@JUDGMENTTAG-ORDER
Shashank Kr. Singh, J.@mdashBoth the writ applications have been filed for the same relief and as such with the consent of the parties were heard together and are being disposed of by this common order at the stage of Admission itself. The petitioners of both the writ applications had applied pursuant to advertisement made by the Bihar Public Service Commission for 46th Combined Competitive (P.T.) Examination.
2. The contention on behalf of the petitioners is that both the question papers and the answers given therein were wrong to the extent that there could not have been a fair evaluation in selection of the candidates, as the examination itself was a subjective examination, meaning thereby that the questions and correct answers alongwith other answers were given and the correct answers were to be filled up in the prescribed column, which were to be examined by the computer and numbers granted.
3. By taking the court to the question papers as well as model answers prepared by the Bihar Public Service Commission (hereinafter referred to as the ''B.P.S.C.'') which was produced in court by the learned counsel representing the B.P.S.C, it has been tried to be shown that there were questions, answers of which were not given at all in the probable answers provided. There were certain questions, whose answers could be more than one and both answers were provided in the probable answers whereas in the model answer sheet, only one of the answers was shown as the correct answer, meaning thereby that the person, who filled up giving other probable answer, which was correct would be awarded Zero marks for the same. This could cause prejudice and according to the learned counsel, if one mark was the difference in the number obtained by one candidate against the other then perhaps a gap of nearly one thousand candidate would be there. These are the reasons, which have been shown to either cancel the aforesaid examination and direct the B.P.S.C. to hold a fresh examination or in the alternative, it has been argued that those question papers be deleted and the answers given in those question papers be not counted for final assessment.
4. Learned counsel for the B.P.S.C. has contended that the answer book, copy of which was produced in court, instruction No. 9 itself would go to show that such a situation could arise and if such a situation was there what the candidate was supposed to do. Instruction No. 9 reads as follows:
"Questions and their responses are printed in English and Hindi versions in this booklet. Each question comprises four responses--(A), (B), (C) and (D). It further says that you are to select only one correct response and mark in your answersheet. In case you feel that there are more than one correct response, mark the response which you consider the best. In any case choose Only One response for each question. Your total marks will depend on the number of correct responses marked by you in the Answer Sheet".
5. Relying on the aforesaid instruction, Dr. Sadanand Jha, learned counsel for the B.P.S.C. contends that such a situation has already been envisaged by the B.P.S.C, rather such questions were there in which more than two answers were probable but the intelligence of the candidates was to be judged by seeing as to whether he chose the correct answer and the most commonly used answer or not. As such, according to him, such question or its answers were not required to be interfered with. However, he has contended that in view of the allegations of the petitioners, the B.P.S.C. and the experts had reviewed the matter and have found out that one question was a wrong question. As such, the same has been deleted and no one has been given any marks for answering the said question, whether answers were as per the model answer provided or not. As such, it is contended that the writ be dismissed without merit as all the candidates are similarly situated and have been benefited or prejudiced in equal way and relative merit of the candidates can still be judged.
6. In this regard Dr. Sadanand Jha representing the B.P.S.C. has relied upon a judgment of this court in the case of
7. Relying on the aforesaid judgment it has been contended by the learned counsel tor the B.P.S.C. that as the petitioners have participated in the Preliminary Test and mistake, if any, prejudiced all the candidates equally and if they have not been selected, today they cannot turn back and challenge the same as no other irregularity has been brought on record to the notice of the court. However, by filing a supplementary counter-affidavit a further contention, which has been made, is that the B.P.S.C. and the experts appointed of it had re-checked and verified the model answers with questions and has found one of such answers was bad and as such have removed the same bringing all the candidates on equal footing and now the questions as on record are to be treated only as 149 questions and after re-counting list would be corrected. Accordingly, no interference was required to be made.
