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IN THE HIGH COURT OF MADHYA PRADESH
(LARGER BENCH)
Hemant Gupta, C.J., C. V. Sirpurkar and Vijay Kumar Shukla, JJ.
Nitin Pathak v. State of M.P. and others
Writ Appeal No. 581 of 2017 (Jabalpur); Decided on 4.9.2017
-- Civil P. C., 1908 -- O.26 R.10A -- model answer key palpably incorrect -- Court could direct examining body to re-examine answer key -- cannot take over function of Commission in finalizing answer key itself -- should not refer matter to Court-appointed expert -- Courts have very limited role -- particularly when no mala fides alleged against experts constituted to finalize answer key -- it would normally be prudent, wholesome and safe for Courts to leave decisions to academicians and experts. 2014(3) MPLJ 84 overruled. (1994)6 SCC 651, (2001)3 SCC 328, 2008(I) MPWN 89 (SC) (2008)1 SCC 683, (2010)6 SCC 759, (2010)8 SCC 372, (2013)10 SCC 519 and (2014)14 SCC 523 followed. (1983)4 SCC 309, 2016 SCC Online Pat 5800 and 2004(3) Karnataka Law Journal 218 referred to. 2012 (4) MPLJ 388 and 2003(3) MPLJ 368 approved. [Paras 26 & 31
(2) Civil Services -- answer key of examination of MP Public Service Commission -- Court should not refer matter to Court -appointed expert -- it would normally be prudent, wholesome and safe for Courts to leave decisions to academicians and experts. 2014(3) MPLJ 84 overruled. (1994)6 SCC 651, (2001)3 SCC 328, 2008(I) MPWN 89(SC), (2008)1 SCC 683, (2010)6 SCC 759, (2010)8 SCC 372, (2013)10 SCC 519 and (2014)14 SCC 523 followed. (1983)4 SCC 309, 2016 SCC Online Pat 5800 and 2004(3) Karnataka Law Journal 218 referred to. 2012(4) MPLJ 388 and 2003(3) MPLJ 368 approved. [Para 31
(3) Constitution of India -- Art.226 -- judicial review -- this Court does not and should not act as Court of Appeal in matter of opinion of experts in academic matters -- power of judicial review is concerned, not with the decision, but with the decision-making process -- Court should not, under guise of preventing abuse of power, be itself guilty of usurping power. 2014(3) MPLJ 84 overruled. (1994)6 SCC 651, (2001)3 SCC 328, 2008(I) MPWN 89(SC), (2008)1 SCC 683, (2010)6 SCC 759, (2010)8 SCC 372, (2013)10 SCC 519 and (2014)14 SCC 523 followed. (1983)4 SCC 309, 2016 SCC Online Pat 5800 and 2004(3) Karnataka Law Journal 218 referred to. 2012(4) MPLJ 388 and 2003(3) MPLJ 368 approved. [Para 32
¼1½ Hkkjr dk lafo/kku] 1988 && vuqŒ && lk{; vf/kfu;e] 1872 && /kkjk 45 && flfoy izfØ;k lafgrk] 1908 && vk-26 fu-10 d && vkn'kZ mrj dqath Li"Vr% v'kq} && U;k;ky; ijh{k.k fudk; dks mrj dqath iqu% ijhf{kr djus dk funsZ'k dj ldrk gS && Loa; mŸkj dqath dks vafre :i nsdj vk;ksx dk dk;Z gLRkxr ugh dj ldrk && ekeyk U;k;ky;&fuqDr fo'ks"kK dks fufnZ"V ugh djuk pkfg, && U;k;ky;ksa dh Hkwfedk cgqr lhfer gksrh gS && fof'k"Vr% tc mŸkj dqth dks vafre :i nsus ds fy, xfBr fo'ks"kKksa ds fo:) vln~Hkko vfHkdfFkr ugha && lkekU;r% U;k;ky;ksa }kjk fofu'p; vdknehf'k;uksa vkSj fo'ks"kKksa ij NksM+k tkuk cqf}ekuhiw.kZ] fgrdj vkSj fujkin gksxkA 2013 ¼3½ ,e ih ,y ts 84 myVk x;kA ¼1994½ 6 ,l lh lh 651] ¼2001½ 3 ,l lh lh 328] 2008¼1½ e-iz- ohDyh uksV~Lk 89 ¼mPpre U;k-½] ¼2008½ 1 ,l lh lh 683] ¼2010½ 6 ,l lh lh 759] ¼2010½ 9 ,l lh lh 372] ¼2013½ 10 ,l lh lh 519 rFkk ¼2014½ 14 ,l lh lh 523 vuqlfjrA ¼1983½ 4 ,l lh lh 309] 2016 ,l lh lh vkuWykbu iVuk 5800 rFkk 2004¼3½ dukZVd ykW tuZy 218 fufnZ"VA 2012¼4½ ,e ih ,y ts 388 rFkk 2003 ¼3½ ,e ih ,y ts 368 vuqeksfnrA ¼iSjk 26 ,oa 31
¼2½ flfoy lsok && eaa-iz- yksd lsok vk;ksx dh mŸkj dqth && U;k;ky; dks ekeyk U;k;ky;&fuqDr fo'ks"kK dks fufnZ"V ugh djuk pkfg, && lkekU;r% U;k;ky;ksa }kjk fofu'p; vdknehf'k;uksa }kjk fo'ks"kKksa ij NksM+k tkuk cqf)ekuhiw.kZ] fgrdj vkSj fujkin gksxkA 2014¼3½ ,e ih ,y ts 84 mYkVk x;kA ¼1994½ 6 ,l lh lh 651] ¼2001½ 3 ,l lh lh 328] 2008¼1½ e-iz- ohDyh uksVl 89 ¼mPpre U;k-½] ¼2008½ 1 ,l lh lh 683] ¼2010½ 6 ,l lh lh 759] ¼2010½ 8 ,l lh lh 372] ¼2013½ 10 ,l lh lh 519 rFkk ¼2014½ 14 ,l lh lh 523 vuqlfjrA ¼1983½ 4 ,l lh lh 309] 2016 ,l lh lh vkuWykbu iVuk 5800 rFkk 2004 ¼3½ dukZVd ykW tuZy 218 fufnZ"VA 2012 ¼4½ ,e ih ,y ts 388 rFkk 2003 ¼3½ ,e ih ,y ts 368 vuqeksfnrA ¼iSjk 31
