Ajay Kr. Tripathi, J.

1. A series of writ applications came to be filed before the High Court by all such candidates whose names did not figure in the result of the PT Examination declared by the Bihar Public Service Commission (hereinafter referred to as the Commission or BPSC) for what is known as 52nd to 55th batch. Many intervention applications have also been filed with prayers therein that they too be impleaded as petitioners to the writ applications since they have common cause and relief. All have a common grievance against the declaration of the said result in the background that the examination conducted by the Commission has not been fair in the sense that many a questions which were set for the PT Examination had either wrong answers or were wrong questions, at times verging on absurdity or even a right question had a wrong answer provided in the master answer sheet. There is unanimity amongst the petitioners that any declaration of result based on such question bank set by so-called panel of experts cannot form the basis for testing the knowledge of the candidates in a fair and square manner, even if it is for the preliminary examination. For after all qualifying in the preliminary examination is going to form the basis for enabling a candidate to sit for the mains examination. Their entire career is therefore jeopardised because of the so-called act of the BPSC which has been labeled as callous in approach in conducting such an important examination.

2. From the pleadings it is evident that a lot of hue and cry was raised, which compelled the respondent BPSC to examine the questions as well as the model answers and even BPSC agreed that 8 of the questions out of 150 questions were required to be deleted for re-evaluation purposes and they were willing to declare the result on the basis of 142 questions only. This, however, does not satisfy the petitioners and they insist on either cancellation of the preliminary examination or reducing the entry level cutoff marks by as many questions/marks which were found to be erroneous.

3. Several instances have been cited in the affidavits filed by the various petitioners with model answers provided by the BPSC to strengthen their cases for serious re-look at the declared preliminary examination results. The Court examined those questions closely and there was near unanimity that the questions which had been set up by the so-called experts and model answers given to those set of questions by the question setters did require a re-look. It was in this background that vide order dated 9.9.2011 a direction was issued upon the Commission to take help of another set of experts, examine all the questions and model answers afresh, taking into consideration the objections raised by the candidates either through the present writ applications or even objections filed directly with the Commission.

4. Counsel for the Commission did agree to accept the direction of this Court and revert on the issue within the given time frame prayed on their behalf. The matter was finally placed by way of an affidavit filed on behalf of the Commission where they did agree that some of the earlier questions were wrong questions or the answer given to the right question was a wrong answer and they are willing to abide by any direction which may come from the Court on the given set of facts. They, however, do take a stand that cancellation of the preliminary examination and re-conducting the same may not be a practical and prudent exercise because holding such an examination of such magnitude is not an easy exercise. Further it is going to delay the recruitment process, which has already been delayed for three batches as the present examination is being conducted for the 52nd to 55th batch.

5. After the affidavit on behalf of the Commission was filed, divergent kind of statements emerged on behalf of the petitioners. Though by and large the majority are not in favour of cancellation of the examination as a whole now but they insist that since a number of questions or answers were found to be erroneous, the Commission should be directed to reduce the present cut-off marks by as many marks and allow all those candidates who come within the newly fixed cut-off marks to appear in the mains examination. For after all, it is only a question of giving an opportunity to a larger section of the students to establish their credibility as well as their selectivity on the posts which have been advertised, on the basis of the mains examination, followed by interview which is still to come. Since many a candidates are going to become over-age, this may be their last opportunity to have a go at a Government job and their plight should also be taken into consideration by taking a broader view of the issue.

6. In support of the reduction of cutoff marks by as many questions which have been found to be erroneous, reliance has been placed on the decision rendered in the case of Akshey Lal Pandit vs. State of Bihar, : 2011(3) PLJR 258. The said case related to selection of Civil Judges of Junior Division, which also became a subject matter of controversy since large number of questions were found to be erroneous. Keeping in mind the acceptance of the so-called error in the questions set by the Commission, a direction was issued by the Division Bench, upon the Commission to reduce the qualifying cut-off marks by 25 marks and allow all the candidates thereafter to sit in the mains examination.

7. Yet another decision which has been relied is the case of Pankaj Sharma vs. State of Jammu and Kashmir and Others., : (2008)4 SCC 273 . This is a matter which arose from a civil services examination conducted by J & K Public Service Commission.

