ORDER
M.V. Tamaskar, J.
1. This order shall govern the disposal of Misc. Petition Nos. 2540/93, 2766/93, 2767/93, 2883/93, 2441/93 and 2987/93 also.
2. The petitioners who are law graduates and some of whom are practising Advocates having been enrolled in the State Bar Council of Madhya Pradesh, applied for appearing in the competitive test held by the M. P Public Service Commission for appointment to the State Junior Judicial Service. Advertisement No. 0292 was issued on 21st August, 1992 and published in all local news papers and the 'Rojgar Aur Nirman' published by the M. P. Public Service Commission. Under the advertisement, there were 108 seats for the general category, 25 for Scheduled Tribes and 10 for Scheduled Castes. Clause 10 of the advertisement is important in order to show as to what would be the nature of examination and procedure for selection. It was stated that a written examination will be held on 31-12-1992 (Sunday). The examination was to be held in the subjects of law and general knowledge and it was also mentioned that in the attached schedule, the syllabus for the same was given. There would be only one question paper of 200 marks of the duration of three hours. It was specified that three times the number of posts advertised would be called for interview and the marks for interview would be 25. The marks of the interview would be added to the marks obtained at the written examination and merit will be decided accordingly. It was also stated that right to call for interview would be that of this Public Service Commission and the same would be final. The Schedule to the advertisement has, however, not been filed along with the petition.
3. The Public Service Commission had indicated the mode of examination in the application form itself. There was only one paper both for general knowledge and law. Total marks were 200 for 200 questions out of which 75 were for general knowledge and 125 for the subject of law. Every candidate appearing in the test-examination was handed over a question paper and an answer sheet. The questions were objective and not descriptive in nature. For every question there were four proposed answers out of which only one was correct. The candidate was required to mark one answer out of four which according to him was correct. The question papers were to be collected from the candidates before they leave the examination hall.
4. The answer book, which was a single sheet, contained all the two hundred questions and showed different answers in circles A,B,C,D and the candidates were required to mark them by hard black pencil, pointing the correct answer according to him. No other sign was required to be made as the mode of feeding the computer was only by darkening the circle. A diagram was given how to mark the answer i.e. darkening only one circle for each question as shown at the reverse of the answer sheet under the heading 'Instructions for Marking'. The said instructions are reproduced hereunder :-
USE HB PENCIL ONLY
1. Do not use ink or ball point pen, otherwise the answer sheets will not be evaluated.
2. Mark your answer only in the appropriate space against the number corresponding to the question you are answering.
3. Darken only one circle for each question as shown below.
Wrong Wrong Wrong Correct000 0000 000 0004. Mark should be dark and completely fill the circle.
5. Make the marks only in the spaces provided. Please do not make any stray marks on the answer sheet.
6. Rough work must not be done on the answer sheet. Use the space for rough work given at the end of the question paper.
7. Information regarding Roll No., category and Post serial No. below, should be filled only with pencil.
5. Shri Sudhir Kumar Ghodgaonkar, who is Deputy Controller (Examination), M. P. Public Service Commission, Indore has filed a detailed affidavit showing the procedure laid down for holding examinations, examination of answer sheets, tabulation work and preparation of merit list. It has been stated in the affidavit that the advertisement has been issued in consultation with the High Court of M. P. and document has also been placed showing consent of the High Court before issuing the advertisement. The said document is ANNEXURE R3, dated 29th November, 1991, The advertisement was approved by the High Court.
6. After stating as to how the centres were to be set up for holding examinations, appointment of commissioners of the Divisions for arrangement and supervision, sending of the instructions and reading out of the instructions at the time of the examination, other minor instructions to be observed by the examinees are also given. It is stated that after the examination, answer books are given to the Centre Superintendent who would put all the answer sheets in an envelope and seal the envelope and the said envelopes would be forwarded to the Commission in sealed registered parcel. The answer sheets from various centres were received by the Commission by 30-1-1993.
7. It is also stated that the commission maintains a list of experts for all subjects for examining the complaints with regard to correctness of questions and answers. It is stated that the list of experts is prepared on the basis of handbook of Indian Universities. The list is revised from time to time. In the said list, besides Professors and Teachers, the names of Sr. I.A.S. Officers and Retired Judges are also included. It is further stated that as and when an examination for a particular post is to be held, the Chairman selects the names of experts out of the list to whom the work of setting up of question paper and preparing the key answer is to be entrusted. The Chairman also selects the names of experts for moderating the question paper.
