Patna High Court - OrdersOm Prakash & Ors. vs The State Of Bihar & Ors on 25 April, 2014Author:Shivaji PandeyBench:Shivaji PandeyIN THE HIGH COURT OF JUDICATURE AT PATNA
              Civil Writ Jurisdiction Case No.13083 of 2012
======================================================
1. Diwakar Paswan, S/O Sri Rajeshwar Paswan Resident Of Village-
Athagama, P.S- Kharik, District- Bhagalpur.
2. Md. Nafisur Rahman, S/O Md. Hifzur Rahman, Resident Of Village-
Siswan Via Adapur, P.O- Siswan, P.S- Darpa, District- East Champaran.
3. Sanjay Kumar, S/O Sri Indrasan Prasad Dayalu, Resident Of Village-
Basudeopur, P.S- Laukaha, District- Madhubani.
4. Rupesh Kumar Thakur, S/O Sri Shankar Kumar Thakur, Resident Of
Village- Kadrachak, P.S- Shambhuganj, District- Banka
5. Raj Kumar, S/O Sri Rupan Saw, Resident Of Village- Gopalpur, P.S-
Naubatpur, District- Patna.
6. Jay Narayan Yadav, S/O Sri Dasrath Prasad Yadav, Resident Of Village-
Budhma, P.S- Madhepura, District- Madhepura.
7. Mukesh Kumar, S/O Sri Raj Kishore Rai, Resident Of Village-
Gangapur, P.S- Pusa Road, District- Samastipur.
8. Krishna Kumar, S/O Sri Puhup Lal Yadav, Resident Of Village- Aourahi,
P.S- Simraha,District- Arariah.
9. Ranjeet Kumar, S/O Sri Ramadhar Roy, Resident Of Vilage- Harpur,
P.S- Barauni, District- Begusarai.
10. Jayadeo Mandal, S/O Sri Sashi Kant Mandal, Resident Of Village-
Lagma, P.S- Kahalgaoun, District- Bhagalpur.
11. Mukesh Kumar, S/O Sri Brahamdeo Mandal, Resident Of Village-
Bhramarpur Tola (Itarahi), P.S- Alamgar, District- Madhepura.
12. Lalan Kumar, S/O Sri Sitaram Bhagat, Resident Of Village- Chikini,
P.S- Saurbazar, District- Saharsa.
13. Meena Kumari D/O Sri Radheyshyam Bhagat, Resident Of Village-
Chikini, P.S- Saurbazar, District- Saharsa.
14. Mithelesh Kumar, S/O Sri Parmeshwari Sah, Resident of Village-
Nauranga, P.S- Choutham, District- Khagaria.
15. Chandran Kumar, S/O Sri Naresh Kumar Thakur, Resident Of Village-
Chakrami, P.S- Bihpur, District- Bhagalpur.
16. Rakesh Ranjan, S/O Sri Shashi Bhushan Khadgara, Resident Of
Village- Baunshi, P.S- Baunshi, District- Banka.
17. Sumit Kumar Poddar, S/O Sri Ramesh Chandra Poddar, Resident Of
Village- Chandpur, P.O- Chandpur, P.S- Falka, District- Katihar.

                                                       .... ....   Petitioner/s
                                   Versus
1. The State Of Bihar through its Chief Secretary, Patna. t
2. The Bihar School Examination Board, Patna.
3. The Chairman, Bihar School Examination Board, Patna.
4. The Secretary, Bihar School Examination Board, Patna.

                                                    .... .... Respondent/s
======================================================
                                  with
             Civil Writ Jurisdiction Case No.16997 of 2012
======================================================
1. Santosh Kumar Mishra, S/O Shri Yashoda Mishra, Resident Of Village-
Nisurpur, P.O- Jamuara, Via- Tekari, P.S- Konch, Distt- Gaya.
 Patna High Court CWJC No.13083 of 2012 (14)

                                              2




            2. Chandra Bhushan Kumar, S/O Shri Bachchoo Pandey, Resident Of
            Village- Khanwan, P.O- Khanwan, P.S- Narahat, Distt- Nawada.
            3. Shishir Kumar Mishra, S/O Shri Yashoda Nand Mishra, Resident Of
            Village- Nisurpur, P.O- Jamuara, Via- Tekari, P.S- Konch, Distt- Gaya.
            4. Kumari Anshika Sinha, D/O Shri Muneshwar Prasad Sinha, Resident Of
            Village & P.O- Simuara, P.S- Tekari, Distt- Gaya.
            5. Vinta Kumari, D/O Shri Awadh Singh, Resident Of Village & P.O-
            Khizersarai, P.S- Khizersarai, District- Gaya.

                                                                  .... ....   Petitioner/s
                                              Versus
            1. The State Of Bihar through Principal Secretary, Human Resources and
            Development Department, Bihar, Patna.
            2. The Principal Secretary, Human Resources and Development
            Department, Bihar, Patna.
            3. Bihar School Examination Board through Chairman, Bihar School
            Examination Board, Budha Marg, Patna.
            4. The Chairman, Bihar School Examination Board, Budha Marg, Patna.
            5. The Secretary, Bihar School Examination Board, Budha Marg, Patna.

                                                                 .... .... Respondent/s
            ======================================================
                                                    with
                           Civil Writ Jurisdiction Case No.16129 of 2012
            ======================================================
            1. Ritesh Kumar, S/O Sri Suresh Prasad Gupta, Resident Of Village :
            Damodarpur, P.O. : Damodarpur, P.S. : Kanti, Via - Patahi , District -
            Muzaffarpur
            2. Sanjay Kumar Singh, S/O Sri Ravindra Prasad Singh, Resident Of
            Village : Balthi Maheshpur, P.O. + P.S. : Balthi Maheshpur, District :
            Katihar
            3. Babloo Kumar, S/O Sri Bino Prasad Yadav, Resident Of Village : Bari
            Ballia, P.S. : Bari Ballia, District : Begusarai
            4. Niranjan Kumar Jha, S/O Sri Bedanand Jha, Resident Of Village :
            Aradaha, P.S. : Pratapganj, District : Supaul
            5. Shailendra Kumar Jha, S/O Sri Bedanand Jha, Resident Of Village :
            Aradaha, P.S. : Pratapganj, District : Supaul
            6. Jay Prakash Sharma, S/O Sri Jagdish Sharma, Resident Of Village :
            Maujutola, P.S Bhawanipur (Bihpur), District : Bhagalpur
            7. Manoj Kumar, S/O Sri Suresh Prasad Sharma, Resident Of Village :
            Maujutola, P.S. Bhawanipur (Bihpur), District : Bhagalpur

                                                                  .... ....   Petitioner/s
                                              Versus
            1. The State Of Bihar
            2. The Bihar School Examination Board, Patna
            3. The Chairman, Bihar School Examination Board, Patna
            4. The Secretary, Bihar School Examination Board, Patna

                                                   .... .... Respondent/s
            ======================================================
                                     with
        Patna High Court CWJC No.13083 of 2012 (14)

                                                     3




                                 Civil Writ Jurisdiction Case No.15071 of 2012
                   ======================================================
                   1. Om Prakash, Son Of Sri Ram Sagar Singh, Resident Of Village Najirpur,
                   Police Station Ujjiarpur, P.O. Chand Chaura, District Samastipur
                   2. Rafat Zahan, Daughter Of Anwarul Haque, Resident Of Mohalla
                   Dharampur, Ward No. 1, P.S. Town, District Samastipur
                   3. Kumari Meera Manjusa, Daughter Of Late Ram Chandra Singh, Resident
                   Of Village Mersand, Bahadurpur, P.S. Pusa, District Samastipur