¼3½ Hkkjr dk lafo/kku && vuq-226 && U;kf;d iqufoZyksdu && ;g U;k;ky; vdknfed fo"k;ksa esa fo'ks"kKksa dh jk; ds fo"k; esa vihy U;k;ky; ds :i es dk;Z ugh djrk vkSj u djuk pkfg, && U;kf;d iqufoZyksdu dh 'kfDRk fofu'p; ls ugh vfirq fofu'p;u dh izfØ;k ls lac) gS && U;k;ky; dks] 'kfDr dk nq:Ik;ksx jksdus ds cgkus] Lo;a 'kfDr gM+ius dk nks"kh ugh gksuk pkfg,A 2014 ¼3½ ,e ih ,y ts 84 mYkVk x;kA ¼1994½ 6 ,l lh lh 651] ¼2001½ 3 ,l lh lh 328] 2008 ¼1½ e-iz- ohDyh uksV+l 89¼mPpre U;k-½ ¼2008½ 1 ,l lh lh 683] ¼2010½ 6 ,l lh lh 759] ¼2010½ 8 ,l lh lh 372] ¼2013½ 10 ,l lh lh 519 rFkk ¼2014½ 14 ,l lh lh 523 vuqlfjrA ¼1983½ 4 ,l lh lh 309] 2016 ,l lh lh vkWuykbu iVuk 5800 rFkk 2004 ¼3½ dukZVd ykW tuZy 218 fufnZ"VA 2012¼4½ ,e ih ,y ts 388 rFkk 2003 ¼3½ ,e ih ,y ts 368 vuqHksfnrA ¼iSjk 32
Gupta, C.J. -- 1. The matter has been placed before this Bench in terms of an order passed by a Division Bench of this Court on 29.6.2017 for opinion
of the Larger Bench on the following questions :
“(1) Whether this Court in exercise of power of judicial review can refer the matter to a Court chosen Expert?
(2) Whether in exercise of power of judicial review, this Court can act as Court of appeal to take a different view than what has been finalized as the model answer key by the Examining Body?
(3) Any other question, which the Larger Bench may think it appropriate at the time of hearing on the basis of assistance of the learned counsel for the parties.”
2. The said questions arises out of the fact that a Division Bench of this Court in a judgment reported as 2014(3) MPLJ 84 (Chanchal Modi v. State of M.P. and another) substituted the Model Answer Key finalized by the Public Service Commission on the basis of opinion of a Former Chief Justice of this Court after the matter was referred for his opinion.
3. A perusal of the judgment of this Court in Chanchal Modi’s case shows that the Public Service Commission sought opinion of a Former Judge of this Court, who did not find any error in the Model Answer Key. But this Court sought an opinion from a former Judge of the Supreme Court for the reason that the opinion of the former Judge is not supported by reasons. However, the Hon’ble Judge refused to give opinion. Thereafter, this Court referred the matter to a former Chief Justice. The former Chief Justice opined that the Model Answer Key finalized by the Public Service Commission on certain questions is not correct. The Court directed to correct answer key of some questions and directed revaluation of the answer sheets. It is in this background, the Court has held as under :
“17. These two judgments are somewhat direct on the point in regard to the power of the Court to interfere in correctness of the answers provided by the expert body. In earlier case, quoted above, which is a decision of three Judge Bench, the Court has specifically answered that if the answers provided by the examiner or expert body are incorrect to the extent that no reasonable body of men well versed in the particular subject would regard as correct, then the Court can interfere. In our opinion, the principle of law laid down by the Hon’ble Supreme Court in Kanpur University (supra), [Kanpur University v. Samir Gupta (AIR 1983 SC 1230)] is correct and has to be followed in the present case.
18. xxx xxx xxx
19. It is further well settled principle of law that an opinion of the expert is not beyond the peril of judicial review and it would certainly not be so when the statutory authority transgresses its jurisdiction. It is held by the Hon’ble Supreme Court in the case of ICFAI v. Council of the Institute of Chartered Accountants of India, reported in (2007)12 SCC 210 and in the case of Vasu Dev Singh v. Union of India, reported in (2006)12 SCC 753.”
4. It is in this background, the Division Bench was not in agreement with the view expressed by the Bench in Chanchal Modi’s case and therefore the matter has been referred to the Larger Bench.
5. The challenge in the writ petition is to the result of the post of Taxation Assistant for which an advertisement was issued in the month of March, 2010 for filling up of 275 posts, as up-dated, by Madhya Pradesh Public Service Commission (for short “the Commission”). As per the Scheme of examination, there were two question papers of objective type ; one in the subject of General Studies of 150 marks and other of Commerce of 300 marks. The examination was conducted on 25.7.2010. The appellant was successful in the examination and was called for vivavoce test on 18.1.2011.
6. Since the appellant was not appointed in terms of the final result declared, he sought information in respect of his attempt in the examination, which was accepted and total marks in both the written papers were supplied.
7. The
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