8. It is further stated in the above affidavit that the moderator after moderating the question paper and the Model answer, puts them in different envelopes which are sealed by him. The identity of the setter or moderator is not disclosed. The question paper or the model answers do not have any identification mark. The question paper and model answers are sealed in order to keep secrecy. After the said question papers and model answers are received, they are placed before the Chairman. He picks up at random a set of envelopes containing question papers and sends it for printing to the press. No member of the Commission knows anything about the question papers except the Chairman who also picks one set of question papers and does not know regarding the contents therein, in order to keep secrecy. The key answers are sealed and kept in the custody of the Controller.
9. It is stated that after the printing of the question papers, they are received in sealed envelopes and complete secrecy is maintained. They are sent to the different centres in sealed covers. The answer sheets are also sent to the Commissioners of the Division which are required to be distributed at the time of examination. The correct answers are never disclosed to anyone. Manuscript question paper is returned by the printer to the Commission and is kept in double lock.
10. On receipt of the complaints, the question papers and the key answers are sent to the experts who after going through the complaints and the key answers send back the same to the Commission along with their opinion for taking final decision regarding the correctness of the key answers.
11. The Controller, in the instant case, after receiving the complaints and the suggestions of the expert, found eight questions to be not correct and the Commission took a decision to give one mark to each of the candidate irrespective of the fact whether the question was tried or not. As such, all the candidates appearing in the examination were treated equally and no prejudice was caused to any of the candidates.
12. The Commission does not interfere with the affairs of the experts and moderators and accepts their opinion being the experts in the particular field.
13. Having narrated the whole procedure, the Commission also filed one affidavit showing that though against Question No. 199, in the key answer, there is a Cross (X) mark but the computer agency was informed that Question No. 199 is to be valued treating the answer 'd' as correct.
14. It was also stated that Shri B. K. Ashapure is a staff officer in the office of Public Service Commission and he was in no way associated with the examination conducted by P.S.C. for selection of Civil Judges.
15. In the present petition, the petitioners, have challenged the method of examination as not being fair on the grounds that - (i) the manner of marking the answer sheet was in a peculiar manner and any defect in marking may not be correctly examined by the computer and there may be number of mistakes; (2) it was also alleged that 30 questions were such in which either the questions were vague or there were two answers to one question or that the questions were wholly wrong.
16. It was vehemently argued that there were gross manipulations and there was no fair valuation. It was also alleged that more than 100 candidates from Delhi had been successful because of the manipulation in the valuation and it was urged that Shri Ashapure whose daughter also appeared in the examination was incharge of the examination and as such the whole examination is vitiated.
17. As regards the last submission, an affidavit has been filed to which reference has already been made above. The affidavit has been filed by Shri Haridas Gargav, Under Secretary, M. P. Public Service Commission, Indore stating that Ashapure was only a Staff Officer and was in no way connected with the examination and as such the allegation is totally false and has to be rejected outright.
18. As regards the framing of questions, it must be remembered that this is a competitive test where knowledge, memory and general knowledge have to be tested and as such, the question would not ordinarily be one which would have a straight answer. The candidate must prepare himself in such a way that even when the question is tricky he should be able to select the correct answer. Competitive tests are meant for selecting the best and in that background, the question papers cannot be said to be either arbitrary or not having any rational with the examination for which it was held. The question paper was in two parts - first part dealing with general knowledge which ordinarily good students should possess and the other dealing with law which was a major part having 125 marks with equal number of questions, The question papers are set in order that an average candidate may be able to solve it, but for selection some merit has to be shown and there comes the role of tricky questions which can be solved only by person having better merit and not mere average. As such, by this method of examination, the purpose of selecting the best is achieved and it cannot be said that any prejudice has been caused to anyone.
19. As regards marking, earlier, the valuation of the answer books was done manually. Now, there being facility and availability of computers, the valuation has become more easy which is a swift and sure method. For the particular mode of valuation through computer, clear instructions and indications were given to the candidates to mark the circle in respect of correct answers. The said method was made known to the candidates at the time of examination and they knew what was to be done. Each candidate who appeared at the examination followed the same method and as such it cannot be said that the candidates were prejudiced by the marking system. It was alleged that the answer sheet was so small, so also the circle, that it was impossible for a person to read the question and find out the correct answer and then encircle the correct answer of that question. This argument is nothing but deserves to be rejected being untenable on any count.
20. The only substantive argument that appears to be and which requires consideration is whether the particular number of questions pointed out by the petitioners were either vague or had also other answer than the one shown in the key answer, or that the questions were totally wrong, and with these back-grounds, the matter has to be scrutinised.