                                                                       .... ....   Petitioner/s
                                                     Versus
                   1. The State Of Bihar through Principal Secretary, Human Resources
                   Development Department, Government Of Bihar, Patna
                   2. The Director, Primary Education, Human Resources Development
                   Department, Government Of Bihar, Patna
                   3. Bihar School Examination Board through its Chairman
                   4. The Secretary, Bihar School Examination Board, Patna
                   5. The Controller Of Examination, Bihar School Examination Board, Patna

                                                                     .... .... Respondent/s
                   ======================================================
                   Appearance :
                   (In CWJC No.13083 of 2012)
                   For the Petitioner/s  :   Mr. Subodh Kumar Jha,
                                             Mr. Pranav Kumar Jha,
                                             Mr. Roshan Kumar Mishra, Advocates.
                   For BSEB               :  Mr. Satyabir Bharti, Advocate.
                   For the State          :  Mr. Piyush Lal,
                   (In CWJC No.16997 of 2012)
                   For the Petitioner/s  :   Mr. Shekhar Singh,
                                              Mr. Shree Nivas Madhuvan, Advocates.
                   For the Respondent/s    : Mr. Girish Kumar, Advocate.
                   For the State           : Mr. Ved Prakash Srivastava, AC to SC 27.
                   (In CWJC No.16129 of 2012)
                   For the Petitioner/s  :   Mr. Subodh Kumar Jha,
                                             Mr. Pranav Kumar Jha,
                                             Mr. Roshan Kumar Mishra, Advocates.
                   For the BSEB           :  Mr. Girja Shankar Prasad, Advocate.
                   For the State          :  Mr. Navjot Yeshu, AC to GP 3.
                   (In CWJC No.15071 of 2012)
                   For the Petitioner/s  :   Mr. Rabindra Kumar Priyadarshi, Advocate.
                   For the State        :    Mr. Mohan Kumar Singh, AC to SC5.
                   ======================================================
                   CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
                   CAV ORDER

14   25-04-2014Heard learned counsel for the petitioners and learned

                      counsel for the State as well as Bihar School ExaminationPatna High Court CWJC No.13083 of 2012 (14)4Board.2.        In all the cases identical issues have been raised, they

               have been heard together and are being disposed of by the

               common order.3.           For brevity, the fact of C.W.J.C. No.13083 of 2012

               is being taken into consideration for deciding the issue

               involved in the present case.4.         The common prayer has been made to re-evaluate the

               answer sheets/ OMR sheets of the petitioners in terms of

               subject taken by the petitioners i.e. first selected paper and

               second selected paper for appearing in the Secondary/Higher

               Secondary Teachers Eligibility Test, 2011 (hereinafter

               referred to as „the Eligibility Test, 2011) as according to the

               marks allotted to the subject in the aforesaid Eligibility Test,

               2011 are as follows:1 to 50 allotted to Teaching Art and Reasoning

               (common),        51 to 100 allotted to first selected paper and

               101 to 150 allotted to second selected paper. Although the

               respondent Bihar School Examination Board evaluated the

               answer sheets/ OMR sheets according to subject mentioned in

               the answer sheets/OMR sheets as there is no mentioning of

               sequence of papers in the answer sheets/OMR sheets or evenPatna High Court CWJC No.13083 of 2012 (14)5in the advertisement which was completely mistaken system

               of evaluation and further for a direction upon the respondents

               to change evaluation system by giving sequence of paper for

               proper evaluation and get answer sheets/OMR sheets re-evaluated in terms of preference taken by the petitioners for

               declaring the name of the petitioners in the list of successful

               candidates in the said examination.5.           Basically the question that has been raised by the

               petitioners that advertisement, Information Bulletin, Question

               Booklet and OMR sheet were/are not clear to understand in

               what manner the candidate would opt the subject and to solve

               the question paper and so much so number system which

               were/are mentioned in Question Booklet in each segment of

               subject is so confusing and created mess, was very difficult to

               understand into what manner and under what system the

               candidate has to give the answer. In substance the questions

               have wrongly been arranged not compatible to the

               advertisement issued for Eligibility Test, 2011 so much so

               OMR sheet have not been evaluated in terms of subject opted

               by petitioners.Patna High Court CWJC No.13083 of 2012 (14)66.         The Bihar School Examination Board issued an

               Advertisement No. 19 of 2012 for holding the Eligibility Test,

               2011 for appointment of teachers in different High Schools

               and Middle Schools in the State of Bihar which is known as

               Eligibility Test, 2011. All the petitioners applied against the

               said advertisement, admit cards were issued and accordingly

               all the petitioners have appeared.7.      After publication of result, the petitioners were shocked

               as they were not in the list of successful candidates, filed an

               application/representation before the respondent Board to re-

               evaluate their answer sheets/OMR sheets in terms of subject

               selected      by     them          in   preference.   Petitioners   filed

               representation, later on they could know, Board did not

               evaluate the answer sheets/OMR sheets in terms of

               chronological preference of subject mentioned in their

               respective application form. Petitioners in order to satisfy the

               evaluation in the proper manner filed an application under theRight to Information Actto supply their answer sheets/OMR

               sheets to verify marks obtained by them in proportionate to

               their respective performance in test.8.         The petitioners in order to crystallize their contention

               has submitted by way of instance as taking case of petitionerPatna High Court CWJC No.13083 of 2012 (14)7no.1 who having B.A. Hon‟s in Political Science in which

               History is subsidiary paper filled up the form, opted Political

               Science as first selected paper and further opted History as

               second paper. But his answer sheet/OMR sheet was not

               evaluated according to the subjects opted by the petitioner in

               preferential manner rather the evaluation was made according

               to the subject mentioned in the answer sheet/OMR sheet. As

               per answer sheet/OMR sheet in the column Social Science,

               History is mentioned on the top and thereafter Geography,

               Economics and Political Science. The second opted subject of

               the petitioner History was evaluated as first selected paper and

               Political Science was evaluated as second selected paper in

               place of first selected paper.9.       In similar way petitioner no.2 being Science graduate

               having Hon‟s in Biology filled up the form in the said

               examination opted Biology as first selected paper and further

               opted Chemistry as second selected paper but answer

               sheet/OMR sheet was not evaluated according to the subjects

               opted by the petitioner. But the answer sheet/OMR sheet was

               evaluated according to the subject mentioned in the OMR

               sheet. According to the answer sheet/OMR sheet in the

               column Mathematics and Science, Mathematics is mentionedPatna High Court CWJC No.13083 of 2012 (14)8in the top and thereafter Physics, Chemistry and Biology and

               second opted subject of the petitioner was Chemistry but the

               answer sheet was evaluated treating the Chemistry as first

               selected subject and Biology was evaluated as second selected

               paper which is really a wrong process was adopted for

               evaluating the answer book of the petitioner.10.       Similarly petitioner no.3 was graduate in Science with

               Biology as Hon‟s paper filled up the form in the said

               examination and opted Biology as first selected paper and

               further opted Chemistry as second selected paper. But answer

               sheet/OMR sheet was not evaluated according to the

               chronology opted by the petitioner as Chemistry being a

               second opted subject was evaluated treating it as first paper.

