Gujarat High CourtRohit Prabhudas Lalwani vs State Of Gujarat on 10 August, 2021Author:A. S. SupehiaBench:A.S. SupehiaC/SCA/21908/2019                            ORDER DATED: 10/08/2021\n\n\n\n            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n              R/SPECIAL CIVIL APPLICATION NO.21908 of 2019\n================================================================\n                        ROHIT PRABHUDAS LALWANI\n                                 Versus\n                           STATE OF GUJARAT\n================================================================\nAppearance:\nMR SP MAJMUDAR(3456) for the Petitioner(s) No. 1\nRUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1\nMR ROHAN SHAH, AGP for the Respondent(s) No. 1\nMR PREMAL R JOSHI(1327) for the Respondent(s) No. 2\n=============================================================\n  CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA\n                         Date : 10/08/2021\n                          ORAL ORDER1.     The present writ petition has been filed by the petitioner\nseeking quashing and setting aside of the communication dated\n10.01.2019 addressed by the respondent - GPSC to the petitioner\nand it is further prayed that the GPSC may be directed to assign "one\nmark" for the question No.17.1 and accordingly include the name of\nthe petitioner in the select list prepared for the post of Accounts\nOfficer (Class-I) and Assistant Commercial Tax officer (Class-I).2.     The entire controversy raised in the present petition pertains to\nthe question no.17.1 of the main written test, which was held on\n06.01.2018 pursuant to the advertisement No.107/2016-17 published\nby the respondent-GPSC for the purpose of recruitment of the\nAccounts Officer (Class-I) and Assistant Commercial Tax officer\n(Class-I).3.     Learned advocate for the petitioner has submitted that initially\nwhen the result of the examination was declared, it was stated that\nthe petitioner had obtained 76 marks in Gujarati and English subjects\nin the main written examination and thereafter, the same was\ncorrected and reduced to 75 marks for the reason that the optionPage 1 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                                        ORDER DATED: 10/08/2021\n\n\n\nchosen to the question No.17.1 which was given by the petitioner\nwas incorrect. He has invited attention of this court to the question\nNo.17.1 which reads as under:"17.1 Use the word in bracket and write the sentence in the future tense.\n        Keep similar meaning\n\n        The tickets will be available on Tuesday. (Printed)\n\n        The tickets .......... by Tuesday.a) Will be printed      b)      Will have been printed\n        b) Will print           d)      Can get printed\n\n3.1     Learned advocate for the petitioner has submitted that option"A", which specifies "will be printed" is in fact the correct answer as it\nis future tense of the sentence, which was incorporated in the\nquestion and not option "B", on which the reliance is placed by the\nrespondent-GPSC. He has submitted that the aforesaid option is\napparently correct and the respondent-GPSC in fact has fallen in\nerror in prescribing option "B" on the decision advice of an expert. He\nhas submitted that thus, the respondent-GPSC may be directed to\ngrant one mark as the petitioner has correctly answered the option\n"A". In support of his submission, learned advocate has placed\nreliance on the judgements of the Apex Court as follows:(i)  Sandhya Naranbhai Maru vs. Secretary Gujarat Panchayat,\n2016(2) GCD 1350 = 2016(0) AIJEL_HC 234059;(ii)   Kanpur University, Through Vice Chancellor vs. Samir Gupta &\nOrs., (1983) 4 SCC 309;(iii) Manish Ujwal & Ors. Vs. Maharishi Dayanand Saraswati\nUniversity & Ors., (2005) 13 SCC 744;(iv) In common order dated 26.02.2016 passed in Special Civil\nApplication No.14573 of 2015 and cognate petitions;Page 2 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                             ORDER DATED: 10/08/2021\n\n\n\n3.2     While placing reliance on the judgement of the Apex Court inthe case ofKanpur University, Through Vice Chancellor vs. Samir\nGupta & Ors.(supra) he has submitted that the courts can direct the\nrespondent authorities to correct the answer key, if the key answer\nsupplied in the paper-sheet is incorrect.Further reliance is also placed\nby the learned advocate for the petitioner on the case ofManish\nUjwal & Ors.(supra), whereby the Apex Court has held that in case it\nis found that the answer key is incorrect, it is always open for the court\nin an appropriate case to direct the respondent authorities to correct\nthe same and for such unfair act of prescribing an incorrect answer,\nthe students may not have to suffer. It is thus submitted that in view of\nthe law annunciated in the aforesaid judgements, the present petition\nmay be allowed and the respondent-GPSC may be directed to assign\none mark to the petitioner. He has further submitted that in fact the\nquestion No.17.1 states that the sentence has to be answered in\n"Future Tense", however, the expert has submitted that the answer\nshould be in "Future Perfect Continuous Tense". It is submitted that\nthe question No.17.1 does not state that the sentence has to be\nwritten in Future Perfect Continuous Tense and since "will be" would\nbe an example of Future Tense, the answer given by the petitioner\nhas to be treated as correct.4.      In response to the aforesaid submissions, learned advocate for\nthe respondent-GPSC, while placing reliance on the affidavit-in-reply\nfiled by the GPSC, has submitted that in fact the option "B" was the\ncorrect answer to the sentence incorporated in question No.17.1. It is\nsubmitted by him that the opinion of the expert was taken in this\nregard and while placing reference to various dictionaries and\nsources, the expert has opined that the option "B" would be the\ncorrect answer. The expert has opined in the following manner:Page 3 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                                       ORDER DATED: 10/08/2021\n\n\n\n"3.    