ANUJ YADAV  Vs UNION OF INDIA & ANR.

LPA 21/2021 Page 1 of 8
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 14.01.2021

+ LPA 21/2021
ANUJ YADAV … Appellant
Through: Mr. Tanmaya Mehta and
Mr. Gaurav Goel, Advocates.
versus

UNION OF INDIA & ANR. … Respondent s
Through: Ms. Monika Arora, Advocate for
R-1/UOI.
Mr. Naresh Kaushik, Advocate for
R-2/UPSC.

CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE SANJEEV NARULA

JUDGMENT

SANJEEV NARULA, J. (Oral)
[VIA VIDEO CONFERENCING]
CM APPL. 1385/2021 (for exemption)
1. Exemption allowed, subject to just exceptions.
2. The application is disposed of.

LPA 21/2021 & CM APPL. Nos. 1383/2021 (for ad -interim reliefs) ,
1384/2021 (for direction s to Respondent No. 2 – UPSC)

3. The present Letters Patent Appeal under Clause 10 of Letters P atent is
directed against the final order and judgment dated 20th November, 2020
passed by the learned Single Judge in W.P.(C .) 8510 of 2020. By way of the
impugned order , the learned Single Jud ge has dismissed the writ petition
filed by the Petitioner (being the Appellant herein) praying for a writ of
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Certiorari seeking inter alia the quashing of the examination of the National
Defence Academy & Naval Academy Examination (II), 2020 held on 6th
September, 2020 by the Respondent No. 2 .

4. On 16th June, 2020 , Respondent No. 2 issued notice N o. 08/2020 –
NDA -II for the abovesaid exam ination . Pursuant thereto, the Appellant
applied , and was allocated a roll number for appearing in the examination , to
be held at the test centre at Bhopal Institute of Technology, Bhojpur Road,
Bhopal. The grievance of the Appellant is that on the date of examinat ion
there were irregularities by the invigil ators at the examination centre,
inasmuch as , the question paper and the OMR sheets distributed prior to the
exam , were subsequently changed by the m. This result ed in a loss of
approximately 30 minutes of precious time, putting 96 candidates having
Roll Nos . from 04 13369 to 0413464 under mental stress and causing them
inconvenience and disadvantage in a highly competitive examination. This
was reported to Respondent No. 2 by way of an e -mail dated 08th September,
2020 followed by a reminder on 18th September, 2020.

5. The stand of Respondent No. 2 in respect of the aforesaid complaints
was intimated to the petitioner vide e-mail dated 25th September, 2020
wherein it was inter alia stated that:
“The matte r was taken up with the coordinating supervisor , Bhopal
and it has been informed that in ‘E’ section at Bhopal Institute of
Technology, Bhopal in the second session, question papers were
distributed at 1: 55 pm. However, some question paper was
distributed wrongly and OMR sheets of some candidates were
changed which took 4 -5 minutes and hence ther e was no loss of time
for the candidates. It may please also be noted that no such
complaint has been received from any other candidate.”

6. In the afore-noted factual background, the Appellant preferred the writ
petition praying for a writ of Certiorari seeking quashing of the examination
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conducted in pursuance to the Examination Notice No. 08/2020 -NDA -II.
Additionally , a writ of mandamus was also prayed for directing the
Respondent s to re -conduct the examination afresh and, in the alternative , a
direction to the Respondent to allow the Petitioner to appear in the next
examination to be held in the year 2021.

7. The learned Single Judge took note of the rival contentions of the
parties, and observed that the factual dispute relating to the time los t on
account of re -distribution of papers is a fact which cannot be determined on
the basis of the material on record , to take a view one way o r the other.
Further the learned Single Judge observed that the factual issue can only be
substantiated by leading evidence on the disputed questions of fact, which
cannot be examined in a writ petition under Article 226 of the Con stitution
of India. In view of the settled legal position relating to the exercise of the
writ jurisdiction by the Court s, the learned Single Judge opined that the
Court cannot enter into the arena of a factual dispute and the Petitioner is
best left to raise his grievances by initiating civil proceedings and/or
claim ing damages.