8. The present controversy which has arisen for consideration by this Court is not the first of its kind. BPSC has been dragged to Court on earlier occasions also because they have failed to conduct a fool-proof examination without any surrounding controversy with regard to the questions set or the manner in which results have been declared. On earlier occasions there were even insinuations and allegations of malpractices etc. which, how ever, is not the issue in the present set of writ applications. The controversy is limited to the correctness of the questions which were set and the so-called model answers provided by the experts based on which the results of the preliminary examination came to be declared.

9. BPSC is a constitutional body and it has an obligation to ensure holding of a free and fair examination, maintaining the utmost standards and probity without giving any leeway for any kind of doubt, dispute or controversy being raised with regard to results of any examination con ducted by them. The Court however is not unmindful of the fact that the Commission has no mechanism to set questions for various examinations, which they hold and they have to rely on outside agencies or a panel of so-called experts, whose services are taken from time to time. Unfortunately in the present case, BPSC is facing a flak not because of any failure on their part but because of certain omission or failure on the part of the experts, who provided the question bank as well as the so-called model answers. But, it is the credibility of the BPSC which is at stake as they are the body saddled with responsibility to hold such examination to fill up public/civil posts under the constitutional provision. The Court has been told that to prevent any leakage of question papers they cannot scrutinize the correctness of the questions or answers until examination is held.

10. It may be so, therefore the Court would want BPSC to review the list of so-called experts and weed out the elements who have caused such embarrassment and litigation, at least for the future examinations. It will be in their interest to do so.

11. Coming to the question whether the contention of the petitioners that the present cut-off marks/qualifying marks should be reduced by the number of questions which have been found to be erroneous and be made the basis for declaration of the result afresh or whether the evaluation should be re-done on the basis of total correct answers which the Commission has now zeroed down as per the second experts panel opinion, is the crux of the dispute now.

12. This Court does not find any rationale in the demand for reducing the minimum qualifying marks by as many marks on the basis of questions which have been found to be wrong in the present case, by the second Expert Committee because the final evaluation has to be made on the basis of the final tally of correct set of questions which now remain. Evaluation has to be made across the board on the basis of the correct answers, to correct questions, which have to be considered now. Reducing the cutoff marks across the board will bring within its ambit a large number of candidates by giving them a kind of unfair advantage without any scientific basis defeating the very objective of holding a preliminary examination.

13. In the opinion of this Court, the proper mechanism to be adopted would be to carry out a fresh evaluation of all the answer sheets of the candidates who have participated in the preliminary examinations by weeding out the wrong questions which have now been accepted to be wrong by the 2nd Expert Committee and which the Commission has gracefully accepted by way of the affidavit filed by them on 11.11.2011. The details of the questions which have been found to be erroneous or wrong or the questions whose answers were found to be wrong have been stated in detail in the second supplementary counter affidavit. To be definitive as to the exact stand of the BPSC, their assertion made in the supplementary counter affidavit is being reproduced here for ready reference:-

"4. That accordingly in compliance of this Honble Courts order dated 9.9.2011, a Committee of Experts comprising of 13 very senior retired and working Professors of Patna University and Magadh University was constituted. The Committee of experts reviewed all the 150 questions of General Studies paper and determined their answers. While doing so, they also considered each and every suggestion given by the writ petitioners as also suggestions of the candidates who had filed representations in the Commission. The new Expert Committee differed from old one in respect of answers of the following questions of booklet series A:-

1. Question No. 6:-Minerals are

(A) Liquids

(B) Inorganic Solids

(C) Gases

(D) All of the above

Some candidates have referred to the NCERT Text Book, which suggests option (D) whereas as per Reference Books the answer should be Option (B). In view of this ambiguity the experts have recommended to delete this question. The previous Expert Committee had suggested option B as correct answer.

2. Question No. 30:-Till 2010, which State Governments have provided 50 percent reservation for women in local bodies

(A) Bihar, Uttar Pradesh, Rajashthan

(B) Bihar, Madhya Pradesh, Himachal Pradesh

(C) Bihar, Madhya Pradesh, Kerala

(D) Bihar, Himachal Pradesh, Uttar Pradesh

Some candidates have suggested that till 2010, 50% reservation to women in civil bodies was available in Kerala also whereas Option B decided by the Commission as correct answer does not include Kerala. The new Expert Committee suggested that till 2010, 50% reservation to women in civil bodies was available in Bihar, Madhya Pradesh, Himachal Pradesh and Kerala. As none of the alternative options include all the four States, so all options are wrong. Hence, they have recommended deleting this question also.

