinance
which has the force of law, in which bail cannot be claimed as a matter of right
until and unless the Court satisfies itself about the facts and circumstances for
the purpose of its grant or rejection.
Thus, the contentions raised by the learned counsel for the respondents
in regard to this question is hereby rejected and Option `C' is held to be the
correct answer to aforesaid question No.117.
In view of the aforesaid detailed discussion, all the writ petitions are
hereby disposed of accordingly with a direction to the respondents to award
marks to the remaining candidates who have attempted question No.117
(question number may be different in other three booklets) rightly by choosing
Option `C' and revise the result of all the remaining candidates accordingly
within a period of one week from today and in case the candidates secure more
than the cut off marks in their respective category(ies) after revision of result,
such candidates shall be allowed to file their examination paper for their
appearance in the main written examination de hors the fact that the
respondents have invited only 10 times candidates against the available
vacancies.
We further 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 and 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
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CWP No.2943 of 2019 and other connected cases [ 56 ]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.
Before parting, we would refer to the decision of the Supreme Court
rendered in the case of Manish Ujwal and others vs. Maharishi Dayanand
Saraswati University and others, 2005(6) SLR 451, in which there was a
dispute about the answer key and the Supreme Court has made the following
observations:-
"9. The High Court has committed a serious illegality in coming to the
conclusion that "it cannot be said with certainty that answers to six
questions given in the key answers were erroneous and incorrect". As
already noticed, the key answers are palpably and demonstrably
erroneous. In that view of the matter, the student community, whether
the appellants or interveners or even those who did not approach the
High Court or this Court, cannot be mace to suffer on account of errors
committed by the University. For the present, we say no more because
there is nothing on record as to how this error crept up in giving the
erroneous key answers and who was negligent. At the same time,
however, it is necessary to note that the University and those who
prepare the key answers have to be very careful and abundant caution is
necessary in these matters for more than one reasons. We mention few
of those; first and paramount reason being the welfare of the student
and a wrong key answer can result in the merit being made a casualty.One can well understand the predicament of a young student at the
threshold of his or her career if despite giving correct answer, the
student suffers as a result of wrong and demonstrably erroneous key
answer; the second reason is that the courts are slow in interfering in
education matters which, in turn, casts a higher responsibility on the
University while preparing the key answers; and thirdly, in cases of
doubt, benefit goes in favour of the University and not in favour of the
students. If this attitude of casual approach in providing key answer is
adopted by concerned persons, directions may have to be issued for56 of 57
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CWP No.2943 of 2019 and other connected cases [ 57 ]taking appropriate action, including the disciplinary action, against
those responsible for wrong and demonstrably erroneous key answers
but we refrain from issuing such directions in the present case."
Thus, we issue only a piece of advice to the respondents to be verycareful in future with regard to framing of questions and finalizing the answer
key(s) whenever any competitive examination is to be held by them.
(Rakesh Kumar Jain)
JudgeFebruary 13, 2019 (Harnaresh Singh Gill)
vinod* JudgeWhether speaking / reasoned : Yes
Whether reportable : Yes
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