21. Before entering into the examination of the aforesaid questions and its correctness or otherwise, it would be proper to refer to the decision of the Supreme Court in Kanpur University v. Samir Gupta, AIR 1983 SC 1230, wherein in similar circumstances, the Supreme Court stated that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. It is also stated that if it is found that the question is wrong on the basis of text books and authorities, it would be penalising the students for not giving art answer which accords with the key answer which is demonstrated to be wrong. It has been further observed by the Supreme Court as under :-
'........Secondly, a system should be devised by the State Government for moderating the key answers furnished by the paper setters. Thirdly, if English questions have to be translated into Hindi, it is not enough to appoint an expert in the Hindi language as a translator. The translator must know the meaning of the scientific terminology and the art of translation. Fourthly, in a system of 'Multiple Choice Objective type test' care must be taken to see that questions having an ambiguous import are not set in the papers.....'
22. Still more guidance can be obtained from Abhijit Sen v. State of U.P., AIR 1984 SC 1402, wherein it has been held that the answer given by the student should be found to be correct as determined by the Court. Merely because both the answers, namely, the one given by the student as well as the key-answer, were found to be wrong with reference to the correct answer as determined by the Court, the student cannot succeed. Further, we may also refer to the decision of this Court, in Anjali Saxena v. Chairman, P.E.B., 1990 MPLJ 81, wherein it has been held where the key answer is correct and some other answer is also correct, the key answer should be accepted. For the said purpose, we may also refer to another decision of this Court in Ku. Monica Singhai v. State of M. P., M. P. No. 2576/92.
23. In these petitions, no specific challenge to the questions and key answers is found, due to the practice of taking back both question paper and answer book, and the petitioners were unable to raise specific challenge. Taking into consideration the grave prejudice that might be caused to the petitioners on that count, we heard the petitioners on all such questions which required consideration by this Court. Learned Additional Advocate General Shri S. L. Saxena, though raised such an objection, ultimately agreed that the questions and key answers be scrutinised in wider interest.
24. It will be useful to refer to para 5 of the return which reads as under:-
'The Commission received complaints from various quarters alleging therein that out of four answers to a particular question none was correct in some of the cases.. In some cases, it was alleged that more than one answers to a question were correct. The Commission examined these complaints, summoned experts both in Law and General Knowledge and requested them to examine the key answers in the light of the complaints received by the Commission. The expert opined that out of general knowledge questions, in respect of one question No. 49 two answers 'B' and 'D' are correct and so far question No. 52 is concerned, no answer is correct. According to opinion given by the expert in Law, who was a retired Principal of a Govt. College, and had been a Professor of Law, none of the answers to questions Nos. 110, 120, 123, 143, 149, 157 and 196, are correct. Thus, on the basis of the expert opinion, the Commission, came to the conclusion that none of the answers to 8 questions is correct and in respect of question No. 49, two answers in the answer sheet are correct. The Commission, took a decision that 1 mark for above given 8 questions be given to all candidates irrespective of the fact whether be has solved such questions or not. In respect of question No. 49 (General Knowledge), a decision was taken that 1 mark should be given to all candidates, who had marked either answer 'B' or 'D' as both are correct. The Commission forwarded the corrected key along with answer sheets to computer agency on 12-2-1993............'
Since the Commission itself has considered eight key answers as wrong and in respect of one question two answers were possible, the Commission has awarded equal number of marks to all the candidates for the said questions. The argument of learned counsel for the petitioners was that according to them 30 questions were either vague, ambiguous, totally wrong or two answers were possible and as such the whole examination is vitiated. Keeping this attack in view, now we take up the considerations of disputed questions, namely, Q. Nos. 20,21, 26, 31, 33, 45, 52, 88, 90, 99, 100, 103, 104, 105, 106, 116, 121, 126, 154, 158, 159, 165, 166, 167, 182, 188, 194, 196, 197, 199 and 200. Out of these questions, in respect of nine, no serious arguments were put forth nor any authorities, books or literature were produced. As such, those questions are being eliminated at the outset. The said questions are :
Q. No. 154 - A lets a field to B at a rent of Rs. 1,000 and then transfers the field to C. B pays rent to A in good faith even after the transfer, having no notice of the transfer. C files a suit against B for recovery of rent due after the transfer. Is C entitled to recover rent from B?
Key Ans. : (a) C has a right to recover rent from the date of transfer
(b) The transfer is invalid
(c) B has paid rent to A in good faith, having no notice of transfer; so he cannot receiver
(d) There is no relation between B and C
KEY ANSWER - 'C'
Q. No. 159 - B is a merchant residing in Calcutta and he has an agent A, at Bombay, to sell his goods in Bombay. A sues B in Bombay, claiming a balance due upon an account in respect of dealing between A and B. Whilst this suit is pending in Bombay, B files a suit against A in Calcutta for an account and for damages caused by A's alleged negligence. Therefore
Answers : (A) Calcutta Court must not proceed with trial of B's suit without permission from Bombay Court.
