Gokulanand Tiwari v. State of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI AND HON'BLE SRI JUSTICE RAKESH THAPLIYAL SPECIAL APPEAL NO. 100 OF 2023 13TH JUNE, 2023 BETWEEN: Anit Dutt Joshi & others

…..Appellants. And State of Uttarakhand & others

….Respondents. With SPECIAL APPEAL NO. 210 OF 2023 BETWEEN: Mahesh Kumar & others

…..Appellants. And State of Uttarakhand & others

….Respondents. With SPECIAL APPEAL NO. 211 OF 2023 BETWEEN: Mohit Bhandari & others

…..Appellants. And State of Uttarakhand & others

….Respondents. With SPECIAL APPEAL NO. 212 OF 2023 BETWEEN: Gokulanand Tiwari & others

…..Appellants. And State of Uttarakhand & others

….Respondents.

Counsel for the Appellants : Mr. Vinay Kumar and Ms. Sudha

Tamta, learned counsels. Counsel for the State : Mr. Pradeep Joshi, learned

Additional Chief Standing Counsel

and Mr. K.N. Joshi, learned

Deputy Advocate General. Counsel for the UKSSSC : Mr. C.K. Sharma and Mr.

Shailendra Nauriyal, learned

counsel. Counsel for the Intervener : Mr. Abhishek Rana, proxy

counsel for Mr. Abhijay Negi,

learned counsel. The Court made the following: COMMON JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi) Delay Condonation Applications (IA No.01 and 02 of 2023)

Learned counsels for the respondents fairly do not oppose the delay in preferring the present special appeals.

2.

For the reasons stated in the affidavit(s), filed in support of the delay condonation applications, the delay condonation applications are allowed, and the delay of 198 days in preferring the SPA No.100 of 2023 and the delay of 224 days in preferring the SPA Nos.210, 211 and 212 of 2023, is, hereby, condoned.

Special Appeal Nos.100, 210, 211 and 212 of 2023

3.

We have heard learned counsels and proceeded to dispose of the present special appeals.

4.

The present special appeals are directed against the common judgment dated 24.09.2022, rendered by the

learned Single Judge in a batch of writ petition, including Writ Petition (S/S) No.308 of 2022, "Sunita vs. State of Uttarakhand & others".

5.

The appellants were the writ petitioners in Writ Petition (S/S) Nos.90 of 2022, 419 of 2022, 591 of 2022, and 421 of 2022 respectively. The appellants had preferred the said writ petitions to raise the issue with regard to the correctness of the answer keys to certain questions, in respect of the examination held by the respondent-Uttarakhand Subordinate Service Selection Commission, for the post of Assistant Teacher (L.T.) Grade in Government Schools. The questions, in respect whereof the challenge was raised, were Question Nos.9, 29, 65 and 85 of Series 'A' booklet. At the hearing, the appeals have not been pressed in respect of Question No.29.

6.

The learned Single Judge dismissed the writ petitions by the common impugned judgment on the ground that it is not for the Courts to take on the role of experts in academic matters and to re-evaluate the answer key prepared by the Selection Body under the guidance of the Subject Experts. The learned Single Judge held that the issue as to which option-to a given question, gives correct answer can only be decided by Experts, and the answer key had been revised by the Selecting Body based on the recommendation

of the Subject Experts, who considered the objections received against the first answer key.

7.

There can be no quarrel with the preposition noticed by the learned Single Judge in the impugned judgment. We cannot go into the correctness of the answers finalized by the Expert Body. However, the process of decision making by the Expert Body, and the material which have been considered or left out of consideration, would fall for scrutiny by the Court, as this Court is concerned primarily with the issue: whether the Body-even if it is composed of Subject Experts, has given due application of mind to the issue, on which its decision/ opinion was called for; whether the Expert Body has considered the relevant and germane aspects, and not taken into consideration irrelevant or extraneous aspects, and; whether the decision appears to be well reasoned. In that light, we have proceeded to take notice of the three questions, in respect whereof, the appellants are pressing the present special appeals; the texts and material relied upon by the appellants; the reasoning adopted by the Experts, and; the texts and other literature relied upon by the Expert Body.

8.