               Similarly Biology was opted as first paper but was evaluated

               as second paper. In nutshell his case is that the Board has

               wrongly arranged the answer sheet and not in the manner

               what the petitioner has opted the subject.11.        As per the claim of the petitioners the answer

               sheets/OMR sheets vis-à-vis the question papers ought to have

               been arranged in such a manner that prudent person can

               understand the manner they have to give the answer to the

               question, and evaluation of the answer sheets ought to havePatna High Court CWJC No.13083 of 2012 (14)9been done in the manner they have chosen as a first subject

               and second subject but in contra the first subject opted by the

               petitioners has been evaluated as second subject and

               correspondingly the second subject opted by the petitioners

               has been evaluated as first subject and that is the reason the

               petitioners could not get the proper marks and they were not

               declared as selected candidates.12.           It has been submitted that the advertisement was

               completely vague and clumsy difficult to understand the same

               in what manner the subject was to be opted and at the same

               time the questions of general science has been arranged from

               1 to 50 and thereafter each subject like History, Geography,

               Political Science and Economics have been arranged in

               between question nos. 51 to 100 but at the same time question

               no.51 to 100 has been carried another serial number as 101 to

               150 by applying hyphen as like 51/101 and onward and in

               this manner every subject has been arranged carrying the

               same question number (51/100, 52/201 ...100/150) created a

               sheer confusion while giving answer and there was every

               likelihood that the candidate would commit mistake while

               giving answer in the multiple choice answer in computerized

               answer      sheet    and       further   submitted   question   papersPatna High Court CWJC No.13083 of 2012 (14)10corresponding OMR sheet was labyrinth alley.13.        The counsel for the petitioner has pointed out that in

               the advertisement nothing has been mentioned that a

               candidate will have to take as one of the compulsorily subjects

               either History or Geography but has only mentioned that any

               two subjects have to be taken. The OMR Sheets or question

               book let Annexure-B where the details has been given also

               does not disclose to elect one of the compulsory subjects

               would be either History or Geography. He has drawn attention

               to question book let (Annexure-B) section II of the guidelines

               provided the manner questions have to solve. It has been

               provided out of four subjects two subjects would have to be

               selected as per option in the form. There is no instruction to

               opt compulsorily either the History or in Geography as one

               subject. Sub-clause-(4) of Clause 11 Information Bulletin

               (Annexure-A) does not disclose that either the History or

               Geography to be opted compulsorily as one of subject.

               Clause 11(4) mandates, the candidate intending to appear in

               the test must have done graduation any of four subjects but

               one of the subject must either be History or Geography (either

               in pass course or Honours). When the matter was taken up by

               this Court on 8th August, 2012 and the Court has asked thePatna High Court CWJC No.13083 of 2012 (14)11Board to file counter affidavit whereupon Bihar School

               Examination Board issued essential notice (Annexure-F) in

               the shape of clarification wherein sub clause-(ii) it has been

               mentioned that the person was required to opt essentially any

               of the two compulsory subjects i.e. History or Geography.14.      The petitioners in support of their contention has relied

               on the judgment in the case ofMadan Mohan Roy Vs. the

               State of Bihar & others, reported in 2013(4) PLJR 398

               (paragraph 12) and                  State of Orissa and others Vs.

               Prajnaparamita Samanta and others, reported in (1996)7

               SCC 106.15.    The counsel for the Board has pointed out the note-1 of

               Clause 11 of Information Bulletin (Annexure-A) and clause

               11(Ka) (4)       have to be read together in harmony and in

               totality, gives one and only inference that the person, who is

               B.A. will have to opt compulsorily any one subject from any

               of the of the subjects i.e.History or Geography. He has further

               submitted that the petitioner has not taken this plea before any

               forum, for the first time, this plea has been raised so much so

               there is no foundational fact in the pleading rather as a matter

               of fact those, who have opted for social science, have opted

               either History or Geography. As a matter of fact if thePatna High Court CWJC No.13083 of 2012 (14)12representation would be looked into, it will be apparent, no

               such grievance was ever raised about creating confusion in

               understanding and opting the subject by the candidate. He has

               further submitted that it will also be very apparent from reply

               to the counter affidavit in paragraph 6, where it has been

               mentioned according to the broacher it is required to pass in

               two subjects but they were required to take either History or

               Geography compulsorily. He is putting emphasis on this

               paragraph and submitted even presuming the clauses were

               vague but petitioners would be non-suited once they

               understood the contents of the broacher and they have acted

               upon, accordingly. Counsel for the petitioners fairly accepted

               that no fraud or any illegality has been committed either at the

               examination centre or in evaluation of answer sheet.16.    The respondent Board has submitted that Advertisement

               as well as the manner the questions were arranged were very

               clearly illustrated and even a person of normal intelligence

               can understand the manner they have to give an answer to the

               corresponding questions. It has further been submitted that for

               the Art subject as like Social Science one of the compulsory

               subject was to opt History or Geography and optional subjectsPatna High Court CWJC No.13083 of 2012 (14)13were Political Science and Economics and the candidates

               were required to choose any two subjects one from either,

               History or Geography i.e. compulsory subject and one subject

               from Political Science and Economics or also from left out

               compulsory subject as optional subject. He further explained

               that candidates could have opted as History as a compulsory

               subject at the same time Geography is optional subject. In the

               question paper and answer sheet it was not arranged as first

               paper and second paper but the question and multiple choice

               answers were arranged as per the option given by the

               candidate in the form of the eligibility test. It also appears

               from Clause 11 of the Information Bulletins explained that in

               what manner the person has to opt the subject as in the note it

               has been mentioned that the candidate will have to opt any of

               the subject as compulsory subject which has been taught to

               him at the graduate level. For example if a person has done

               History Hon‟s he could have opted History as one of the

               subject and if a person has done Geography Hon‟s he may opt

               Geography as one subject but if a person is Hon‟s in Political

               Science as well as Economics and one of the optional subject

               of the candidate must be History or Geography. He cannot opt

               as second paper but was to opt subject as compulsory subjectPatna High Court CWJC No.13083 of 2012 (14)14in the manner the application form gave instruction was to

               solve question paper in the answer sheet as were arranged.

               Similarly the candidate of Mathematics will have to opt as

               Mathematics as compulsory subject and another one subject

               from Physics, Chemistry, Economics Computer Science, as

               optional subject and answer sheets were arranged in the

               manner and mode the question papers were arranged

               correspondingly. If a person has opted for Science he must

               have read Chemistry, Botany and Zoology at the graduate

               level the person will have to opt as compulsory subject as

               Chemistry and optional subject either Botany or Zoology was

               required to give the answer in the manner he opted subject in

               his application. It has further been submitted that test was

               conducted in computerized system as multiple choice answers

               were given and the right answer was required to be rounded

               corresponding to questions so arranged. Though after the

               general knowledge the questions were divided in different

               segment and multiple answers are arranged corresponding to

               the questions so arranged in two parts, question nos. 1 to 50

               are compulsory and was required to be solved by each

               candidate, has been categorized as teaching Art and reasoning.

               Segment 2 deals with Social Science, has been divided in fourPatna High Court CWJC No.13083 of 2012 (14)15categories, first is History, second is Geography, third is

               Political Science and forth is Economics, each section

               contains 50 questions, has been arranged as 51 to 101. As for

               example if a person has opted History and Geography

               according to his choice 51 to 100 is for History and 101 to

               150 is for Geography. Similarly if a person opted for History

               and Political Science he was required to answer as History 51

               to 100 and 101 to 150 as Political Science and so on so forth.

               In similar way also the person who has opted for Science

               subject Chemistry was compulsory subject, Botany or

               Zoology was optional subject. If the person is required to

               answer for Chemistry it was 51 to 100 and for Zoology or

               Botany it was 101 to 150. He has further submitted that there

               was no confusion at all even normal prudent intelligent person

               could have easily comprehend the mode and manner the

               candidate was required to give answer. So much so large

               number of candidates (33 lacs candidates) have appeared only

               few candidates like petitioner who could not succeed in the

               examination has filed this writ petition and has taken a strange

               ground for challenging the process of selection. He has further

               submitted that if they were under confusion, the manner they

               were to fill up form and to solve the answer sheet they werePatna High Court CWJC No.13083 of 2012 (14)16required to enter into correspondence with the Board. So

               much so they never raised grievance in the examination centre

               or thereafter nor any candidate has taken such plea in their

               respective representation but for the first time in the pleading

               of present writ they have raised this issue when they were not

               declared successful. He has further submitted that there is no

               allegation of malafide or any wrong was committed in the

               examination center nor any allegation has been raised about

               the copying or any wrongful act was committed while

               evaluating their respective answer sheets but only the point of

               argument is confined that the questions paper were not

               arranged in the manner according to their option as they opted

               History as first subject but marking was done treating the first

               as second. He has further submitted that list of selected

               candidate has already been published but the selected

               candidates have not been made party and as such the writ

               petitions suffer from non-joinder of necessary party. In this

               view of the matter, this Court may refuse to exercise the writ

               jurisdiction.17.         Learned counsel for the Board in support of his

               contention has raised that the Court should not go for a fishingPatna High Court CWJC No.13083 of 2012 (14)17enquiry and Court may refuse to unsettle the matter which has

               been settled in a normal circumstances. He has relied on the

               judgment in the case ofSadananda Halo and others Vs.