I state and submit that after careful examining the question & options, the\nexpert has opined the answer with remarks and source as mentioned as under:-     The word available means 'able to be used or obtained' or 'at one's\n         disposal'. It essentially implies something having been done and become\n         available. It also indicates that the process of 'printing' is over and tickets\n         are ready for use.     Use of 'will have been' is an example of Future Perfect Continuous Tense\n         whereas use of 'will be' is an example of simple future tense.     'will have been' indicates the completion of process of printing as it is\n         Future Perfect Continuous Tense. However, 'will be' indicates that\n         possibility of the process getting over, it means, tickets may be printed on\n         Tuesday or before or after.     'Will be printed' tell us about the action of printing which will be completed in\n         the future but 'will have been printed' tells us about the action of printing\n         which has begun but will be finished in the future.     Source sentence expects answer in a manner where meaning doen 't change\n         at all. Hence, considering the original sentence "The tickets will be available\n         on Tuesday", the answer "The tickets will have been printed by Tuesday" is\n         closer to the original meaning than the answer "The tickets will be printed by\n         Tuesday",\n\n        The particular question is aiming at testing the finer understanding of the\n         tenses of the candidate. Proposed answers in MCQs are deliberately chosen\n         to reduce the possibility of wild guess. Also, the meaning of each answer is\n         close to the other and, therefore, it becomes a test point for the candidate to\n         reach to the best possible / as close as possible answer."4.1      Thus, he has submitted that the correct answer would not be\n"will be printed" which was chosen by the petitioner, as the same tells\nus about the action of printing which will be completed in future but\n"will have been printed" tells us about the action of printing which has\nbegun, but will be finished in future. It is submitted that such\nquestions are deliberately prepared in order to test the intelligence of\nthe candidates and the option chosen by the petitioner was incorrect\nand once the expert has opined that the option "B" is correct, as per\nsettled law, this Court, while examining such an error the High Court\ncannot interfere with the decision of the expert unless the decision ofPage 4 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                             ORDER DATED: 10/08/2021\n\n\n\nthe expert is illegal or arbitrary. It is submitted by the learned\nadvocate that there is fine distinctions in both the options and hence,\nthe decision of the respondent-GPSC cannot be said to be arbitrary.5.     I have heard the learned advocates for the respective parties\nand perused the documents on record.6.     As the facts would suggest, the kernel of the issue involved in\nthe present petition is with regard to interpretation of the options\nspecified by the GPSC and the option chosen by the petitioner while\nanswering question no.17.1. As noted hereinabove, the question\nNo.17.1 specifically states that "Use the word in bracket and write\nthe sentence in the future tense. "Keep similar meaning." The\nquestion was asked that "The tickets will be available on\nTuesday (Printed)". The petitioner has chosen option "A" i.e. "Will\nbe printed", whereas, the expert has opined, the correct option will be\noption "B" i.e. "Will have been printed". It is stated that by the\nexpert that the distinct feature which has to be kept in mind while\nchoosing the option, is the instructions "Keep similar meaning".\nThe expert of the respondent-GPSC has submitted that though "will\nbe" is an example of "Simple Future Tense" however, the use of "will\nhave been" is an example of "Future Perfect Continuous Tense" and\nthe same has to be read along with the instructions "Keep similar\nmeaning". Thus, the expert, while reading the instructions "Keep\nsimilar meaning" has opined that for interpretation of the sentence\n"The tickets will be available on Tuesday (Printed)", the correct\nanswer would be "will have been printed" and not "will be printed" as\nthe meaning of the sentence would change if option "A" is held to be\ncorrect. The expert has referred to various sources in concluding that\nthe option "B" is the correct answer.        It is opined by the expertPage 5 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                                     ORDER DATED: 10/08/2021\n\n\n\nthat'Will be printed' tell us about the action of printing which will be\ncompleted in the future but 'Will have been printed' tells us about\nthe action of printing which has begun but will be finished in the\nfuture.7.     Though, various decisions are cited at the Bar, at this stage, it\nwould be apposite to refer to the recent decision rendered by the\nThree Judges Bench of the Apex Court in the case ofVikesh Kumar\nGupta & Anr. Vs. The State of Rajasthan & Ors, 2021 (2) S.C.C. 309.\nThe Apex Court, while examining the similar issue with regard to the\ninterpretation of the answer keys or evaluation of the questions and\nanswers has held thus:"14 Though re-evaluation can be directed if rules permit, this Court has\n       deprecated the practice of reevaluation and scrutiny of the questions by the\n       courts which lack expertise in academic matters. It is not permissible for the\n       High Court to examine the question papers and answer sheets itself,\n       particularly when the Commission has assessed the inter se merit of the\n       candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur\n       & Anr., (2010) 6 SCC 759) Courts have to show deference and consideration\n       to the recommendation of the Expert Committee who have the expertise to\n       evaluate and make recommendations [See- Basavaiah (Dr.) v. Dr. H.L.