Nagendra Rai and R.S. Garg, JJ.

1. By this appeal under Section 10 of the Letters Patent Appeal, the appellant seeks to challenge the correctness, validity and propriety of the order dated 11 -9-2001 passed by the Hon'ble Single Judge in C.W.J.C. No. 9746 of 2001. By the order impugned, the learned Single Judge has declared that on re-valuation of the copy the respondent/petitioner in the writ petition secured 63 marks and directed the Bihar Public Service Commission (in short 'the Commission') to reconsider the case of the petitioner and further observed that if as a result of such consideration, the writ petitioner is found to have secured more marks than the candidates last recommended, his name too shall be recommended at its proper place in the merit list.

2. The facts in brief leading to this Letters Patent Appeal are that C.W.J.C. No. 9746/2001 was filed by respondent No. 1, Pramod Kumar Srivastava for a direction upon the Bihar Public Service Commission to produce his answer book of General Science subject and re-evaluate the answers. The writ petitioner was a candidate at the 25th Judicial Service Examination for appointment of Munsifs in the Bihar Subordinate Judicial Service.

3. It was contended by the petitioner that he had fairly done well in the General Science paper and other subjects and award of 35 marks only in the said General Science paper were illegal. It was contended by him that he secured 65 marks in General Hindi, 88 marks in General knowledge, 100 marks in Law of Evidence and Procedure, 74 marks in Law of Transfer of Property, 86 marks in Hindu Law and Mohammadan Lal (Personal Laws) and 75 marks in Law of Contracts and Torts. As the marks given to the petitioner were below the expectation of the petitioner, he submitted before the Hon'ble Single Judge that his copy should be-evaluated. The Hon'ble Single Judge on 3-8-2001 considering that number of fallacious petitions seeking the same relief were coming to the Court, therefore, in the case in hand, if the petitioner was ready and willing to deposit a sum of Rs. 5,000/- then order of production of the copy and its re-evaluation may be passed with further condition that if the marks remained unchanged then the amount so deposited may be forfeited and in case the petitioner secures better marks then the amount will be returned. On 7-8-2001 the petitioner agreed to deposit the amount and later on deposited the same. The Hon'ble Single Judge directed the Commission to produce the answer-book on 17-8-2001. The Hon'ble Single Judge observed in his judgment that on perusal of the answers it appeared to be a case of wrong evaluation. The petitioner also tried to persuade the Hon'ble Single Judge by submitting that increase of 5 marks would make material difference and the petitioner's name was likely to be recommended for appointment. It appears from the order passed by the Hon'ble Single Judge that he called upon Sri Azfar Hassan, learned Counsel for the Patna University to get the answer-book evaluated by expert teacher through the Principal, Science College, Patna. A photo copy of the answer-book (after blacking out the marks awarded in the main checking) along with the question paper was handed over for the needful. The Hon'ble Single Judge also observed that before taking this course, he took Sri Azfar Hassan (a science graduate) in confidence regarding correctness of the evaluation made by the Commission's examiner. The learned Single Judge further observed that Sri Azfar Hassan shared the opinion of the Court that the petitioner deserved at least 5 more marks than what were awarded to him. On 27-8-2001 the photo copy of the answer-book was returned to the Court with the information that the copy was examined by two teachers, one of Physics subject and another of Biology subject. The said teachers had awarded 65 marks to the petitioner.

4. After this was declared in the open Court, learned Counsel for the Commission was asked to take instructions in the matter. The Commission filed its affidavit inter alia, submitting that the procedure adopted by the Court was not correct. There are no rules for re-evaluation and if such a procedure is adopted by the Court then the same would open the flood gate for other candidates to come out with similar (sic) which may not be palatable either to the Court or to the Commission. The Hon'ble Single Judge took an exception to the plea and conduct of the Commission and observed that it was human to commit mistake but defending the same is bad and it may give a different colour to the said mistake. The learned Single Judge further observed that the Commission was taking a technical view of the matter and was raising unnecessary technical pleas despite the fact that the petitioner had secured 63 marks but on wrong evaluation of the copy he was awarded only 35 marks. Granting the petition in favour of the petitioner, the above referred directions were issued by the Hon'ble Single Judge.

5. Dr. Sadanand Jha, learned Senior Counsel for the appellant submitted before us that the procedure adopted by the learned Single Judge was patently illegal and contrary to law. He also submitted that assuming that the key answers to some questions were wrong then every candidate had suffered the same fate and under such circumstances, the learned Single Judge should not have interfered in the matter especially when the results were declared long back and number of Munsifs have already been appointed. He also submitted that the Court had taken unto itself the duty of an Appointing Officer, which the Court did not possess. He submitted that unless a candidate, who comes within the zone of consideration faces the viva voce/interview, which is a must, his name cannot be recommended for appointment. He has placed his strong reliance upon certain judgments of this Court and the Supreme Court to contend that if somebody has to get the advantage then than advantage should flow in favour of all or in favour of none.