               Momtaz Ali Sheikh and others, reported in (2008) 4 SCC

               619 (paragraph nos.58, 59, 60 and 62).18.           In reply, learned counsel for the petitioner has

               submitted that the manner it has been arranged the candidates

               could not understand. He has accepted that he did not

               challenge the advertisement. Altogether 33 lacs candidates

               had appeared in the examination.19.         Judicial review is great weapon in the hand of the

               Judges, but the Judges must observe the constitutional limit

               set up by our parliamentary system upon the exercise of this

               beneficial power.20.             Judicial review as concerned with reviewing not

               merit of the decision but of decision making process.21.           The power of judicial review is neither unqualified

               nor un-limited. It has its own limitations. The scope and

               extent of the power that is so very often invoked has been the

               subject matter of several judicial pronouncements within thePatna High Court CWJC No.13083 of 2012 (14)18country and out side the country. When one talks about the

               judicial review one is instantly reminded of the classic of oft-

               quoted passage from Council of Civil Service Unions and

               others Vs. Minister for the Civil Service, reported in 1985

               AC 374 where Lord Diplock summed up the permissible

               grounds of judicial review:"......Judicial review has I think developed to a
                        stage today when without reiterating any analysis
                        of the steps by which the development has come
                        about, one can conveniently classify under three
                        heads the grounds upon which administrative
                        action is subject to control by judicial review. The
                        first ground I would call „illegality‟, the second
                        „irrationality‟ and the third „procedural
                        impropriety‟....By „illegality‟ as a ground for judicial
                        review I mean that the decision-maker must
                        understand correctly the law that regulates his
                        decision-making power and must give effect to it.
                        Whether he has or not is par excellence a
                        justiciable question to be decided, in the event of
                        dispute, by those persons, the Judges, by whom
                        the judicial power of the State is exercisable.By „irrationality‟ I mean what can by now
                        be succinctly referred to as „Wednesbury
                        unreasonableness‟. It applies to a decision which
                        is so outrageous in its defiance of logic or of
                        accepted moral standards that no sensible person
                        who had applied his mind to the question to be
                        decided could have arrived at it. Whether a
                        decision falls within this category is a question
                        that Judges by their training and experience
                        should be well equipped to answer, or else there
                        would be something badly wrong with our
                        judicial system....I have described the third head as
                        „procedural impropriety‟ rather than failure to
                        observe basic rules of natural justice or failure toPatna High Court CWJC No.13083 of 2012 (14)19act with procedural fairness towards the person
                        who will be affected by the decision. This is
                        because susceptibility to judicial review under this
                        head covers also failure by an Administrative
                        Tribunal to observe procedural rules that are
                        expressly laid down in the legislative instrument
                        by which its jurisdiction is conferred, even where
                        such failure does not involve any denial of natural
                        justice."22.         The above principle has been accepted by this Court

               in long line of decisions from time to time. One of the classic

               judgment that has been considered the area of judicial review

               in the administrative action in the case ofTata Cellular Vs.

               Union of India, reported in (1994) 6 SCC 651 and relevant

               portion of the same is as follows:"77. The duty of the court is to confine itself to
                          the question of legality. Its concern should be:(1) Whether a decision-making authority
                          exceeded its powers?(2) committed an error of law,
                          (3) committed a breath of the rules of natural
                          justice,
                          (4) reached a decision which no reasonable
                          tribunal would have reached or,
                          (5) abused its powers.Therefore, it is not for the court to determine
                          whether a particular policy or particular decision
                          taken in the fulfillment of that policy is fair. It is
                          only concerned with the manner in which those
                          decisions have been taken. The extent of the duty
                          to act fairly will vary from case to case. Shortly
                          put, the grounds upon which an administrative
                          action is subject to control by judicial review can
                          be classified as under:(i) Illegality: This means the decision-maker
                          must understand correctly the law that regulates
                          his decision-making power and must give effectPatna High Court CWJC No.13083 of 2012 (14)20to it.(ii)   Irrationality,  namely,        Wednesbury
                          unreasonableness.(iii) Procedural impropriety."23.In the case ofState of Punjab Vs. Gurdial Singh,

               reported in (1980) 2 SCC 471 where Krishna Iyer, J. noticed

               the limitations of judicial review and declared that the power

               vested in the superior courts ought to be exercised with great

               circumspection and that interference may be permissible only

               where the exercise of the power seems to have been vitiated

               or is otherwise void on well-established grounds: The Court

               has observed as follows(SCC0475 para 8):" 8..... The court is handcuffed in this
                         jurisdiction and cannot raise its hand against
                         what it thinks is a foolish choice. Wisdom in
                         administrative action is the property of the
                         executive and judicial circumspection keeps the
                         court lock jawed save where the power has been
                         polluted by oblique ends or is otherwise void on
                         well-established grounds. The constitutional
                         balance cannot be upset."24.         There is almost complete unanimity on the principle

               that judicial review is not so much concerned with the

               decision but, with the decision-making process. As a matter of

               fact, the juristic basis for such limitation on the exercise of the

               power of judicial review is that unless the restrictions on the

               power of the court are observed, the courts may themselvesPatna High Court CWJC No.13083 of 2012 (14)21under the guise of preventing abuse of power, be guilty of

               usurping that power (Chief Constable of the North Wales

               Police Vs. Evans, reported in (1982)3 All ER 141 (HL).25.          The court while exercising the power of judicial