8. Mr. Tanmaya Mehta, learned counsel for the Appellant argue s that the
learned Single Judge has failed to appreciate that on the date of the
examination, the OMR sheets were distributed to the candidates at 1:50 PM
and the question paper s at 2:00 PM. The extra 10 minutes were given to the
candidates to fill the OMR sheets without mistake. He claims that t he filling
of OMR sheets genuinely takes about approximately 10 minutes and it is an
admitted position that in the case of the Appellant , after start of the
examination , the invigilator s realised that the question papers were wrongly
distributed and recalled the same along with the OMR sheets. Later, fresh
OMR sheets along with the correct question papers were re -distributed. This
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result ed in a loss of valuable time on account of filling in the fresh OMR
sheets and attempting the question paper. He submit s that the examination in
question is very competitive and even the loss of minuscule time is of great
consequence and can significantly influence the ultimate result . Therefore,
the Appellant , having been deprived of the full time available to answer the
exam , is gravely and seriously prejudice d.

9. Mr. Mehta further argued that the learned Single Judge has also
recorded a finding with re spect to the wrong distribution of the OMR sheets
and question papers. He urged that in view of observations made in the
impugned order and the admissions by Respondent No. 2 , it is evident that
irregularities had indeed taken place during the conduct of invigilation on 6th
September, 2020 and, the Appellant ought to have been given extra time to
complete the examination. Therefore , the loss of time has seriously impaired
the Appellant ’s chances of success in this competitive examination as the
marks obtained by the candidates are extremely vital , reason being that the
final selection is based on the cumulative marks obtained by a student in the
written examination as well as in the SSB interview . He emphasized that this
examination was the last attempt available with the Appellant for having a
career in the defence services.

10. We have duly considered and reflected upon the submissions
advanced by Mr. Mehta and perused the record . Clearly, we cannot find any
admission on the part of the Respondent s as Mr. Mehta is portray ing before
us. In the counter affidavit to the writ petition, notice whereof was taken by
the learned Single Judge, the Respondents did not make any admissions to
the allegations made by the Appellant . On the contrary, we find that
Respondent No. 2 , while specifically controvert ing the allegations of the
Appellant , has also stated that Appellant has mis -represented the facts . We
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also, on perusal of the counter affidavit, notice that Respondent No. 2 has
categorically and emphatically denied any irregula rity on their part . They,
however , do state that some question papers were wrongly distributed and on
that account , the OMR sheets of some candidates were changed which took
4-5 minutes , but despite that, it is stressed that th ere was no loss of time.
This stand is borne out from the e -mail sent by Respondent No. 2 to the
Appellant , re-iterated in the counter affidavit filed before the learned Single
Judge.

11. The principle of law followed by the learned Single Judge for refusing
to enter into the factual disputes while exercising writ jurisdiction is well
settled and needs no emphasis . The Apex Court and several High Courts in a
catena of judgments have repeatedly held that “High Court does not
generally enter upon a determination of questions which demand an
elaborate examination of evidence to establish the right to enforce which the
writ is claimed . [See: Thansingh Nathmal v. A. Mazid , (AIR 1964 SC
1419) ]. Recently, in Bihar Staff Selection Commission v. Arun Kumar ,
(2020) 6 SCC 362, the Supreme Court has held that under Article 226, the
scope of judicial review is narrow in matters pertaining to evaluation of
candidates for the purpose of recruitment for public service.

12. There can be no dispute that the nature of assertions made by the
Appellant and the stand of the Respondent No. 2 brings out questions of fact
which necessarily require adducing of evidence. Therefore, this factual
disagreement cannot be appropriately tried in a writ petition. In the
circumstances noted above, the Appellant has been rightly relegated to avail
remedy by way of civil proceedings. Thus, in view of the factual controversy
and the case law s noticed above, we do not find any fault in the view taken
by the learned Single Judge, on this count.
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13. Next, we are of the opinion that even the relief s sought in the writ
petition could not have been granted. The petitioner sought the cancellation
of the entire exam ination . The Supreme Court in several decisions has
pointedly observed that the courts should not easily interfere in the
examination process [See: U.P. Public Service Commission v. Rahul Singh ,
(2018) 7 SCC 254 ].

