4 Questions Deleted From Delhi Judicial Prelims, 2015

The Delhi High Court on Monday, May 09 2016 in Sumit Kumar Vs. High Court of Delhi has quashed the result of Delhi Judicial Service Preliminary Examination 2015 and ordered the High Court Administration to recomputed after deleting four questions, which had more than one correct answer.

A division bench of Justice Sanjiv Khanna and Justice Najmi Wazri asked the court registry to fix the cutoff marks for the recomputed preliminary papers and to come out with fresh list of selected candidates for the main examination.

# Delhi Judicial Service Preliminary Examination 2015

The Court has found that answers of question Nos. 94, 97, 113 and 197 in the Multiple Choice Question Paper were incorrect.

Three propositions of law emerge from Kanpur University v. Samir Gupta, (1983) 4 SCC 309, on the permissible extent of judicial review of an answer key.

First, the answer key must be presumed to be correct and must be followed, even in the face of a mere doubt, second, only if a key answer is demonstrably wrong, in the opinion of a reasonable body of persons well-versed in the subject, it may be subject to judicial review, and third, if the answer key is incorrect beyond doubt, then a candidate cannot be penalised for answers at variance with the key.

This position was reiterated in Manish Ujwal and Ors. v. Maharishi Dayanand Saraswati University and Ors., (2005) 13 SCC 744 and DPS Chawla v. Union ofIndia, 184 (2011) DLT 96.

While deleting four questions the High Court held as follows:

Delhi Judicial Service Preliminary Examination 2015 Question No.94 in Series B

“Q 94 The Vice President of India is:

1. Directly elected by the people.

2. Elected by the same electoral college which elects the President.

3. Elected by the member of Lok Sabha and Rajya Sabha in a joint sitting.

4. Elected by the members of Rajya Sabha only.”

As per the respondent, the correct answer is “Elected by the members of Lok Sabha and Rajya Sabha in a joint sitting”.

However, it is accepted that as per Article 66 read with Article 108 of the Constitution, Vice President is elected by the members of an electoral college consisting of members of both the Houses of Parliament by a system of proportional representation by means of a single transferable vote. The voting is by secret ballot.

It may be relevant to state that by the Eleventh Amendment to the Constitution in 1961, the requirement of “members of both Houses of Parliament assembled at a joint meeting” was substituted by the words “members of an electoral college consisting of the members of both Houses of Parliament”.

Thus, the requirement that members of both Houses of Parliament should have assembled in a joint meeting was specifically deleted.

Article 108 of the Constitution stipulates when there can be a joint sitting of both the Houses of Parliament, which is a rarity.

We are not inclined and do not accept, the submission of the respondent that the suggested answer No.3 is the most appropriate answer, for the answer as suggested is incorrect. In such circumstances, a person marking option No.3 as correct would be marking an incorrect answer as correct.

On the other hand, a candidate, who has read and examined history of Article 66 of the Constitution and is also aware of Article 108 of the Constitution, would get confused and perplexed, for he would be aware and conscious that Vice President is not to be elected by members of both the Houses of Parliament assembled in a joint meeting.

Once we hold that all the four suggested answers were incorrect, then obviously a candidate could not have marked the most appropriate answer out of the suggested answers. Question No.94, therefore, should be deleted from the array of questions.

Delhi Judicial Service Preliminary Examination 2015 Question No.97 of Series B

“Q 97. Which of the following statements is incorrect regarding Union Budget 2015-2016:

1. 5 more AIIMS in Jammu and Kashmir, Punjab, Tamil Nadu, Himachal Pradesh, Bihar and Assam,

2. University of Disability Studies will be established in Kerala,

3. 150 crore allotted for Atal Innovation Mission,

4. Direct Benefit Transfer (DBT) will be further be expanded to 2.3 crore from 1 crore.”

The aforesaid question required the candidates to mark the incorrect statement out of the four suggested answers. As per the respondent, answer No.4 is the correct answer. There are two difficulties in accepting the plea of the respondent that answer No.4 is the only incorrect statement.

Firstly, answer No.4 itself is ambiguous, for it refers to numerical figures 2.3 crore and 1 crore, and does not specify whether it refers to rupees or number of persons. Secondly and importantly, answer No.1 is also incorrect. The answer refers to five more AIIMS in Jammu Kashmir, Punjab, Tamil Nadu, Himachal Pradesh, Bihar and Assam. If we count the states mentioned, they are six in number, whereas in the answer, reference is to ‘five’ more AIIMS. A candidate may assume that reference to six states instead of five as asked, would make Answer Choice No.1 incorrect.