(B) The suit in the Bombay Court, being instituted prior in time, must be proceeded with.
(C) Both the suits may be continued at the same time.
(D) The Calcutta Court may proceed with trial of B's suit.
KEY ANSWER - B
Q. No. 165 - As regards the amount claimed to be set off:
Answers : (A) It must be an ascertained sum of money
(B) It must be unascertained sum of money
(C) It must be partly unascertained sum of money
(D) It must be a claim for damages only.
KEY ANSWER - A
Q. No. 166-An affidavit is a written statement in the name of a person called-.
Answers :- (A) Plaintiff
(B) Defendant
(C) Petitioner
(D) Deponent
KEY ANSWER - D
Q. No. 167 - A court executing a decree -
Answers : (A) can go behind the decree
(B) must take the decree as it stands
(C) has power to entertain any objection as to the validity of the decree
(D) can set aside the decree
KEY ANSWER -B
Q. No. 188 - Where a landlord recovers possession of any accommodation from he tenant, he shall not re-let it within -
Answers : (A) One year
(B) Six months
(C) Two years
(D) One month
KEY ANSWER - C
Q. No. 197 - Which one of the following is a non-judicial matter ?
Answers : (A) Dispute regarding right of cattle on pasture land
(B) Mutation upon succession
(C) Dispute regarding rent or revenue
(D) Question of allotment of land
KEY ANSWER -D
Q. No. 199 - The revenue or rent assessed on each holding shall be first charged -
Answers : (A) on a decree of a revenue Court
(B) on a decree of a civil Court
(C) on salary of the owner
(D) on rents profits or produce thereof
KEY ANSWER - D
Q. No. 200 - An arrear of rent or revenue may be recovered by -
Answers : (A) Applying to the competent civil Court
(B) Applying to the competent revenue Court
(C) Attachment and sale of movable property
(D) Execution of a decree of a Court
KEY ANSWER -C
25. We now take up the remaining questions one by one :-
Q. No. 20 - Which metal is refined at Khetri in Rajasthan .
Answers : (A) Copper
(B) Zinc
(C) Lead
(D) Mica
KEY ANSWER - B
Submission of the petitioners is that the Key Answer (B) is totally wrong. Reliance is placed on extracts from a Book on General Knowledge by Maniram Agrawal, stating that at Khetri in Rajasthan there is a Copper Refinery and not that of Zinc. We have examined the relevant material as also statement contained in India 1990 - a Government of India Publication (Ministry of Information and Broadcasting - Research and Reference Division) at Page 568 under the heading 'HINDUSTAN COPPER LIMITED' wherein it is mentioned -
'Hindustan Copper Limited (HCL) is the sole producer of ..... In 1972, the erstwhile Indian Copper Corporation Ltd., a company incorporated in England, was nationalised and merged with HCL. HCL has seven operating units at (i) Khetri Copper Complex in Jhunjhunun distt., Rajasthan...........'
There is Zinc Refinery in Rajasthaa, but at Mochia and not at Khetri. Thus, the key answer (B) is totally wrong. It should be (A).
Q. No. 21 - In which of the following is Vitamin B-1 found ?
Answers : (A) Egg
(B) Milk
(C) Meat
(D) Yeast
KEY ANSWER - D
The argument of the petitioners is that all the answers ABCD contained Vitamin-B. He has relied on General Studies Manual issued by U.P.S.C. Civil Services Preliminary Examinations, 1991. As against this, the learned Additional Advocate General has brought to our notice the statement contained in Year Book 1991, Competition Success Review Series at page 430, which reads --
'Vitamin Bl complex is found in yeast, green vegetables, cereals, etc...........''
The argument of the petitioners is that all the four answers would be correct. On the other hand, the learned Additional Advocate General submits that what is required to be seen is which is the nearest to the key answer, that is to say, yeast contains the highest proportion of Vitamin Bl. Reliance is placed on judgment of this Court reported in Anjali v. Chairman, P.E.B., 1990 MPLJ Page 80. wherein it has been held that --
'......It may be that the answer ticked as correct by them may not be wholly wrong or may even be closely correct to the key answer, but then, as we have pointed out above, unless the key answer is demonstrated to be 'wrong', the key answer should be accepted as the correct answer.'
In the said view of the matter, in the instant case, the key answer is taken to be correct and there is no infirmity in the same.