               review does not substitute its judgment for that of the

               legislature or executive or their agents as to matters within the

               province of either, and that the court does supplant "the feel of

               the expert" by its own review, is also fairly well settled by the

               decisions of the Hon‟ble Supreme Court.In all such cases

               judicial examination is confined to finding out whether the

               findings of fact have a reasonable basis on evidence and

               whether such findings are consistent with the laws of the land

               (Union of India Vs. S.B. Vohra(2004) 2 SCC 150, Shri

               Sitaram Sugar Co. Ltd. Vs. Union of India, (1990) 3 SCC

               223 and Thansingh Nathmal Vs. Supdt. Of Taxes, AIR

               1964 SC 1419.26.           The Hon‟ble Supreme Court in the case ofHeinz

               India Private Limited and another Vs. State of Uttar

               Pradesh and others, reported in (2012) 5 SCC 443 has

               considered the scope of judicial review in paragraph 68 and

               has considered        the case of Reid Vs. Secy. of State for

               Scotland, reported in (1999)2 AC 512. It will be relevant toPatna High Court CWJC No.13083 of 2012 (14)22quote paragraph 68 of the aforesaid judgment:" 68. We may while parting with the
                         discussion on the legal dimensions of judicial
                         review refer to the following passage from
                         Reid V. Secy of State for Scotland which
                         succinctly sums up the legal proposition that
                         judicial review does not allow the court of
                         review to examine the evidence with a view to
                         forming its own opinion about the substantial
                         merits of the case. (AC pp.541 F-H and 542A)
                                   "Judicial review involves a challenge
                         to the legal validity of the decision. It does not
                         allow the court of review to examine the
                         evidence with a view to forming its own view
                         about the substantial merits of the case. It may
                         be that the tribunal whose decision is being
                         challenged has done something which it had
                         no lawful authority to do. It may have abused
                         or misused the authority which it had. It may
                         have departed from the procedures which
                         either by statute or at common law as a matter
                         of fairness it ought to have observed. As
                         regards the decisions itself it may be found to
                         be perverse, or irrational or grossly
                         disproportionate to what was required. Or the
                         decision may be found to be erroneous in
                         respect of a legal deficiency, as for example,
                         through the absence of evidence, or of
                         sufficient evidence, to support it, or through
                         account being taken of irrelevant matter, or
                         through a failure for any reason to take account
                         of a relevant matter, or through some
                         misconstruction of the terms of the statutory
                         provision which the decision-maker is required
                         to apply. But while the evidence may have to
                         be explored in order to see if the decision is
                         vitiated by such legal deficiencies it is
                         perfectly clear that in case of review, as
                         distinct from an ordinary appeal, the court may
                         not set about forming its own preferred view of
                         evidence."Patna High Court CWJC No.13083 of 2012 (14)2327.       This Court can only consider under the judicial review

               the decision making process not the decision unless the same

               suffers      from        illegality,   irrationality   (wednesbury

               unreasonableness) and procedural impropriety.28.        It is well settled principle of law that in the academic

               matters, unless there is clear violation of statutory provisions,

               the regulations or the notification issued, the courts should

               keep their hands off since those issues fall within the domain

               of the experts. The Court shall not generally sit in appeal over

               the opinion expressed by the expert of academic bodies

               normally it is wise and safe for the court to leave the decision

               in the hand of academic expert who are more conversant with

               the problem they faced and allow the expert body to take

               steps as it may think fit for the determination and maintenance

               of standards of teaching, examination and research but in

               certain cases the court may interfere when a case has been

               made out the decision, and action is tainted by malpractice,

               fraud or corrupt method has been applied in holding the

               examination and publication of the result.29.       This Court is entitled under the jurisdiction of judicial

               review to see that the expert body should maintain purity of

               selection process but also to ensure that no candidate mayPatna High Court CWJC No.13083 of 2012 (14)24earn undeserved advantage over the others by application

               erroneous question and wrong answers in multiple choice

               answer. The Hon‟ble Supreme court in the case ofBihar

               School Examination Board Vs. Subhas Chandra Sinha

               and others, reported in AIR 1970(1) SC 1269 the Court had

               occasion to examine the issue raised therein was alleged that

               when there was an allegation of mass copying and unfair

               means was adopted in the Examination centre the Court was

               of the view that if such an event had taken place the court in

               exercise of the writ jurisdiction should interfere and party

               should be given to justice. The Hon‟ble Supreme Court was of

               the view that the University are responsible for maintaining

               the standard and conduct of the examination. It will be

               relevant to quote paragraph nos. 14 and 15 of the aforesaid

               judgment:"14. Reliance was placed upon Ghanshyam Das
                          Gupta‟s case (supra) to which we referred
                          earlier. There the examination results of three
                          candidates were cancelled, and this Court held
                          that they should have received an opportunity
                          of explaining their conduct. It was said that
                          even if the inquiry involved a large number of
                          persons, the Committee should frame proper
                          regulations for the conduct of such inquiries but
                          not deny the opportunity. We do not think that
                          that case has any application. Surely it was not
                          intended that where the examination as a whole
                          was vitiated, say by leakage of papers or by
                          destruction of some of the answer books or byPatna High Court CWJC No.13083 of 2012 (14)25discovery of unfair means practiced on a vast
                          scale that an inquiry would be made giving a
                          chance to every one appearing at that
                          examination to have his say? What the Court
                          intended to lay down was that if any particular
                          person was to be proceeded against, he must
                          have a proper chance to defend himself and this
                          did not obviate the necessity of giving an
                          opportunity even though the number of persons
                          proceeded against was large. The Court was
                          then not considering the right of an examining
                          body to cancel its own examination when it was
                          satisfied that the examination was not properly
                          conducted or that in the conduct of the
                          examination the majority of the examinees had
                          not conducted themselves as they should have.
                          To make such decisions depend upon a full-
                          fledged judicial inquiry would hold up the
                          functioning of such autonomous bodies as
                          Universities and School Board. While we do
                          not wish to whittle down the requirements of
                          natural justice and fair-play in cases where such
                          requirement may be said to arise, we do not
                          want that this Court should be understood as
                          having stated that an inquiry with a right to
                          representation must always precede in every
                          case, however different. The Universities are
                          responsible for their standards and the conduct
                          of examinations. The essence of the
                          examinations is that the worth of every person
                          is appraised without any assistance from an
                          outside source. If at a centre the whole body of
                          students receive assistance and are managed to
                          secure success in the neighbourhood of 100%
                          when others at other centres are successful only
                          at an average of 50%, it is obvious that the
                          University or the Board must do something in
                          the matter. It cannot hold a detailed quasi-
                          judicial inquiry with a right to its alumni to
                          plead and lead evidence etc., before the results
                          are withheld or the examinations cancelled. If
                          there is sufficient material on which it can be
                          demonstrated that the university was right in its
                          conclusion that the examinations ought to bePatna High Court CWJC No.13083 of 2012 (14)26cancelled then academic standards require that
                          the university‟s appreciation of the problem
                          must be respected. It would not do for the Court
                          to say that you should have examined all the
                          candidates or even their representatives with a
                          view to ascertaining whether they had received
                          assistance or not. To do this would encourage
                          indiscipline if not also perjury.15. We are satisfied that no principle of natural
                          justice was violated in this case. The Board
                          through its Chairman and later itself reached the
                          right conclusion that the examinations at this
                          centre has been vitiated by practicing unfair
                          means on a mass scale and the Board had every
                          right to cancel the examination and order that a
                          fresh examination be held. There was no need
                          to give the examinees an opportunity of
                          contesting this conclusion because the evidence
                          in the case was perfectly plain and transparent.
                          We therefore set aside the order of the High
                          Court and ordered dismissal of the writ petition
                          but made no order as to costs."30.In the case ofChairman, J & K State Board of

               Education Vs. Feyaz Ahmed Malik and others, reported in

               (2000) 3 SCC 59 the Hon‟ble Supreme Court has considered

               the area where this Court can interfere in the wisdom of the

               expert academic body as the Court has held that it is an expert

               body consisting of persons coming from different walks of

               life who are engaged in or interest in the field of education

               and have wide experience. The decision of such an expert

               body should be given due weightage by courts but the Court

               under the judicial review can interfere to correct an error inPatna High Court CWJC No.13083 of 2012 (14)27complying with provisions of the             rules, regulation or