14. Mr. Mehta, submits that the Appellant is more concerned with the
other relief sought in the writ petition whereby the Appellant is seeking a
direction to re -conduct the examination afresh by allowing the Appellant to
re-appear in the same . In our vi ew, this relie f also cannot be granted merely
on the basis of allegations made by the Appellant , which are highly
contested and controverted by Respondent No. 2. In the decision rendered in
Mahipal v. Union of India , (MANU/DE/1752/2020), to which one of us
(Rajiv Sahai Endlaw, J) was a party , the relief of re -examination as prayed
for, was declined. The said decision concisely summed up the precedents in
respect of law on cancellation of competitive exams. The same is reproduced
as follows:
“14. On a conspectus of past precedents, the law on
annulment/cancellation of competitive examinations or result
thereof, in Amit Kumar Sharma v. UOI [MANU/DE/1306/2020 ],
was held to be, (i) that c ompetitive examinations, holding whereof
takes mammoth organization, cannot be annulled on mere
conjectures and surmises; (ii) that it cannot be lost sight of that
annulment of examination and consequent holding of fresh
examination (which takes re -organiz ation and hence time) ultimately
causes delay and has cascading effect; (iii) that the same also results
in the examinees being inconvenienced; (iv) that holding of fresh
examination also, besides costing money, takes considerable effort;
(v) that annulmen t of examination without proper cause will thus be
detrimental not only to the body/entity holding the examination but
also to the large number of candidates taking the examination and
would be against the public interest and would amount to, a cure
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worse than disease; (vi) that merely because a controversy has been
raised, would not invite the drastic order which has a devastating
effect on a large number of people; (vii) that en masse cancellation
can be resorted to only on finding a large number of such selections
to be tainted and segregation of good and bad being difficult and a
time consuming affair; (viii) that the examinations are thus not to
be annulled lightly, on the mere asking of any one, with the
allegations of possibility of the same having be en corrupted ; (ix)
that only when it is sufficiently established that the examination
though purportedly conducted, was no examination and cannot be
treated as a test of proficiency of students taking the examination
or had ceased to be competitive or that the defects/malpractices
therein had seeped to such an extent as to make it impossible for
the examining authority or the Court to determine a fair result of
the examination, would the Court be justified in annulling an
examination; and, (x) that en masse cancellation would otherwise
be violative of Article 14 of the Constitution of India .”
(Emphasis supplied)

15. On the queries raised by the Court, Mr. Mehta admits that the
examination in question was to be conducted in two parts and the alleged
incident of delay in distribution of the correct question papers and OMR
sheets occurred in respect of the afternoon session of the examination. Mr.
Mehta , responding to the query of the court, is not able to show any
complaint made on the spot. The first protest by the Petitioner is two days
later. Mr. Mehta, further responding to the query of the Court, states that the
Appellant has not been able to clear the examination in any of the previous
attempts. While it cannot be disputed that a candidate who may not have
cleared the examination previously could have d one so in this attempt,
however the Court can always take into consideration the past performance
to assess the merit/ standing of the candidate . We also cannot disregard the
stand of Respondent No. 2 that out of the 96 candidates who were to appear
at the Bhopal Centre , the Appellant is the only one who has raised the
grievance of suffering from a loss of time . These facts are being recorded
only to stress that in the absence of evidence, if we were to proceed on the
basis of the facts presented before us, and even if we were to apply the
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doctrine of preponderance of probabilities, we cannot infer misconduct and
negligence on the part of the Respondents and come to the rescue of the
Appellant. Thus, we are of the opinion that i n the absence of any support to
the assertion s made by the Appellant, the veracity of the stand of the
Appellant is indeed questionable and there is no infirmity in the impugned
order .

16. In view of the foregoing, we find no merit in the present appeal.
Accordingly, the same is dismissed.

17. The pending applications also stand disposed of .

SANJEEV NARULA, J

RAJIV SAHAI ENDLAW, J
JANUARY 14, 202 1
nd
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