3. Question No. 79:-Major Source of oceanic salinity is

(A) rivers

(B) land

(C) wind

(D) ash from volcanoes

The new Expert Committee has suggested option (B) instead of Option (A) as suggested by the erstwhile Expert Committee.

4. Question No.103:-Commercial sources of energy purely consist of**

(A) Power, Coal, Oil, Gas, Hydro-electricity and uranium

(B) Coal, Oil, Firewood, Vegetable Waste and Agricultural Waste

(C) Power, Coal, Animal dung and Firewood

(D) Coal, Gas, Oil and Firewood

This question had been deleted on the suggestion of the previous Expert Committee. However, the new Expert Committee has suggested option (A) as the correct answer.

5. Question No. 113;-Consider the following about the Rolling Plan.

I. A plan for the current year which includes the annual budget.

II. A Plan for a fixed number of years, say 3, 4 or 5

III. It is revised every year as per requirements of the economy

IV. A perspective plan for 10, 15 or 20 years Which of the above are correct

(A) I and II

(B) I and III

(C) II and III

(D) I, II, III and IV

This question had also been deleted on the suggestion of the previous Expert Committee. However, the new Expert Committee has suggested option (D) as the correct answer.

6. Question No.115:-Patna Inter national Airport is directly connected with

(A) Kathmandu (Nepal), New Delhi, Kolkata, Mumbai, Lucknow, Varanasi and Ranchi

(B) Bengaluru, Hyderabad and Dhaka

(C) Islamabad, Dhaka and Bengaluru

(D) Washington, Dhaka and Chennai The new Expert Committee has suggested deletion of this question as all the four options are wrong.

5. That thus the new Expert Committee agreed with the suggestions of the previous Expert Committee to delete question Nos. 91, 99, 104, 109, 116 and 122 (six questions) while they have suggested that question nos. 103 and 113 should not be deleted. They have suggested correct answers for the above two questions as stated herein above. The new experts have also differed from the previous experts in respect of the answer of question no. 79 as stated herein above. However, the new Expert Committee has suggested deletion of three additional questions, i.e. question Nos. 6, 30 and 115 finding the objections of the candidates to be justified.

6. That in so far as the present writ petition is concerned, the writ petitioners had contended that Question Nos. 91, 103, 104, 109 and 113 of Set A equivalent to Question Nos. 121, 133, 134, 139, 143 of Set B respectively has wrongly been deleted which have a definite answer. The Expert Committee so constituted in so far as a question nos. 103 and 113 agrees with the view of the writ petitioners and suggested that Question Nos. 103 and 113 should not be deleted but suggested deletion of Question Nos. 91, 104 and 109 of Set A as was suggested by previous Expert Committee.

7. That the writ petitioners have further contended that Question Nos. 6, 14, 30, 45 and 50 of Set A. equivalent to Question Nos. 36, 44, 60, 75 and 80 of Set B respectively has different answers to that what has been fixed by the B.P.S.C. The Committee of Experts has suggested to delete Question No. 6, agreed with the option D as the correct answer of Question No. 14 as was fixed by the Commission upon suggestion of the earlier Committee of Experts, has suggested to delete Question No.30, has agreed with Option A as the correct answer of Question No, 45 as was fixed by the Commission upon suggestion of the earlier Committee of Experts and has agreed with Option D as the correct answer of Question No. 50 as was fixed by the Commission upon suggestion of the earlier Committee of Experts.

8. That besides the new Committee of Experts has also suggested deleting Question No.115 as was suggested by the writ petitioners to be deleted.

9. That it would thus be manifest that the new Committee of Experts have suggested to delete Question Nos. 6, 30,91,99, 104, 109, 115, 116 and 122 (9 questions) of Set A and differed with the views of previous Experts in respect of answer of Question No. 79 of Set A as has been stated above and have suggested Option B to be the correct answer instead of Option TV as was suggested by the earlier Expert Committee."