               notification and also if any, manifest injustice has been

               perpetrated. It will be relevant to quote paragraph 20 ofthe

               said judgment:"20. Coming to the case on hand, as noted
                          earlier, the High court has quashed the
                          notification issued by the Board as ultra viresArticle 14of the Constitution and ultra vires the
                          Act. Further the High Court has discussed at
                          length how the Board should proceed in the
                          matter and has issued directions regarding the
                          principles to be followed and matters to be borne
                          in mind by the Board while framing Rules and
                          has even issued directions as to what some of the
                          provisions of the Rules should be. From the
                          discussions in the impugned judgment it is clear
                          that the High Court has taken upon itself the task
                          of finding out a scheme to tackle the problem of
                          mass malpractice in examination. In our
                          considered view the approach of the High Court
                          in the matter is erroneous and this has vitiated the
                          judgment. In matters concerning campus
                          discipline of educational institutions and conduct
                          of examinations the duty is primarily vested in
                          the authorities in charge of the institutions. In
                          such matters the Court should not try to
                          substitute its own views in place            of the
                          authorities concerned nor thrust its views on
                          them. That is not to say that the court cannot at
                          all interfere with the decisions of the authorities
                          in such matters. The court has undoubtedly the
                          power to intervene to correct any error in
                          complying with the provisions of the rules,
                          regulations or notifications and to remedy any
                          manifest injustice being perpetrated on the
                          candidates. In judging the validity of a
                          notification containing provisions regarding steps
                          to be taken when a report of mass malpractice is
                          received it is to be kept in mind whether the
                          provisions contained in the notification arePatna High Court CWJC No.13083 of 2012 (14)28relevant for achieving the purpose for which the
                          notification is issued and if it is found that the
                          notification is relevant for and has a nexus with
                          the purpose to be achieved then the notification
                          cannot be said to be arbitrary and discriminatory.
                          The High Court has failed to keep this principle
                          in view while considering the validity of the
                          notification in question. A notification cannot be
                          struck down as discriminatory merely because in
                          implementing the same injustice is likely to be
                          suffered by some candidates. The impugned
                          judgment does not show that the decision to
                          strike down the two notifications is based on
                          grounds sound in law and justified on facts. It is
                          our considered view that the judgment of the
                          High Court is unsustainable and has to be
                          quashed."31.          The court in the case of mass copying or leakage of

               question papers or such other circumstances has interfered in

               the matter and has held that fair procedure would mean that

               the candidates taking part in the examination must be capable

               of competing with each other by fair means. One cannot have

               an advantage either by copying or by having fore knowledge

               of the question paper or otherwise. The Court has held that

               wide latitude should be shown to the Government or its agent

               and the Courts should not unduly interfere with the action

               taken by the Government which is in possession of necessary

               information and takes action upon the same. This view has

               been reiterated in the case ofB. Ramanjini and others Vs.

               State of A.P. and others, reported in (2002) 5 SCC 533.Patna High Court CWJC No.13083 of 2012 (14)2932.In the case ofEast Coast Railway and another Vs.

               Mahadev Appa Rao and others, reported in (2010) 7 SCC

               678 failed candidates to qualify in the test made a

               representation complaining about the manner in which test

               was conducted made allegation of providing defective

               typewriting machine to them and they were placed at a

               disadvantaged position vis-à-vis successful candidates. In that

               case the Divisional Manager of the Railway cancelled the test

               conducted on typewriting machine and directed to hold fresh

               typewriting test which was impugned by some of the

               candidates. The Court has tested the issue on the touch stone

               ofArticle 14of the Constitution as it strikes at arbitrariness

               and restores fairness and rule of law. The Court has

               considered under what circumstances the administrative

               action of can be said to be arbitrary. It will be relevant to

               quote paragraph nos. 19, 20,22 and 23 ofthe said judgment:"19. Black‟s Law Dictionary describes the
                              term "arbitrary‟ in the following words:"Arbitrary.- 1. Depending on individual
                              discretion; specif., determined by a judge
                              rather than by fixed rules, procedures, or law.2. (Of a judicial decision) founded on
                              prejudice or preference rather than on reason
                              or fact. This type of decision is often termed
                              arbitrary and capricious."20. To the same effect is the meaning given to
                              the expression "arbitrary" by Corpus Juris
                              Secundum which explains the term in thePatna High Court CWJC No.13083 of 2012 (14)30following words:" Arbitrary.- Based alone upon one‟s will, and
                              not upon any course of reasoning and exercise
                              of judgment; bound by no law; capricious;
                              exercised according to one‟s own will or
                              caprice and therefore conveying a notion of a
                              tendency to abuse possession of power; fixed
                              or done capriciously or at pleasure, without
                              adequate determining principle, non-rational,
                              or not done or acting according to reason or
                              judgment; not based upon actuality but
                              beyond a reasonable extent; not founded in
                              the nature of things; not governed by any
                              fixed rules or standard; also, in a somewhat
                              different sense, absolute in power , despotic,
                              or tyrannical; harsh and unforbearing. When
                              applied to acts, „arbitrary‟ has been held to
                              connote a disregard of evidence or of the
                              proper weight thereof; to express an idea
                              opposed to administrative, executive, judicial,
                              or legislative discretion; and to imply at least
                              an element of bad faith, and has been
                              compared with „willful‟.22. Dealing with the principle governing
                              exercise of official power Prof. De Smith,
                              Woolf and Jowell in their celebrated books on
                              Judicial review of Administrative Action
                              emphasized how the decision-maker-invested
                              with the wide discretion is expected to
                              exercise that discretion in accordance with the
                              general principles governing exercise of
                              power in a constitutional democracy unless of
                              course the statute under which such power is
                              exercisable indicates otherwise. One of the
                              most fundamental principles of the rule of law
                              recognized in all democratic systems is that
                              the power vested in any competent authority
                              shall not be exercised arbitrarily and that the
                              power is exercised that it does not lead to any
                              unfair discrimination. The following passage
                              from the above is in this regard apposite:" We have seen in a number of
                              situations how the scope of an official power
                              cannot be interpreted in isolation from generalPatna High Court CWJC No.13083 of 2012 (14)31principles governing the exercise of power in
                              a constitutional democracy. The courts
                              presume that these principles apply to the
                              exercise of all powers and that even where the
                              decision-maker is invested with wide
                              discretion, that discretion is to be exercised in
                              accordance with those principles unless
                              Parliament clearly, indicates otherwise. One
                              such principle, the rule of law, contains within
                              it a number of requirements such as the right
                              of the individual to access to the law and that
                              power should not be arbitrarily exercised. The
                              rule of law above all rests upon the principle
                              of legal certainty, which will be considered
                              here, along with a principle which is partly
                              but not wholly contained within the rule of
                              law, namely, the principle of equality, or
                              equal       treatment        without       unfair
                              discrimination."23. Arbitrariness in the making of an order by
                              an authority can manifest itself in different
                              forms. Non-application of mind by the
                              authority making the order is only one of
                              them. Every order passed by a public
                              authority must disclose due and proper
                              application of mind by the person making the
                              order. This may be evidence from the order
                              itself or the record contemporaneously
                              maintained. Application of mind is best
                              demonstrated by disclosure of mind by the
                              authority making the order. And disclosure is
                              best done by recording the reasons that led the
                              authority to pass the order in question.Absence of reasons either in the order passed
                              by the authority or in the record
                              contemporaneously maintained is clearly
                              suggestive of the order being arbitrary hence
                              legally unsustainable."33.         One of the recent judgments the matter arising from

               this Court in the case ofRajesh Kumar and others vs. StatePatna High Court CWJC No.13083 of 2012 (14)32of Bihar and others, reported in 2013(4) PLJR 398(SC) the

               matter went to the Hon‟ble Supreme Court where the Court

               has occasion to examine the problem that out of 100 questions

               49 answers of "Model Answer Key" were found to be wrong

               and two questions were found erroneous and one question was

               found repeated. In that case this court constituted team of

               experts referred the "Model Answer Key" for examination by

               two experts, namely Dr. Professor C.N. Sinha and Professor

               K.S.P. Singh, associated with NIT, Patna who found several

               answers to be wrong and in addition two questions were also

               found to be wrong while two others were found to be have

               been repeated. Question no.100 was also found to be defective

               as the choices in the answer key were printed but only

               partially. This Court in the Single Bench quashed the whole

               selection but the Division Bench modified the order declared

               that the entire examination was not required to be cancelled as

               there was no allegation of corrupt motive or corrupt practice

               directed for holding the fresh examination in Civil

               Engineering Paper only. The          Division Bench further

               directed, those appointed on the basis aforesaid selection were

               allowed to continue until publication of the fresh result, any

               of them failed to matric grade on the basis fresh examinationPatna High Court CWJC No.13083 of 2012 (14)33was given chance to appear in another examination. The