Q. No. 26 - Who was the Law Minister when the Constitution of India was being framed ?
Answer : (A) K. M. Munshi
(B) Rajendra Prasad
(C) Vallabh Bhai Patel
(D) Bhim Rao Ambedkar
KEY ANSWER - D
The petitioners submit that Answer (A) is correct i.e. K. M. Munshi. But, the petitioners are wholly wrong in their submission inasmuch as Dr. Bhim Rao Ambedkar was the first Law Minister of India as will be clear from the book 'Dr. Ambedkar : Life and Mission', a book written by Dhananjay Keer. It reads at pages 394 and 395 as. under :-
'On August 3 the names of the Cabinet Ministers were announced among which Ambedkar's name appeared. That day he was in Bombay.......As soon as it was known that Ambedkar was to be the Law Minister of New India, his friends, admirers and the Press showered their good wishes and congratulations upon his success that was a feat from dust to doyen............An untouchable who was kicked out from carts and segregated in schools in his boyhood...............hated as a reviler of the Mahatma and decried as an Executive Councillor, became now the first Law Minister of a free nation and the chief architect of the Constitution to define the will, aim and vision of India.'
Thus, the key answer is correct and no further discussion is required.
Q. No. 31 - Which State docs Kuchipudi dance belong to ?
Answers : (A) Tamil Nadu
(B) Orissa
(C) Kerala
(D) Andhra Pradesh.
KEY ANSWER - A (i.e. Tamil Nadu)
This answer, however, appears to be wrong in view of the statement contained in 'India 1990' at pages 105 and 106 under the Heading 'PERFORMING ARTS'. The relevant part reads as under :--
'DANCE.
Dance in India has an unbroken tradition of over 2,000 years........... Classical dance forms arc based on ancient dance discipline and have rigid rules of presentation. Important among them are Bharat Natyam, Kathakali, Kathak, Manipuri, Kuchipudi and Odissi. Bharat Natyam has roots in Tamil Nadu. Kathakali is a dance drama of Kerala and Kathak is principal classical dance of north India revitalised as a result of fusion of Mughal influence with India culture. Manipur has contributed a delicate, lyrical style of dance, Manipuri. Kuchipudi is a dance-drama from Andhra Pradesh. Its themes are culled from Ramayana and Mahabharata..............'
From the above, it is clear that Kuchipudi is a dance-drama from Andhra Pradesh. The key answer is, therefore, wrong.
Q. No. 33 - Which States arc the main producers of rubber ?
Answers : (A) Kerala and Tamil Nadu
(B) Kerala and Karnataka
(C) Karnataka and Tamil Nadu
(D) Kerala and Maharashtra.
KEY-ANSWER - B
The submission of the petitioners is that main producers of rubber are Karnataka and Tamil Nadu, for which they rely on a book namely 'AWADH SAMANYA GYAN DIGDARSHAN'. However, it does not show as to which States are the main producers of rubber, whereas in 'India 1990' at page 776, under the subject 'States and Union Territories' (relating to Karnataka) while dealing with the topic Agriculture', it is stated thus :
'The State stands second in the value of products per hectare and also second in total income from forests. Sandal wood, teak wood, rubber, bamboo, rose wood, etc. are the major forest produces.'
Yet another discussion will be found at page 779 in respect of Kerala, under the same subject i.e. 'States and Union Territories' and under the same topic i.e. Agriculture', wherein it has been stated :
'Banana, pineapple, mango and jack-fruit are major fruit crops. Rubber, tea, coffee and cardamom are major plantation crops.'
Again, at page 814, yet another statement may be found under the same subject and the same topic in respect of Tamil Nadu, which reads -
'Major forest products are timber, sandal wood, pulp wood and fuel wood. Minor forest products are bamboo, eucalyptus, rubber, tea (green leaves), cashew, honey, ivory, etc.'
Thus, it will be seen that though rubber plantation is to be found in all the three States, but the question is which are the main producers of rubber and as such the key answer (B) i.e. Kerala and Karnataka will be assumed to be correct as in Tamil Nadu rubber is only a minor forest produce. The key answer is, therefore, correct. The submission made by the petitioners based on a general description contained in the book referred to above is not correct.
Q. No. 45 - An Indian scientist invented wireless independently of Marconi. Name him.
Answers : (A) J. C. Bose
(B) G. V. Raman
(C) S. M. Bose
(D) S. S. Bhatnagar
KEY ANSWER - A
In this connection, a reference may be made to 'Year Book 1991' at page 747, wherein under the heading 'Persons : Past' it is stated -
'Bose, J. C. (1858-1937) : He did original work in electricity. Independently of Marconi, he is believed to have achieved a measure of success in wireless transmission.................'