Vide our order dated 17.05.2023, we had directed the respondent-authorities to produce before us the Expert Committee's report along with the background and the qualifications of the Experts, who have made the said report.

The relevant extract of the books on which reliance had been placed by the Expert Committee was also required to be placed before us.

¶9Learned counsels for the respondent-Commission have produced before us a sealed cover containing the aforesaid information question-wise.

¶10Question No.9 in Series 'A' booklet was the following:- "9. Propounder of reinforcement theory is:

(A) Pavlov

(B) Skinner

(C) Thorndike

(D) C.L. Hull"

¶11The initial answer key gave option 'D' as the correct answer, namely C.L. Hull. However, in the revised answer key, as determined by the experts, option 'B' was treated as the correct answer.

¶12In support of their plea that option 'D' C.L. Hull was the correct answer, the appellants had placed, with the writ petition, the textbook, namely, 'Educational Psychology by P.D. Pathak, published by Vinod Pushtak Mandir, Agra, 1996 Edition'. The text of the said book states that "ঋबलन िस?ांत का ঋितपादन सी.एल. हल (C.L. Hull) नामक अमेरीकी मनोवै৯ािनक ने 1915 म७ अपनी पु्क "Principles of Behaviour" म७ िकया था।".

¶13The appellants-writ petitioners also place reliance on another textbook, namely "िश्ा मनोिव৯ान, by P.D. Pathak", wherein once again, in respect of propounder of reinforcement theory, the same information was contained.

¶14The appellants-writ petitioners also placed on record another textbook, namely "उৡतर िश्ा मनोिव৯ान Advanced Educational Psychology Theory and Practice, by Prof. S.P. Gupta/ Dr. Alka Gupta, published by Sharda Pushtak Bhawan, Prayagraj", which too attributes the reinforcement theory to C.L. Hull at Page No.453.

¶15Another textbook relied upon by the appellants-writ petitioners was "सं৯ा्क मनोिव৯ान: बौ्?क ঋिॿयाय७, Cognitive Psychology: Intellectual Processes, published by Samaj Vigyan Vidhyashala, Uttarakhand Open University", which too narrates that "ঋबलन िस?ांत का ঋितपादन हल (Hull 1942) ?ारा िकया गया है।".

¶16Insofar as the Question No.9, aforesaid, is concerned, the same shows that the Expert Committee of three Experts states that the objection raised by the objectors was correct. The key answer given by the Commission, i.e. option 'D', was not correct, and that the correct option was option 'B'. The reasoning given is that there is variation in the Hindi and the English version of the question. That being the

position, in terms of the instructions No.9, it is the English question, which shall prevail.

¶17At this stage, we may take extract of Question No.9 from the Question Paper-both the English and Hindi versions of the same question. They read as follows:-

¶9Propounder of reinforcement 9. ঋबलन िस?ांत के ঋितपादक ह॰ : theory is:

(A) पावलव

(A) Pavlov

(B) ््नर (B) Skinner

(C) थोन१डाइक (C) Thorndike

(D) C.L. Hull (D) सी.एल. हल

¶18Firstly, prima facie, there appears to be no difference in the question, as posed in English language and in Hindi language. The Expert Committee, unfortunately, does not record any reason for its conclusion that there is a difference in the Hindi and the English version of the said question. It is not explained by the Experts as to how they considered that there is a difference in the question-as posed in the English, and the Hindi languages.

¶19The literature relied upon by the Expert Committee has also been placed along with its decision. The same shows that the Experts have relied upon a book called "शैि्क तकनीकी के मूल आधार, by Dr. S.P. Kulshresth, published in 2007". The extract from the said book, on which reliance is placed by the Experts, reads as follows:- "Reinforcement Theory-B.F. Skinner: 1938 (Process Theory)

What is the Theory ? B.F. Skinner's work is built on the assumption that behavior is influenced by its consequences. Reinforcement theory is the process of shaping behavior by controlling consequences of the behavior. Reinforcement theory proposes that you can change someone's behavior by using reinforcement, punishment, and extinction. Rewards are used to reinforce the behavior you want and punishments are used to prevent the behaviour you do not want. Extinction is a means to stop someone from performing a learned behavior. The technical term for these processes is called 'operant conditioning'".