               Hon‟bel Supreme Court has modified the order of the

               Division Bench holding that answer-sheet should be

               examined, re-examined by the correct "Model Answer Key‟

               and Hon‟ble Court passed the order in following terms:" 19. The submissions made by Mr Rao are not
                         without merit. Given the nature of the defect in
                         the answer key the most natural and logical way
                         of correcting the evaluation of the scripts was to
                         correct the key and get the answer scripts re-
                         evaluated on the basis thereof. There was, in the
                         circumstances, no compelling reason for directing
                         a fresh examination to be held by the Commission
                         especially when there was no allegation about any
                         malpractice, fraud or corrupt motives that could
                         possibly vitiate the earlier examination to call for
                         a fresh attempt by all concerned. The process of
                         re-evaluation of the answer scripts with reference
                         to the correct key will in addition be less
                         expensive apart from being quicker. The process
                         would also not give any unfair advantage to
                         anyone of the candidates on account of the time
                         lag between the examination earlier held and the
                         one that may have been held pursuant to the
                         direction of the High Court. Suffice it to say that
                         the re-evaluation was and is a better option, in the
                         facts and circumstances of the case."34.       This case is no applicable to the facts of the present

               case.35.In the case ofUniversity Grants Commission and

               another Vs. Neha Anil Bobde (Gadekar), reported in (2013)Patna High Court CWJC No.13083 of 2012 (14)3410 SCC 519 where the Court has considered the power of

               judicial review in the matter of action taken by UGC where

               primarily duty was cast upon them that in consultation with

               the University and their bodies is concerned, all such step

               would be taken which may think fit for promotion and co-

               ordination of University education and for determination and

               maintenance of standards of teaching, examination and

               research in the University for the proper performing its

               function under the act. The issue was raised, whether UGC

               has power to fix the final criteria for those students who had

               obtained minimum marks in all the papers, before the final

               declaration of result. The Court while considering the scope of

               juridical review in paragraph nos. 22 and 31 ofthe said

               judgmenthas held as follows:"22. We have elaborately referred to various
                          statutory provisions which would clearly indicate
                          that UGC as an expert body has been entrusted by
                          theUGC Actthe general duty to take such steps as
                          it may think fit for the determination and
                          maintenance of standards of teaching, examination
                          and research in the universities. It is also duty-
                          bound to perform such functions as may be
                          prescribed or as may be deemed necessary by the
                          Commission for advancing the cause of higher
                          education in India. UGC has also got the power to
                          define the qualification that should ordinarily be
                          required for any person to be appointed to the
                          teaching staff of the university and to regulate the
                          maintenance of standards and coordination of work
                          and faculties in the universities.Patna High Court CWJC No.13083 of 2012 (14)3531. We are of the view that, in academic
                          matters, unless there is a clear violation of
                          statutory provisions, the regulations or the
                          notification issued, the courts shall keep their
                          hands off since those issues fall within the domain
                          of the experts. This Court inUniversity of Mysore
                          v. C.D. Govinda Rao,Tariq Islam v. Aligarh
                          Muslim UniversityandRajbir Singh Dalal v.
                          Chaudhary Devi Lal Universityhas taken the view
                          that the court shall not generally sit in appeal over
                          the opinion expressed by the expert academic
                          bodies and normally it is wise and safe for the
                          courts to leave the decision of the academic
                          experts who are more familiar with the problem
                          they face, than the courts generally are. UGC as an
                          expert body has been entrusted with the duty to
                          take steps as it may think fit for the determination
                          and maintenance of standards of teaching,
                          examination and research in the university. For
                          attaining the said standards, it is open to UGC to
                          lay down any "qualifying criteria", which has a
                          rational nexus to the object to be achieved, that is,
                          for maintenance of standards of teaching,
                          examination and research. The candidates declared
                          eligible for Lectureship may be considered for
                          appointment as Assistant Professors in universities
                          and colleges and the standard of such a teaching
                          faculty has a direct nexus with the maintenance of
                          standards of education to be imparted to the
                          students of the universities and colleges. UGC has
                          only implemented the opinion of the experts by
                          laying down the qualifying criteria, which cannot
                          be considered as arbitrary, illegal or discriminatory
                          or violative ofArticle 14of the Constitution of
                          India."36.       In the case of State of Orissa and others Vs.

               Prajnaparamita Samanta and others, reported in (1996) 7

               SCC 106 where the candidates failed in the examinationPatna High Court CWJC No.13083 of 2012 (14)36approached by various writ petitions. The contentions of the

               students was that 38 questions were (a) either outside the

               syllabus, or (b) were such for which key answers given were

               wrong while the correct answers were available in the

               alternative answers given against the said questions, or (c) for

               which the alternative answers given were all wrong, or (d)

               such for which more than one alternative answers provided

               were correct. The Court has held, though the Courts normally

               do not act as an appellate court over the decision of the

               examining bodies but the Court in that case took pains and

               examined the said grievances of the students and ultimately

               came to the conclusion, nine questions for which the answers

               could be more than one. On that conclusion, the High Court

               directed the MBBS/BDS Selection Board to re-evaluate the

               answer books of those of the examinees who had secured a

               minimum of 105 marks and after re-evaluation of the nine

               questions concerned, give admission to those of the

               examinees who had secured a minimum of 114 marks but the

               relief was confined to those who approached the High Court.

               The matter went to the Hon‟ble Supreme Court and whole

               issue was referred to the expert provided its report and found

               that the complaint made by the students were correct andPatna High Court CWJC No.13083 of 2012 (14)37decision of the High Court was up-held.37.         In the case of Sadananda Halo in the State of Assam