14. When the Court questioned the learned Senior Counsel representing the Commission as to what would be the fallout if the evaluation of the answer sheets is made now by deleting nine questions and accepting two questions with correct and definite answers, on the basis of some exercise carried out by the Commission, they come with a rough figure that 915 candidates who have already been declared successful on the basis of earlier evaluation will stand ousted and many more new candidates would be declared to be successful.

15. But once a candidate has been declared successful, his ouster from the list of successful candidates will generate another kind of litigation which the BPSC wants to avoid in the interest of cutting down further delay in conducting the mains examination. They are therefore willing to retain them and also allow the would be successful candidates to come in. It is also their stand that there will be a reduction of marks on the present cut-off marks which has been fixed on the basis of earlier declaration of result and that will bring in more candidates in the ambit of qualified persons under various categories. In fact, despite so-called ratio of 10 percent which has been fixed by the BPSC for allowing the successful candidates to appear in the mains examination the total candidates who would be allowed to appear in the mains examination is going to get enhanced by some more percentage points bringing within its fold a few thousand more candidates. They are, however, willing to accommodate all those candidates now, if it allows the controversy to rest and the Commission to go ahead with conduct of the mains examination after carrying out the re-evaluation.

16. Though in the judgment relied by the petitioners which is the case of Akshey Lal Pandit (supra) the Court decided to reduce the minimum eligibility by 25 marks to sit for the main examination but that was based in the given facts and circumstances and taking into consideration that the total number of applicants for the vacancy of judicial officers was about 21000 only but in the present case the number of applicants runs into lakhs and such an approach would frustrate the very object of holding a preliminary examination to weed out the non-serious students from the contention.

17. A controversy of similar kind had once arisen way back in the case of Ganesh Prasad Yadav vs. State of Bihar, : 1995(2) PLJR 170. The Division Bench after going into the details of the said dispute had opined 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 particular. 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."

(emphasis mine)

18. Similar is the situation in the present case as well. The advantage or disadvantage from a wrong question or a wrong answer would be there against one and all because it cannot be said that successful candidates managed to hit the bulls eye with a correct answer even though the question was wrong or vice versa.

19. The Court therefore comes to a considered opinion that a fairer approach to the whole problem would be by permitting BPSC to carry out a fresh evaluation of all the answer sheets on the basis of their stand emerging from the opinion of the second expert group. If such an exercise is permitted then it will amount to a fair evaluation of all the candidates without giving any unfair advantage to either successful candidates or the unsuccessful ones because they will all be tested on a common platform. In fact this is one of the reasons why this Court is not willing to accept the submission of some of the counsel that as many marks should be added to all the candidates treating them as correct answers to the incorrect questions. Such an approach will make no difference to the final standing of the successful candidates whose results have been declared.

20. In the totality therefore, the Court comes to a considered conclusion that the BPSC should now re-declare the result of the preliminary examination after a fresh evaluation on the basis of the recommendations of the second expert committee and that should form the basis for conduct of the mains examination which is yet to follow.

21. It is made clear that none of the successful candidates earlier declared successful on the basis of declaration of the result would be ousted from the list of such candidates who will be entitled to sit for the mains examination. If the exercise brings in more candidates within the zone of successful candidates by being permitted to sit for the mains examination, so be it, but the exercise shall not be done to the detriment of any of the successful candidates whose results have already been declared earlier.

22. These writ applications are al lowed in terms of the direction issued above.

23. Some concerted effort was made on behalf of some of the counsel representing the petitioners to persist with their submission that there are still some mistakes with the answers or the questions despite the scrutiny by the second Expert Committee. With due respect to such counsel, those arguments are for the sake of arguments because the answers which they try to demonstrate before the Court are based on some publication made by the NCERT which by itself cannot be treated to be the final referral material for all the questions on the subject, which became the basis for testing the awareness of the students participating in the preliminary examination.

24. Let it be clarified that the order passed in these bunch of writ applications shall apply to all the candidates who have participated in the preliminary examination irrespective of the fact whether they have approached the Court or filed interlocutory applications to be impleaded as petitioners and have not been allowed, looking at the nature of the relief so granted. Before parting the Court would also like to record that the view expressed by this Court finds support from the judgment of a Division Bench delivered in the case of Bihar Public Service Commission vs. Mukesh Kumar Singh, reported in : 2009(3) PLJR 878.