¶20The aforesaid would show that the text relied upon by the Experts nowhere claims that B.F. Skinner-who appears to have propounded the 'process theory', was the propounder of the reinforcement theory, i.e. ঋबलन िस?ांत .

¶21The theory propounded by B.F. Skinner was the 'process theory' in the year 1938. However, as per the text relied upon by the appellants, C.L. Hull had already propounded the reinforcement theory 23 years earlier, i.e. in the year 1915.

¶22Pertinently, while arriving at their decision that option 'B' is the correct option, the Experts do not record any reasons, to explain as to on what basis, they claim that option 'D' was wrong.

¶23The Expert Committee has also relied upon another शैि्क तकनीकी के मूल आधार, by Dr. S.P. text, namely, " Kulshresth". This text nowhere claims that B.F. Skinner was

the propounder of the reinforcement theory. In fact, against the name of B.F. Skinner, the important contributions have been enlisted as, "सिॿय अनुबंध अनुिॿया (Operant Conditioning Theory) अिधगम िस?ांत का ঋितपादन in the year 1943, पुनब१लन का िस?ांत, रेखीय अिभॿम सामঁी तथा िश्ण मशीनो को बनाना in the year 1945", and in 1950, he is credited with 'ঋिस? लेख अिधगम का िव৯ान तथा िश्ण की कला का ঋकाशन'.

¶24As we have already noticed, it is not for us to step into the shoes of the Experts, and conclude for ourselves as to which is the correct answer. However, one thing can certainly be said upon examination of the aforesaid aspect, that the Expert Committee has not undertaken the exercise with the seriousness and rigors with which it was expected to do so. There is no reason for rejecting the texts relied upon by the appellants, and rely upon the texts, on which reliance was placed by the Expert Committee.

¶25It pains us to see that the respondent-Commission is approaching its very important responsibility with utter indifference and incompetence, to say the least. The career and lives of thousands of young people are at stake, who apply for the posts which are advertised for selection through public examination. The manner, in which the Expert Committee of three Experts have gone about their motion, and concluded that option 'B' is the correct answer, is

completely flawed, since they do not explain as to why option 'D'- C.L. Hull, was not considered as the correct answer, and why they have taken into consideration the text which does not appear to squarely answer the question, namely, who is the propounder of reinforcement theory.

¶26The revised option 'B' in respect of Question No.9 of Series 'A' booklet, on the basis of the exercise undertaken by the Expert Committee, cannot be sustained, and, is therefore, quashed.

¶27We may now move to the next question, in respect whereof the appellants have raised the challenge, which is the Question No.65 of Series 'A' booklet, which reads as follows:- "65. डॉ. नाग७ঈ ने ঋगितवाद का आरR काल माना है :

(A) सन् 1936 ई० को

(B) सन् 1937 ई० को

(C) सन् 1938 ई० को

(D) सन् 1939 ई० को"

¶28In respect of the said question, the model answer in the answer key prepared by the Commission was 'सन् 1936 ई०', i.e option 'A'. The objection raised by the appellants to the said question was that the correct answer to the said question was 'सन् 1938 ई०', i.e. option 'C'. The Expert Committee of the Commission consisting of three Experts has, however, rejected the said objection, and ruled that the correct option was option 'A', i.e. 'सन् 1936 ई०'. Unfortunately,

in the note-sheet, wherein the reasoning is recorded by the Expert Committee, there is no reason to be found.

¶29We may, at this stage, notice several texts relied upon by the appellants in support of their plea that the correct answer was 'सन् 1938 ई०'.

¶30First text relied upon by the appellants is "िहंदी सािह? का इितहास, by Dr. Nagendra and Dr. Hardayal". Thus, it would be seen that Dr. Nagendra, himself, was the author of the text relied upon by the appellants. At Page No.41 of the said text, Dr. Nagendra states that Hindi Literature could be divided into different periods, and named as follows:- "आिदकाल : सातवी ं शती के म? से चौदहवी ं शती के म? तक। भ??काल : चौदहवी ं शती के म? से सআहवी ं शती के म? तक। रीितकाल : सআहवी ं शती के म? से उ्ीसवी ं शती के म? तक। आधुिनक काल : उ्ीसवी ं शती के म? से अब तक:

¶1पुनजा१गरणकाल (भारत७दुकाल) 1857-1900 ई0

¶2जागरणसुधारकाल (ि?वेिदकाल) 1900 -1918 ई०

¶3छायावादकाल 1918 -1938 ई०

¶4छायावादो?रकाल

(क) ঋगित-ঋयोगकाल 1938 -1953 ई०

(ख) नवलेखनकल 1953 ई० से अब तक"

¶31From the aforesaid text, it appears that ঋगित-ঋयोगकाल, began in 1938 ई०.