8. In reply to the aforesaid submissions, it has been contended by the learned counsel for the petitioners that he was not making any aspersion on the conduct of the Commission or its functionaries regarding not holding of a fair examination, but the factual aspect, which has been brought on record is that it is not a fact that all the candidates are similarly situated and have equally benefitted or been prejudiced. According to him where there are two answers and both the answers are probable and correct, a person giving one answer will be awarded marks and the person opting for the other will be awarded Zero mark. As such, according to the learned counsel for the petitioners, the prejudice is not one and the same and as such, the judgment relied upon is not of any avail to the respondents-authorities. It has further been contended that in any competitive examination if the prejudice as well as benefit are one and the same, the comparative merit would be the same and no one would be prejudiced.
9. On the suggestion of the court, learned counsel for the parties agreed that let the questions and answers on which any doubt is there be placed before the court so that the court may look into the same and decide as to whether any further question and answer was required to be deleted for coming to the right conclusion so far as the selected candidates for final examination/interview are concerned.
10. As far as question No. 9 is concerned, i.e., regarding the gas used for artificial ripening of fruits, the answer given in the model answer sheet is acetylene, meaning thereby that person who ticks B, i.e., acetylene will get the mark but the answer given at serial D of question 9, i.e., ethylene would get zero. In the explanation describing ethylene it is stated that it is used for artificial ripening of fruits. Even according to the learned counsel for the petitioners as per instruction No. 9 given in the question Booklet the most commonly used answer is to be given. Regarding gas used for artificial ripening of fruits ethylene should have been the correct answer. As such, the candidate giving the right answer or the most common answer, i.e., most acceptable answer would get Zero.
11. Learned counsel for the BPSC has no objection, if the court also feels that such answer could cause prejudice and the B.P.S.C. may be directed to delete the said question also.
12. It is, accordingly, ordered.
13. As far as question No. 43 is concerned, the B.P.S.C. themselves have deleted that question. No order is required regarding the aforesaid question.
14. Regarding question No. 62, i.e., what is the sex ratio in India as per census 2001. The answer as per model answer given is per 1000 males 927 females. In all the books, which are available, the correct answer is 933. This answer is not the correct answer, moaning thereby that as per 2001 census both the parties agree that this may not be the correct answer.
15. Counsel for the B.P.S.C. contends that 2001 census report was officially published subsequently to the setting of the question and as such earlier report of 1991 has been given showing the ratio of female 927 vis-a-vis 1000 males. If that was so, then perhaps the question should not have read as per census 2001 but as per census of 1991. All the four answers given in question No. 62 as probable answer are wrong and as such giving marks for the person who showed ''A'' as the correct answer would be wrong. Therefore, the said question, i.e., question No. 62 regarding what is the sex ratio in India as per census 2001 is also directed to be deleted.
16. As far as question No. 80 is concerned, i.e., who amongst the following Mauryan rulers did conquer the Decan, the answer is Chandragupta at ''B''. Counsel for the petitioners contends that Bindusara given at ''C also conquered the Decan. However, learned counsel for the B.P.S.C. contends that Chandragupta was the first conqueror of Decan. There may be subsequent person conquering the Decan but the most probable and correct answer would be the first person, who conquered the Decan. He again relied on instruction No. 9 in this regard, which has been quoted above. The court also agrees with him. This question is not required to be deleted for calculating the correct answer.
17. Similarly question No. 84 regardring who is not entitled to take part in the activities of Lok Sabha. The answer given at ''D'', i.e., the Secretary to President of India here also some anomaly has been shown, as the answer also gives the name of the Attorney General of India, the Solicitor General and Comptroller and Auditor General of India.
18. Dr. S.N. Jha, learned counsel for the BPSC contended that persons at serial Nos. A, B and C at some stage can take part in the activities of the Lok Sabha, though he accepts that as per the entitlement given it is only the Attorney General of India who can take part in the activities of the Lok Sabha. The question itself asks that who is not entitled, meaning thereby that others should be entitled as a right. Even if the argument of Dr. Jha is accepted the Comptroller General of India under what circumstances can be summoned in the House and participated in its deliberation is not answered. This question is also wrong one and has to be deleted.