\n       Ramesh & Ors., (2010) 8 SCC 372).Examining the scope of judicial review\n       with regards to reevaluation of answer sheets, this Court inRan Vijay Singh &\n       Ors. v. State of Uttar Pradesh & Ors., (2018) 2 SCC 357 held that court\n       should not re-evaluate or scrutinize the answer sheets of a candidate as it\n       has no expertise in the matters and the academic matters are best left to\n       academics. This Court inthe said judgmentfurther held as follows:"31. On our part we may add that sympathy or compassion does not play\n           any role in the matter of directing or not directing re-evaluation of an\n           answer sheet. If an error is committed by the examination authority, the\n           complete body of candidates suffers. The entire examination process\n           does not deserve to be derailed only because some candidates are\n           disappointed or dissatisfied or perceive some injustice having been\n           caused to them by an erroneous question or an erroneous answer. All\n           candidates suffer equally, though some might suffer more but that cannot\n           be helped since mathematical precision is not always possible. This Court\n           has shown one way out of an impasse exclude the suspect or offending\n           question.32. It is rather unfortunate that despite several decisions of this Court,\n           some of which have been discussed above, there is interference by the\n           courts in the result of examinations. This places the examinationPage 6 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                                       ORDER DATED: 10/08/2021\n\n\n\n           authorities in an unenviable position where they are under scrutiny and\n           not the candidates. Additionally, a massive and sometimes prolonged\n           examination exercise concludes with an air of uncertainty. While there is\n           no doubt that candidates put in a tremendous effort in preparing for an\n           examination,it must not be forgotten that even the examination authorities\n           put in equally great efforts to successfully conduct an examination. The\n           enormity of the task might reveal some lapse at a later stage, but the\n           court must consider the internal checks and balances put in place by the\n           examination authorities before interfering with the efforts put in by the\n           candidates who have successfully participated in the examination and the\n           examination authorities. The present appeals are a classic example of the\n           consequence of such interference where there is no finality to the result of\n           the examinations even after a lapse of eight years. Apart from the\n           examination authorities even the candidates are left wondering about the\n           certainty or otherwise of the result of the examination whether they have\n           passed or not; whether their result will be approved or disapproved by the\n           court; whether they will get admission in a college or university or not; and\n           whether they will get recruited or not. This unsatisfactory situation does\n           not work to anybody's advantage and such a state of uncertainty results\n           in confusion being worse confounded. The overall and larger impact of all\n           this is that public interest suffers."15 In view of the above lawlaid down bythis Court, it was not open to the\n       Division Bench to have examined the correctness of the questions and the\n       answer key to come to a conclusion different from that of the Expert\n       Committee in its judgment dated 12.03.2019.Reliance was placed by the\n       Appellants onRichal & Ors. v. Rajasthan Public Service Commission & Ors.,\n       (2018) 8 SCC 81 Inthe said judgment, this Court interfered with the selection\n       process only after obtaining the opinion of an expert committee but did not\n       enter into the correctness of the questions and answers by itself. Therefore,the said judgmentis not relevant for adjudication of the dispute in this case.16 A perusal of the above judgments would make it clear that courts should\n       be very slow in interfering with expert opinion in academic matters. In any\n       event, assessment of the questions by the courts itself to arrive at correct\n       answers is not permissible. The delay in finalization of appointments to public\n       posts is mainly caused due to pendency of cases challenging selections\n       pending in courts for a long period of time. The cascading effect of delay in\n       appointments is the continuance of those appointed on temporary basis and\n       their claims for regularization. The other consequence resulting from delayed\n       appointments to public posts is the serious damage caused to administration\n       due to lack of sufficient personnel."8.     The Apex Court has held that re-evaluation can only be\ndirected if the rules permit and the practice of re-evaluation and\nscrutiny of the questions by the courts, which lacks expertise in\nacademic matters is also deprecated. It is further held that it is not\npermissible for the High Court to examine the question papers and\nanswer-sheets itself particularly when the Commission has assessedPage 7 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021C/SCA/21908/2019                             ORDER DATED: 10/08/2021\n\n\n\nthe inter se merit of the candidates. It is further directed that the\ncourts should be very slow in interfering with the expert opinion in\nacademic matters and in any event, assessment of the questions by\nthe courts itself to arrive at correct answers is not permissible.9.      Thus, in view of the specific law annunciated by the Apex Court\nwith regard to non-interference in the valuation and scrutiny of the\nquestion by the High Court, this court cannot re-evaluate the opinion\nof the expert.10.     In this view of the matter, the present writ petition fails and\nhence, rejected. NOTICE is discharged.Sd/-     .\n                                                        (A. S. SUPEHIA, J)\nNVMEWADAPage 8 of 8Downloaded on : Fri Sep 10 20:35:39 IST 2021