¶32The appellants have also placed on record another text, namely िहंदी सािह? का इितहास, by Dr. L.N. Pande". The said textbook is the prescribed textbook by the Hemwati Nandan

Bahuguna Garhwal University. The 2017 Edition of this textbook states that, छायावादोȅर काल, i.e. ঋगित-ঋयोगकाल was between 1938-1953 ई०. The relevant extract from the said text reads as follows:- "छायावादोȅर काल

¶1ঋगित-ঋयोगकाल (सन् 1938.1953)

¶2नवलेखन-कल (सन् 1953 अब तक)\ डॉ. नाग७ঈ का काल-िवभाजन आचाय१ शुম और डॉ. हजारीঋसाद िȪवेदी के अनुसार ही रहा है।"

¶33Another text produced by the appellants was "िहंदी काʩ, by Dr. Vivek Shankar, published by राज̾ थान िहंदी ঁ Ⱥ अकादमी, 2020 Edition". In the said text, following is found:- "डॉ. नाग७ঈ Ȫारा िकया गया काल िवभाजन एवं नामकरण आिदकाल : सातवीं शती के मȯ से चौदहवीं शती के मȯ तक। भİƅकाल : चौदहवीं शती के मȯ से सআहवीं शती के मȯ तक। रीितकाल : सআहवीं शती के मȯ से उɄीसवीं शती के मȯ तक। आधुिनक काल : उɄीसवीं शती के मȯ से अब तक:

¶1पुनजा१गरणकाल (भारत७दुकाल) 1857-1900 ई0

¶2जागरणसुधारकाल (िȪवेिदकाल) 1900 -1918 ई०

¶3छायावादकाल 1918 -1938 ई०

¶4छायावादोȅरकाल

(क) ঋगित-ঋयोगकाल 1938 -1953 ई०

(ख) नवलेखनकल 1953 ई० से अब तक"

¶34As opposed to the text relied upon by the appellants, the Expert Committee relies on the extract from the text, namely "िहंदी सािहȑ का इितहास, by Dr. Nagendra and Dr. Hardayal". At Page No.606 of the said text, which textbook is also relied upon by the appellants, as aforesaid, it is stated as follows:-

"ঋगितवाद का? की सं৯ा उस का? को दी गयी जो छायावाद के समा्तकाल म७ 1936 के आसपास से सामािजक चेतना को लेकर िनिम१त होना आरR ॽआ।"

¶35As in the case of Question No.9, in this case also, we find that there is absolutely no discussion by the Experts with regard to the text relied upon by the objectors. The text relied upon by the Experts does not appear give a definite answer inasmuch, as, it states that "ঋगितवाद का? की सं৯ा उस का? को दी गयी जो छायावाद के समा्तकाल म७ 1936 के आसपास से सामािजक चेतना को लेकर िनिम१त होना आरR ॽआ।" (emphasis supplied). Thus, the text relied upon by the Experts only talks about 1936 as an approximate time, and not the exact time.

¶36In our view, the exercise done by the Experts even in relation to Question No.65, is equally casual and suffers from non-application of mind. There is no discussion of as to why the texts relied upon by the appellants have not been preferred, over the texts on which reliance is placed by the Expert Committee. For the same reasons, as aforesaid, the said view of the Experts is liable to be quashed, which we, hereby, do.

¶37The third question, in respect whereof, the appellants raised the challenge, was Question No.85 of Series 'A' booklet. The said question reads as follows:- "85. देवनागरी िलिप म७ मूल िलिप िच? ह॰ :

(A) 44

(B) 45

(C) 46

(D) उपयुঢ म७ से कोई नही"ं

¶38The model answer key in respect of the said question fixed by the respondent-Commission was option 'B', i.e. 45. The appellants claimed that the correct answer was option 'C', i.e. 46. The Expert Committee came to the conclusion that the correct answer is option 'A', i.e. 44.