The key answer, therefore, is absolutely correct and the argument of the petitioners that it should be 'C is without substance and is rejected.
Q. No. 88 - Which of the following statements is not correct ?
Answers : (A) the Prime Minister presides over the meetings of Cabinet.
(B) The Prime Minister can remove any Minister who refuses to co-operate with him.
(C) The Prime Minister and his Ministers are responsible to the Lok Sabha.
(D) When the Prime Minister resigns, the senior most Minister in the Council of Ministers is appointed Prime Minister.
KEY ANSWER - D
It requires no argument that when the Prime Minister resigns, the senior most Minister in the Council of Ministers is not appointed Prima Minister. The statement at (D) is, therefore, not correct. All the three other statements are correct. In this view of the matter, no further discussion is necessary. The Key answer is correct. Argument of the petitioners is that the correct answer should be (B) as the Prime Minister cannot remove any Minister who refuses to co-operate with him. The said statement is not correct as on the recommendation of the Prime Minister the President removes the Minister concerned. As regards the other two statements, they are also correct as it is Prime Minister who presides over the meetings of Cabinet and the Prime Minister and his Ministers are responsible to the Lok Sabha. Thus, the key answer is correct and requires no further discussion.
Q. No. 90 - The freedom of speech of a member of Parliament inside the Parliament is Answers: (A) Subject to restrictions
(B) Similar to that of a citizen
(C) As may be determined by the Parliament from time to time.
(D) Almost absolute
KEY ANSWER -D
Article 105 of the Constitution deals with powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof and provides that subject to the provisions the Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. The question relates to freedom of speech of a member of Parliament inside the Parliament and as such out of the four alternatives suggested, (D) appears to be correct inasmuch as the freedom of speech is almost absolute. The argument of the petitioners is that it is subject to restrictions by virtue of Article 105 of the Constitution as reproduced above. Therefore, the question is whether the answer 'subject to restrictions' would also be correct. True it is that the right of a member of Parliament to speech inside the Parliament is subject to restrictions but the key answer 'D' which speaks about 'almost absolute' is equally correct. When two answers are possible, the key answer which is also correct and is more nearer has to be accepted as already pointed out earlier. The key answer is, therefore, correct.
Q. No. 99 - To avail of the benefit of mistake of fact under Section 79 of the Indian Penal Code it must be shown that a man acted in the bona fide belief on reasonable grounds, said the Supreme Court in the following cases -
Answers : (A) Vishwanth v. State of U.P.
(B) Jaswant Rai Manilal Akhaney v. State of Bombay.
(C) Amjad Khan v. The State.
(D) Ram Chandra v. State of U. P.
KEY ANSWER - B
The question asked is a bit tricky. The students who appear for selection in the Junior Judicial Service should have some basic knowledge of leading cases. In Jaswant Rai v. State of Bombay, AIR 1956 SC 575, the proposition as stated has been considered at page 583. No other answer than the key answer is correct and the petitioners have not been able to show that any other case mentioned in answers (A), (C) and (D) was in respect of 'mistake of fact' under Section 79 of the Indian Penal Code. Thus, the key answer given is correct.
The argument of the petitioners is that the question is absolutely vague. It is not correct to say so. It is stated that the year in which the said judgment was delivered was not given nor any exact citation has been mentioned. It is common knowledge that leading cases are known by names of parties itself such as Maneka Gandhi v. Union of India, etc. Thus, the argument of the petitioners cannot be accepted that the question being vague, it should be held to be totally misleading. This argument deserves nothing but rejection.
Q. No. 100 - The distinction between Section 34 and section 149 oft he Indian Penal Code has been well explained by the Supreme Court in -
Answers: (A) Shukla v. State of Rajasthan.
(B) Nanak Chand v. State of Punjab.
(C) K. C. Mathew and Ors. v. State of T.C.
(D) Pramatha Natha Talukdar v. Saroj Ranjan Sarkar.
KEY ANSWER - B
The key answer i.e. Nanak Chand v. State of Punjab, AIR 1955 SC 274, is correct. For the same reasons given in respect of Question No. 99, the argument of the petitioners is rejected.
Q. No. 101 - A person, at the time of doing an act by reason of unsoundness of mind, is incapable of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or considered criminally liable. This is called the defence of insanity. It is provided in the IPC in section -
Answers : (A) 84
(B) 85
(C) 96
(D) 100
KEY ANSWER - A
Section 84 of the Indian Penal Code reads as under :-
'Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.'