               there was drive of selection of 5500 posts of Armed

               Constables which was initiated by advertisement. Selection

               list was challenged, the learned Single Judge made great deal

               of effort, upheld the selection of 10 district and selection of

               other rest district was set aside. The matter ultimately reached

               to Hon‟ble Supreme Court, the Hon‟ble Court considered how

               far the writ court can make enquiry of facts of the case dealing

               with power of judicial review, held, under judicial review,

               Court may refused to enter into the roving enquiry of facts. It

               will be apt to quote in paragraph nos. 58, 59, 60 and 62 has

               held as follows:"58. It is settled law that in such writ petitions
                     a roving inquiry on the factual aspect is not
                     permissible. The High Court not only engaged itself
                     into a non-permitted fact-finding exercise but also
                     went on to rely on the findings of the amicus curiae,
                     or as the case may be, the scrutiny team, which in our
                     opinion was inappropriate. While testing the fairness
                     of the selection processes wherein thousands of
                     candidates were involved, the High Court should
                     have been slow in relying upon such microscopic
                     findings. It was not for the High Court to place itself
                     into a position of a fact-finding commission, that too
                     more particularly at the instance of those petitioners
                     who were unsuccessful candidates. The High Court
                     should, therefore, have restricted itself to the
                     pleadings in the writ petition and the say of the
                     respondents. Unfortunately, the High Court took it
                     upon itself the task of substituting itself for thePatna High Court CWJC No.13083 of 2012 (14)38Selection Committee and also in the process assumed
                     the role of an appellate tribunal which was, in our
                     opinion, not proper. Thus, the High Court converted
                     this writ petition into a public interest litigation
                     without any justification.59. It is also a settled position that the unsuccessful
                     candidates cannot turn back and assail the selection
                     process. There are of course the exceptions carved
                     out by this Court to this general rule. This position
                     was reiterated by this Court in its latest judgment inUnion of India V. S. Vinodh Kumar, (2007) 8 SCC
                     100 where one of us (Sinha, J.) was a party. This was
                     a case where different cut-off marks were fixed for
                     the unreserved candidates and the Scheduled Caste
                     and Scheduled Tribe candidates. This Court in para
                     10 of its judgment endorsed the action and recorded a
                     finding that there was a power in the employer to fix
                     the cut-off marks which power was neither denied
                     nor disputed and further that the cut-off marks were
                     fixed on a rational basis and, therefore, no exception
                     could be taken.The Court also referred to the
                     judgment inOm Prakash Shukla V. Akhilesh Kumar
                     Shukla, 1986 Supp SCC 285 where it has been held
                     specifically that when a candidate appears in the
                     examination without protest and subsequently is
                     found to be not successful in the examination, the
                     question of entertaining the petition challenging such
                     examination would not arise. The Court further made
                     observations in para 34 of the judgment to the effect:(S. Vinodh KumarCase, SCC p.107 para 19)
                           "19......34. There is thus no doubt that while
                     question of any estoppel by conduct would not arise
                     in the contextual facts but the law seems to be well
                     settled that in the event a candidate appears at the
                     interview and participates therein, only because the
                     result of the interview is not "palatable" to him, he
                     cannot turn round and subsequently contend that the
                     process of interview was unfair or there was some
                     lacuna in the process."In para 20 this Court further observed that there are
                     certain exceptions to the aforementioned rule.
                     However, the Court did not go into those exceptions
                     since the same were not material.60. In our opinion the first basic thing for such aPatna High Court CWJC No.13083 of 2012 (14)39selection process would be the lack of bona fides or,
                     as the case may be, mala fide exercise of powers by
                     those who were at the helm of selection process.
                     Both the courts below have not recorded any finding
                     that they found any mala fides on the part of any of
                     the state officials who headed the interviews. On the
                     other hand the tenor of the judgments shows that the
                     whole process did not suffer from mala fides, lack of
                     bona fides, bias or political interference.InUnion of
                     India V. Bikash Kuanar, (2006)8 SCC 192 this Court
                     observed in para 14 thus: (SCC p.195)
                          "14. When a Selection Committee recommends
                     selection of a person, the same cannot be presumed
                     to have been done in a mechanical manner in absence
                     of any allegation of favouritism or bias. A
                     presumption arises in regard to the correctness of the
                     official act. The party who makes any allegation of
                     bias or favouritism is required to prove the same. In
                     the instant case, no such allegation was made. The
                     selection process was not found to be vitiated. No
                     illegality was brought to our notice."62. We have already shown in the earlier part of our
                     judgment that there were proper advertisements
                     issued and reasonable procedure was chalked out in
                     the earlier meetings held by the authorities, even the
                     guidelines were defined and the interviews proceeded
                     along those guidelines. A mere expression of doubts
                     only on the ground of large number of candidates
                     appearing and their not being objectively and
                     properly tested without any further material, in our
                     opinion, cannot by itself render the whole selection
                     process illegal."38.        In similar type of case issue has been raised in this

               Court in C.W.J.C. No.9569 of 2013 where allegation was

               made of wrong method was applied is evaluating the answer

               sheet, the proper method of scaling down/ moderation was not

               applied with an intention to apply uniform standard forPatna High Court CWJC No.13083 of 2012 (14)40evaluation of the answer sheet. The Court while addressing

               this issue held that "we as a court of law will not sit in appeal

               over the method adopted by examining to ascertain its

               accuracy. Suffix that the commission has taken steps to bring

               itself abreast of preventive system and we do trust that

               Commission will come out with appropriate role to make the

               system uniform effective and condone."39.            In the present case there is no allegation of wrong

               method was adopted, malpractice have been committed nor

               they have raised any grievance that any of the answer given in

               the answer book in the shape of multiple choice answer were

               wrong, repeated or otherwise suffered from other errors.

               Primarily in this case the petitioners have raised issue that

               they could not understand the manner the questions were

               arranged and they were to give reply. They have further

               submitted that though they have given a particular subject as

               first opted paper and another as second opted paper and

               question paper corresponding answer sheet were not arranged

               in that order that was the reason for committing mistake. The

               plea has been taken question of different subjects were

               arranged in such erratic manner, no prudent person can

               decipher the mode and manner of arrangement of questionsPatna High Court CWJC No.13083 of 2012 (14)41and corresponding OMR sheet caused for failure to succeed in

               the test. This Court feels that the plea is not sustainable as

               they understood the advertisement, filled up the form in the

               manner prescribed so much so the representation which they

               have filed before the Board they have not averred a word

               about the wrong manner of arrangement of question and OMR

               sheet/answer sheet. In the writ petitions for the first time they

               ingeniously made out their ground of wrong arrangement of

               questions corresponding OMR Sheet. The plea, the manner

               the questions were placed cannot be said scientifically and

               properly have been arranged, cause of committing error in

               giving answer is not acceptable to this Court. One of the

               major issue they have raised questions were divided two

               segments first deals with Teaching and Reasoning arranged

               in 1 to 50 compulsorily required to be solved by each

               candidates, second section deals with choice sections

               candidate who opted, Social Science, the each candidate was

               to choose compulsorily either History or Geography. One

               more subject was to be opted out of four subjects, in the

               following manner, if a candidate makes a choice, either

               History, he may opt, either Geography, Economics or Political

               Science. Similarly, if a candidate chooses, Geography, he mayPatna High Court CWJC No.13083 of 2012 (14)42choose either History, Economics or Political Science. In the

               same manner if the person has chosen Mathematics he has to

               choose Mathematics as must and second subject, any subject

               mentioned in that category, in similar way, if any candidate

               opted Science, he was required to elect, Chemistry as first

               subject and second subject either Botany or Zoology. Second

               Section of questions were arranged in 51/101, 52/102 -----

               100/150. If a candidate has chosen History part he was

               required to solve in 51 ....to 100 and second subject was to be

               solved in 100 to 150 in OMR computerized sheet and similar

               manner Mathematics or Science portion was to be solved. On

               examination of application form, guideline and OMR sheet

               give complete and clear instruction of the manner question

               paper was to be solved. On examination aforesaid documents,

               there was no provision of first choice or second choice.

               Question nos.51/101 for each subject either in social science

               or in the mathematics and science. They have taken plea that

               in some cases they have selected particular subject as first

               selected paper which was his Honours paper         and second

               selected paper in which they have been taught as pass course

               subject. As explained above, there was no question of

               selection of Hon‟s. or pass course subject. This Court is not aPatna High Court CWJC No.13083 of 2012 (14)43court of appeal only this Court under judicial review can only

               interfere when the manner the questions arranged in such way

               that no prudent candidate would be able to decipher and give

               answer which has been provided in the question paper

               corresponding to the answer sheet. In the present writ

               petitions huge number of candidates have appeared only small

               portion have come forward raising issue of not making proper

               arrangement of question paper corresponding to the answer

               sheet, could not decipher, the manner questions were to be

               solved. If they could not understand the manner they were to

               fill up the form or understand the manner they were to solve

               question, after publication of Information Bulleting or even at

               the examination centre, they could have raised this issue

               earlier but even after the publication of result in none of the

               representation such plea has been taken, now they cannot be

               allowed to change their stand for their convenience. If a

               person participates in the selection process in event of failure

               toqualify, he/they cannot be allowed to turn round and

               challenge the selection. As there is no allegation of providing

               wrong question and corresponding answer, no question was

               repeated in "Model Answer Key" nor there is allegation of

               fraudulent act was committed in conducting the examinationPatna High Court CWJC No.13083 of 2012 (14)44in evaluation nor in publications of the result, this Court is not

                         inclined to interfere with the matter.40.        Accordingly all the aforesaid writ petitions are

                         dismissed.Vinay/-                                             (Shivaji Pandey, J)