6. On the other hand Mrs. Veena Rani Prasad, learned Counsel for the original petitioner submitted that the petitioner, for the first time was informed on 11-1-1001, after publication of the final result, by supplying a list of his mark-sheet. According to her, prior to 11-1-2001 the petitioner had no idea that what particular marks were awarded to him and before 11-1-2001 he could not come to the Court making a complaint that his copy was wrongly evaluated. It is also submitted by her that if the petitioner has come to the Court and on careful consideration of the case it is found that he is entitled to the relief then simply because others may come to this Court seeking the similar relief, injustice cannot be meted to the petitioner.

7. We have heard learned Counsel for both the parties and perused the materials on record.

8. On 19-4-1999 Advertisement No. 18/99 was published by the Bihar Public Service Commission for 25th Judicial Services Competitive Examination, 1999. On 25-8-1999 a writ petition being C.W.J.C. No. 4827/1999 throwing challenge to the examinations was dismissed by Hon'ble Mr. Justice N. Pandey observing that the said writ petitioner was not entitled to an order or re-evaluation of his answer-book. From 25-1-2002 to 31-1-2000 written tests for the said 25th Judicial Service Examination were held. Thereafter the interview letters were issued to the successful candidates. Between 24-7-2000 and 3-8-2000 interview/viva voce tests were held. On 4-8-2000 the final result was published.

9. It is not disputed that on 1-1-2001 the original petitioner Pramod Kumar Srivastava received the mark-sheet issued by the Bihar Public Service Commission. Thereafter he filed the writ application and succeeded in the same.

10. The Bihar Public Service Commission placing its strong reliance upon two judgments of the Supreme Court in the matter of Inder Pal Yadav v. Union of India Anr., 1985 BLJR 457 and Prahlat Singh and Ors., v. Union of India etc., 1985 PUR 39, submitted that if some people can secure advantage of an order passed by the Court then other similarly placed person should also get the benefit of the said orders of the Court. Sri Jha, learned Counsel shows fairness of the Commission and contends that if the copy is to be re-evaluated in case of one then it should be re-evaluated in case of all. According to him, if all have suffered because of improper evaluation of the answer-books and one person is held entitled to re-evaluation of the answer-books then none should remain unremedied and even if the others are not before this Court, the equity would come into play and all such other copies should be re-evaluated so that no injustice is caused to any candidate.

11. So far as the plea of the appellant-Bihar Public Service Commission based on the findings recorded in the matter of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR 1990 SC 434, is concerned we must accept the plea that the High Court should not act as an Appellate Authority against the orders passed or the actions taken by the Bihar Public Service Commission. It would also be correct to say that the High Court should not have directed the Bihar Public Service Commission to recommend the case of the petitioner for his appointment in case his marks are found more against last man recommended. The observations made by the Supreme Court in the matter of State of Punjab and Ors. v. Constable Subhash Chander and Ors., 1994 Supp (1) SCC 465, certainly would help the petitioner.

12. Though some other judgments have also been relied upon the learned Counsel for the appellant but we do not think that all such judgments are required to be referred in our judgment to unnecessary burden this judgment, Some of the judgments cited by the Counsel for the appellant are in anticipation of a remote possibility. One of the judgments is in reference to the jurisdiction of the Court that if the persons likely to be affected have not been joined as parties, the petition should not be entertained or in absence of the rules, the Public Service Commission can continue with its work on the basis of the guidelines or circulars, if the same are not opposed to the public policy and true spirit of law.

13. The basic question, in our considered opinion in the present matter, is that if the Public Service Commission Rules do not provide for re-evaluation of the answer-books then should the Court interfere in the matter and direct re-evaluation and thereby make an inroad into the rules framed by the Public Service Commission.

14. The question that in a given case if the key answer is wrong then what would be the effect of the same is no more res Integra.

15. In the matter of Abhijit Sen and Ors., v. State of U.P. and Ors., AIR 1984 SC 1402, the Supreme Court had observed as under:

'It is now settled that if the 'key-answer' (i.e., the answer which the paper setter has supplied to the University as the correct answer and which has been fed into the computer) is shown to be demonstrably wrong, that is to say, such as no reasonable body of men will versed in the particular subject would regard it as correct and if the answer given by a student is correct, if regard be had to acknowledged text-books or books which the student was expected to read and consult before appearing for the test it would be unfair to penalise the student for not giving an answer which accords with the 'key-answer' that is to say with an answer, which is demonstrated to be wrong. However, in a situation where both the answers, namely, the one given by the student as well as the 'key-answer' supplied by the paper-setter, were found to be wrong with reference to the correct answer as determined by the Court the student cannot succeed.'