A reading of the above provision would immediately show that Section 84 is the correct answer. Therefore, no further discussion is necessary. The answer is absolutely correct.
Q. No. 105 - With intention to cause injury, A hit B with a Lathi. He gave six blows. One of them hit B on his head. B became unconscious. A ran away. B died of the injury after 20 days of receiving the injury. Is A liable for
Answers : (A) Murder
(B) Culpable homicide not amounting to murder
(C) Grievous hurt
(D) None of these
KEY ANSWER - B
The proposition stated clearly shows that there was no intention to commit murder, and the intention was only to cause grievous hurt. As B died after twenty days on account of the injury, the key answer i.e. (B) (culpable homicide not amounting to murder) is absolutely correct and no further discussion in necessary.
Q. No. 116 - 'A' is lunatic. During one of his sane intervals he accepts a proposal for the sale of one of his fields to B for 1,000. Before B could take possession of the field A lapsed into madness again. Therefore -
Answers : (A) B cannot enforce the contract at all
(B) B must wait till A again regains a sane interval and then enforce the contract
(C) the contract is valid and enforceable notwithstanding A having again gone mad
(D) None of the above is correct.
KEY ANSWER - C
In the above connection, it would be advisable to refer to Section 12 of the Indian Contract Act which reads as under
'12. A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.'
Illustration (a) reads -
'(a) A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those intervals.'
From the above provisions, it would be clear that the Key answer (C) is correct.
Q. No. 121 - A proposes to appoint an engineer on Rs. 4,500/- per month to construct a house near a bank and to dig an underground passage to the vault of the Bank. B accepts.
Answers : (A) The contract is valid and binding.
(B) The portion of the contract relating to the construction of a house is valid.
(C) One part of contract cannot be severed from the other part, so contract is wholly void.
(D) None of these.
KEY ANSWER - C
Not much argument was required to show that the contract would be void being against public policy. The key answer is correct.
Q. No. 124 - The shopping hours in a town are fixed by Municipal law. Shops must close at 9 p.m. 'A' enters into a contract with 'B' of the same town to supply 100 bags of almonds the same day at a fixed price. The vehicle of 'A' reaches the shop of 'B' at 10 p.m. Next day prices fall.
Answers : (A) A can enforce payment.
(B) B can refuse payment on the ground that contract was not performed.
(C) A is bound to supply next day at the lower rate obtaining that day.
(D) None of the above applies.
KEY ANSWER - B
There was a clear stipulation that the contract was to be performed by a particular time. That having not been done, it was open for B to refuse payment on the ground that contract was not performed. Therefore, key answer B is correct and no further discussion is necessary.
Q. No. 141 - A is indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that on a previous occasion, C said that the wound was not given by A or in his presence.
Answers : (A) The evidence is not admissible after three months.
(B) The evidence, impeaching the credit of a witness is not admissible.
(C) The evidence is not admissible as it would amount to contradicting the former statement.
(D) The evidence is admissible.
KEY ANSWER - B
The question had some legal implications. Leading questions can only be asked when they relate to matters which are introductory. Now, the question is when they cannot be asked. The question is rather in the negative, and as such one may be required to look in Sections 141 and 142 of the Evidence Act which read as under :
'141. Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. When they must not be asked.
142. Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief', or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.'
Thus, in the instant case, there are two answers possible i.e. A and B. The key answer is B. When both the answers are correct, and as per the statutory law the leading questions could be asked as regards introductory matters as also on undisputed facts. The key answer in the instant case appears to be not wholly correct and A would equally be correct and A and B cannot be said to be alternative answers in order to determine which is the nearest one. In the instant case, introductory as well as undisputed both will be nearer to the correct answer and as such the submission of the petitioners in respect of this question will have to be upheld.
Q. No. 158 - Point out which order is not a decree of the Court?
Answers : (A) An order directing stay of suit.
(B) An order remanding a suit for fresh disposal.
(C) An order returning the plaint for presentation to the proper Court.
(D) An order rejecting a plaint.
KEY ANSWER - D
The question is to point out which order is not a decree. Key answer D points out an order rejecting a plaint as not a decree. That answer is totally incorrect with reference to the question asked. A, B and C alone could be the answers which are not decree of the Court. The answer is totally wrong and as such the submission made by the petitioners is accepted.
Q. No. 182 - The Magistrate competent to tender pardon to an accomplice at any stage of investigation is :
Answers : (A) Judicial Magistrate of the First Class.
(B) Special Magistrate.
(C) Chief Judicial Magistrate.
(D) Magistrate of the second class.