19. It is, accordingly, ordered.
20. Regarding question No. 90, i.e., what is the sequence of Dr. Manmohan Singh as Prime Minister of India. The answer given is at ''C, i.e., 14th. Learned counsel for the petitioners has tried to justify by saying that there are persons who have held the office of the Prime Minister for more than one tenure and as such, the correct answer was not given but the counsel for the B.P.S.C. has contended that Dr. Mohan Singh was the 14th Prime Minister of India, i.e., 14th man to hold the aforesaid post. In that view of the matter this answer is the most probable answer and, as such, the same is not required to be interfered with.
21. The next question is at serial No. 117 relating to who did illustrate "Dastan-i-Amir Hamza". The model answer says ''A'', i.e., Abdus Samad. However, certain authentic books as well as other books have been relied upon to show that Mir Sayyad Ali given at ''C and Abdus Samad did illustrate "Dastan-i-Amir Hamza", rather name of Mir Sayyad Ali comes first, therefore, such probable answer appears to be wrong and person opting for ''C would get Zero marks. The said question is also directed to be deleted.
22. As far as question No. 145 is concerned, the same relates to rank of Bihar in view of population in India. The accurate answer given is at ''C, i.e., 5th. The contention of the learned counsel for the petitioners is that as per 1991 census it was 5th but as per 2001 census the same is 3rd. None of the answer shows 3rd as the correct answer. Counsel for the BPSC has tried to show certain discrepancies in the 2001 census report to show that in Assam, Jammu and Kashmir and in Ran of Kachh and some other places actual census could not be done due to intervening circumstance and on the basis of 1991 and taking census average growth in the population into consideration such figures have been recorded and as such, according to him, 1991 census report was the correct report and not the 2001 census.
23. This court, unless 2001 census report is given a go-by and as the preliminary examination was in 2004 and 2001 report was there, can give no other direction but to direct the deletion of the said question also.
24. It is, accordingly, ordered.
25. The last discrepancy, which has been shown is regarding question No. 149, which relates to rank of Bihar in India in view of Geographical Territories. The correct answer given in the model answer is at ''C'', i.e., 11th. Counsel for the petitioner contends that it should be 12th.
26. Learned counsel for the B.P.S.C. contends that if all the intervening circumstances are taken then perhaps no answer would be correct answer, as the time when the questions are set and model answer is prepared, that should be the relevant time. In between that time and the period when the examination is taken, circumstance changes. The population of a Territorial area of a State can increase or decrease because of subsequent action, i.e. bifurcation, division etc., that should not be a ground for intervention of the court, as ''C, i.e., 11th was the most probable answer and was the position at the time of setting of the question, it should be treated as the right answer. The court feels inclined to accept the said submission. It is not required to be interfered with.
27. While going through the questions and model answers provided the court has gone into questions of booklet series ''B''. Other series are also there. Same questions are there, but their placements are not the same. The serial number may differ. This order shall govern all the booklets and the answers given irrespective of their serial number in the different booklets. Any answer given to the question direct to be deleted shall be deleted in all answer books and no marks be allotted for the same. Thus, bringing all the candidates on one and the same footing.
28. This court has gone through all the questions and model answers providing by BPSC and the order is being passed on the basis of booklet having series ''13''. Rest has to be worked out by the B.P.S.C, i.e., regarding locating the answers in other series to those questions and deleting them.
29. It is, thus, ordered that the B.P.S.C. in view of the direction as given above shall delete those questions, which have been directed to be deleted and after deleting the same, the marks obtained by the candidates in the Preliminary Test on the basis of the remaining questions be calculated and proceeded accordingly. The court has entered into the aforesaid exercise in view of the agreement between the parties that if the court feels inclined and finds such questions wrong, they would be making necessary correction. As it has already been contended that even 47th Combined Competitive Examination (P.T.) has already been held, let the B.P.S.C. proceed accordingly so that the Mains and other formalities are completed. Both the writ applications are allowed to the extent indicated above.