16. From the above referred observations of the Supreme Court it would clearly appear that the question is to be judged on the basis of the 'key-answer' and not otherwise. If the 'key-answer' is wrong and is demonstrably wrong and the answer given by the candidate is correct then he would be awarded full marks. If the 'key-answer' is wrong and the answer given by the candidate is also wrong then in such a case the candidate cannot take advantage of the wrong key answer because he himself did not know the correct answer. In the said matter, the Supreme Court awarded 4 marks to the candidate finding that one of the answer was demonstrably wrong and the answer given by the candidates was correct. In the present matter, unfortunately it does not appear from the entire exercise conducted by the Hon'ble Single Judge that he ever referred the 'key-answers' to the experts of the Patna Science College at the time of re-evaluation of the answer-books. It is not known to anybody that the 'key-answers' were wrong or not. It is also hot known to anybody that on what strength or on what particular foundation, the said two teachers/experts of the Science College re-evaluated the answer-books. The only fact which appears from the record is that the answer-book was examined by two experts without the help and assistance of the 'key-answers' and thereafter sixty three marks were granted to the petitioner. In our considered opinion unless it is shown to the Court that the 'key-answers' are demonstrably wrong and the answers given by the candidates are absolutely correct, it would not be possible for any Court to interfere in the matter; the jurisdiction of the Court to interfere would commence when the 'key answer' is shown to be demonstrably wrong and thereafter it will have to be seen that the answer given by the candidates is absolutely correct. In the present matter, as observed above, but for the re-evaluation without the aid of the 'key-answers', the petitioner was awarded more marks than what were awarded to him. It has been maintained by the learned Counsel for appellant before the learned Single Judge and even before us that every examiner had awarded marks to each and every student, who came under his scrutiny in accordance with the ''key-answers'. The appellant-Bihar Public Service Commission, in fact, wants to contend that the advantage, if any, was taken by all and if it was a disadvantage, it was suffered by all'. According to them, if any person rushes to the Court then the Court ordinarily should not violate the secrecy of the examination system and direct for re-evaluation. The Commission says that if the answers are wrong only then the Court can interfere in the matter and not just for the sake of asking.

17. It would be necessary for us to observe that if the whole process is vitiated then everything will have to start afresh but if the process is not vitiated and one or two out of thousands suffered, that too under some mistaken belief, then in such a matter the thousands cannot be allowed to suffer by re-opening the entire issue.

18. In the matter of Ganesh Prasad Yadav and Ors., v. The State of Bihar and Ors., (1995)2 PLJR 170, this Court had to meet almost the same situation. In the said matter it was shown to the High Court that the 'key-answers' to four questions were wrong. It was submitted by the Public Service Commission before the Court that two answers were incorrect, therefore, they would grant two marks. For the other two questions, this Court observed that the 'key-answers' were demonstrably wrong. The Division Bench observed as under :

'36. No doubt, there are mistakes in the alternative answers or responses to the four questions, but on that basis it cannot be said that the Commission adopted any unfair means or acted in an unfair manner, on the other hand, the aforesaid mistakes appear to have been committed by the experts to whom the work of setting of questions and their suggestive answers was entrusted. It cannot be said that there was unfair treatment to the non-selectees in particularly. All the candidates including the successful candidates have answered the same set of questions and in that view of the matter either all the candidates have suffered equally or took advantages of wrong suggestive answers. In that view of the matter, in spite of the aforesaid errors, in my view, it would not be proper to quash the preliminary test for the aforesaid defects.'

19. So far as the question of recommendation to appoint the petitioner is concerned, in our considered opinion, it will go contrary Bihar Public Services (Judicial Branch) (Recruitment) Rules, 1955. A conjoint reading of Rules 15 to 19 would make it clear that after a particular person is selected in the written test, he will have to face the viva voce test. There shall be no qualifying marks in the viva voce test but the marks obtained at the viva voce test shall be added to the marks obtained at the written examination. From a fair understanding of the Rules it would clearly appear that it would be mandatory upon a candidate to appear at the viva voce test. In the present matter the Hon'ble Single Judge should not have issued a direction for making recommendation, at best he could have directed that as the petitioner had obtained 63 marks viva voce test may be conducted for him and nothing beyond that. However, that questions has become academic in view of the other findings recorded by us herinabove.

20. From the findings recorded by the Division bench of this Court in the matter of Ganesh Prasad Yadav and others (supra) and the judgment of the Supreme Court in the matter of Abhijit Sen and others (supra) it would clearly appear that the High Court can interfere in the matter if the 'key-answers' are shown to be wrong. In the present matter, from the records it does not appear nor there was any allegation by the writ petitioner that the 'key-answers' were wrong. In fact, the answer-book has been re-evaluated not on the basis of the 'key-answers' but independent of the 'key-answers'. In the light of these facts, the re-evaluation test is vitiated. Even otherwise we find that present is not a fit matter at this stage where the learned Single Judge should have interfered in the matter.

21. In the result, the appeal is allowed. The order passed by the Hon'ble Single Judge is set aside. There shall be no order as to costs.