KEY ANSWER - C
To answer this case one has to refer to Section 306, Criminal Procedure Code which reads as under :-
'306. (1) with a view to obtaining the evidence of any person supposed-to have been directly concerned in or supposed to have been directly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence and the Magistrate of the first class inquiring into, or the trial of the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether principal or abettor, in the commission thereof............'
A bare perusal of the said provision would disclose that the Chief Judicial Magistrate, or a Metropolitan Magistrate at any stage of investigation or inquiry or trial of the offence, and the Magistrate First Class inquiring into or trying the offence, at any stage of the inquiry or trial may tender a pardon. Now, the question is to name the Magistrate competent to tender pardon to an accomplice at any stage of investigation. According to Section 306(1), Criminal Procedure Code the Chief Judicial Magistrate and a Metropolitan Magistrate are competent to tender pardon at any stage of investigation. We do not think that the key answer C is incorrect even with reference to Section 306. The question is only in relation to tendering a pardon during investigation, and not inquiry. Had the question been in respect of pardon during investigation or trial also, the question would have been equally correct. We do not find any ambiguity or illegality in the answer. The question as well as the key answer are correct.
Q. No. 194 - Appeal against an order passed by the Tahsildar under M. P. Land Revenue Code shall lie to :
Answers : (A) Sub-Divisional Officer
(B) Collector.
(C) Commissioner.
(D) Board of Revenue
KEY ANSWER - B
An appeal against an order passed by the Tahsildar would lie to the Sub-Divisional Officer and not to the Collector. A reference to Section 44 of the M. P. Land Revenue Code makes it absolutely clear. The said section reads as under :
'44. Appeal and appellate authorities - (1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made thereunder -
(a) If such order is passed by any Revenue Officer, whether or not the officer passing the order is invested with the powers of the Collector to the Sub-Divisional Officer; ...........'
The key answer is, therefore, not in accordance with the provisions of law. Argument of the petitioners that the key answer is not correct and the answer should be A' is accepted.
Q. No. 196 - Revision in revenue matters lies against an order passed by Collector to -
Answers : (A) Collector
(B) Board of Revenue
(C) High Court
(D) State Government
KEY ANSWER - B
Obviously, the answer is to be found in Section 50 of the M. P. Land Revenue Code. Explanation to Section 50 says that all revenue officers shall be deemed to be subordinate to the Board. Thus, if a revision against the order of Collector would lie to the Board of Revenue and not to the Commissioner as argued by the petitioners. The key answer accords with the provisions of the Act and as such we do not find any infirmity in the same.
26. Thus, we have examined all the questions pointed out by the petitioners and found that the key answers in respect of only questions Nos. 20, 31, 141, 158, 182 and 194 are wrong. As such we hold that all candidates are entitled to get such number of marks that they would have ordinarily got had the key answer been correct as pointed out by this Court in respect of the question referred to above.
27. The Public Service Commission is, therefore, directed by a writ of mandamus that it shall award equal number of marks to each of the candidates appearing in the examination as they would have been entitled in respect of six questions declared to be wrong, and if they are found to be coming within the zone of consideration such candidates shall be interviewed by the Commission. It is all the more necessary in view of the fact that the merit of the candidates is required to be fixed by taking into consideration the marks obtained in written as well as oral test. The P.S.C. is also directed to issue the mark-list to each of the candidates in order that they may know their position in the order of merit. Denial of the same by the P.S.C. is rather unfortunate. The mark-list shall be issued at an early date.
28. We do not think that examination held by the P.S.C. is vitiated on any count that the examination was not conducted according to the rule of fair play, or that the question papers set and the answer sheets given were prejudicial rendering the whole examination as void. All other contentions are rejected.
29. Since the decision in this case would have adversely affected a number of persons, hearing was given to all Advocates who wanted to argue the matter. All petitions and applications for intervention filed before this Court were entertained and this order/judgment shall govern the disposal of all such petitions and applications.
30. We have also enquired from Shri Saxena, learned Additional Advocate General, regarding the number of persons succeeding in the examination from Delhi. He stated that only six persons have qualified from Delhi. Thus, the allegation that 100 persons from Delhi have qualified because of the manipulations and leakage of question paper is nothing but far cry and totally baseless.
31. Since the matter of selection is to be considered with top priority by the Public Service Commission, the Commission shall see that the tabulation of marks is done as early as possible by adding the marks given in respect of answer declared to be wrong - say within a period of one month from the date of this order. The Commission shall also take further steps for interview immediately thereafter.
32. All the petitions are disposed of accordingly. There shall be no order as to costs. Security amount, if deposited, shall be refunded to the petitioners.