¶39In support of their submission that the correct answer was option 'C', i.e. 46, the appellants have relied upon the work called 'देवनागरी िलिप तथा िहंदी वत१नी का मानकीकरण, published by the Central Hindi Directorate, Department of Higher Education, Ministry of Human Resource Development, Government of India'. At Page No.4 of the said text, under the heading 'मानक िहंदी वण१माला तथा अंक', '?र' were set out in Paragraph No.2.1.1, which aggregated to 11. Paragraph No.2.1.2 sets out 'मूल ?ंजन', which include 'ङ' and 'ढ़'. At Page No.5 of the said text, it is stated as follows:- "'ङ' and 'ढ़' ?ंजन ॺप िहंदी म७ ?ीकृ त ?िनयाँ ह॰। इस तरह िहंदी वण१माला म७ मूलतः 11 ?र तथा 35 (33+ 2) ?ंजन ह॰।"

¶40Thus, according to the appellants, the total of 11 ?र तथा 35 (33+ 2) ?ंजन comes to 46, which, according to them, was the correct answer.

¶41The Expert Committee of the Commission, on the other hand, has also relied upon the same text, namely 'देवनागरी िलिप तथा िहंदी वत१नी का मानकीकरण, published by the

Central Hindi Directorate, Department of Higher Education, Ministry of Human Resource Development, Government of India'. The Expert Committee, however, does not take into consideration the two alphabets, namely 'ङ' and 'ढ़', and therefore, comes to the conclusion that the aggregate of 11 ?र तथा 33 ?ंजन comes to 44.

¶42It is pertinent to note that, in any event, 45 is not the correct answer, even according to the Expert Committee. It is, therefore, clear that the Commission framed a question which does not appear to have a clear-cut answer, and there is ambiguity in the same.

¶43We may notice that the Experts have relied upon a couple of other texts in support of their conclusion that the correct answer is 44, but the fact remains that in the text, relied upon by the appellants, which is also relied upon by the Experts, the answer given is 46.

¶44We fail to understand as to why the Commission should include questions which have ambiguity, or whose answers are not clear. Framing of such questions is bound to result in confusion, and would be unfair to that section of the candidates, who may choose the option which the Commission, or the Experts, may not agree with, even though, the chosen option is also clearly one of the correct options. In such situations, the only correct course that the

appears to us, for the Commission to adopt, would be to award marks to candidates who opt for either of the two answers, namely option 'A' or 'C'.

¶45In the light of the aforesaid, we dispose of these special appeals with a direction to the respondent-Commission to re-examine the correctness of the answer key in relation to Question Nos.9 and 65, and also to consider whether full marks could be awarded to candidates who had opted for option 'A' or 'C' in relation to Question No.85 of Series 'A' booklet.

¶46We hope that on this occasion, the Commission will not let the candidates down by undertaking a mindless and casual exercise, and that the Experts would take a considered and reasoned decision to support their final decision in the matter. The Commission shall, therefore, constitute Expert Committees to examine the three questions, aforesaid, afresh, in the light of the model answer key, with justification, framed by the Commission; the objections raised by the candidates with supporting evidence, and; in the light of the texts relied upon by the Experts themselves. The Commission shall constitute Expert Committees of Experts other than those who have already participated in the earlier process. The exercise be completed by the Commission within the next four weeks, and the decision shall be published by the Commission on its website, and also be communicated to

the appellants. Depending on the answers determined by the Experts, as the correct answers, the marks awarded to the candidates shall be re-calculated, and a fresh merit list be prepared on the basis of which the selection process shall continue. The aforesaid exercise is limited in respect of candidates who are on the waiting list, and shall not affect those who have already been appointed.

¶47The interim orders operating in the present appeals shall continue to apply till the process, as directed, is completed.

¶48The special appeals stand disposed of in the aforesaid terms.

¶49Pending application, if any, also stands disposed of.

(VIPIN SANGHI, C.J.)

(RAKESH THAPLIYAL, J.) Dated: 13th June, 2023 NISHANT