The contention of the respondent is that reference to Bihar is by mistake or by way of a typographical error. We would not accept the said contention, for the State of Bihar as mentioned is to be found after the State of Himachal Pradesh and before the State of Assam.

Further, during the course of hearing, counsel for the respondent had filed a copy of the text of the Finance Minister‟s Budget Speech, the relevant portion of which reads as under:-

“80. Hon‟ble Members will remember that in the Budget Speech of July, I had indicated my intention to provide one major Central Institute in each State. In the fiscal year 2015-16, I propose to set up All India Institutes of Medical Sciences in J&K, Punjab, Tamil Nadu, Himachal Pradesh and Assam. Keeping in view the need to augment Medical Sciences in Bihar, I propose to set up another AIIMS like institution in these States. In Kerala, I propose to upgrade the existing National Institute of Speech and Hearing to a University of Disability Studies and Rehabilitation.”

A reading of the actual text would show that the Finance Minister had stated that in view of the need to augment medical sciences in Bihar, it had been proposed to setup another AIIMS- like institution in these States. The answer choice No.1 as suggested, refers to five more AIIMS and not an AIIMS like institution. Thus, answer No.1 as suggested could be a wrong answer to a person, who had gone through the speech and carefully studied the same.

The question, as posed, was with reference to the recent Budget Speech of the Finance Minister and was to ascertain a candidate‟s interest in both finance as well as the field of medical science. When we apply the test stipulated in Kanpur University (supra), it is evident that this question, in view of the answers suggested, is clearly doubtful and ambiguous.

We have to hold that the suggested key is demonstrably wrong as answer No.1 would also satisfy the said requirement. We would, therefore, delete the said question.

Delhi Judicial Service Preliminary Examination 2015 Question No.197 of Series B

“Under Section 60A of the CrPC, a person can be arrested

1. In case of commission of offence in the presence of a police officer

2. On credible information about commission of an offence punishable with imprisonment for more than seven years

3. On a complaint by a victim, when a police officer has reason to believe that the concerned person has committed the offence

4. Under all these circumstances”

Section 60A of the Code of Criminal Procedure, 1973 reads as under:-

“60A. Arrest to be made strictly according to the Code. – No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.”

A reading of the said section would show that it does not refer to a specific provision of law and is a general provision which simply stipulates that a person can be “only” arrested in accordance with the provisions of the Code or any other law in force providing for arrest.

In other words, a police officer does not have power of arrest, unless the said power is specifically conferred and stipulated by the Code or a provision of law.

As per the answer key, answer choice No.4 i.e. “under all these circumstances” is the correct answer. In other words, a person can be arrested under the three circumstances mentioned and stated in suggested answer Nos.1, 2 and 3.

Answer No.1, however, is an incorrect suggestion. A police officer has the power to arrest when a cognizable offence is committed in his presence. A police officer does not have the power to arrest when a non-cognizable offence is committed in his presence.

The difference between the term “cognizable” and “non-cognizable” is extremely important and relevant to a candidate appearing in the judicial examination. Thus, answer No.1 would be wrong, for a police officer does not have power to arrest when he sees a non-cognizable offence being committed.

This is clear from Section 41(1) (a) of the Code of Criminal Procedure, 1973, which stipulates that a police officer may, without an order from a Magistrate and without a warrant, arrest a person, who commits in his presence a cognizable offence.

As per Section 41(2) of the Code of Criminal Procedure, 1973, in cases of all non- cognizable offences, a police officer is required to obtain warrant from a Magistrate to arrest the accused. The said question would, therefore, fail the test as stipulated in Kanpur University (supra) and has to be deleted.

Delhi Judicial Service Preliminary Examination 2015 Question No.113

The said question and the suggested answers read as under:-

“Q.113 Choose the word which best expresses the meaning of the given word.

RISQUE (1) Slightly humorous (2) Slightly improper (3) Slightly risky (4) Very risky.”

The correct answer as per the respondent is option (3)-“Slightly risky”.

As per the Oxford English New Dictionary, meaning of the word/term “risqué” is as under:-

“Of a joke, story, etc.: slightly indecent, liable to shock slightly.”

The word “risque”, on the other hand is:

“noun, verb see RISK noun, verb”

The word „risk‟ has been defined as:-

“1. Endanger, put at risk, expose to the chance of injury or los

2. Venture on; accept the chance of (a thing, doing)”

The word “risque”, as per the Oxford Dictionary New 8th Edition, means:-

“slightly indecent and liable to shock, especially by being sexually suggestive : his risqué humour.”

As per the Cambridge Dictionary, meaning of the word “risqué” is :-

“of jokes or stories slightly rude or shocking, especially because of being about sex.”

As per the „Instant Grammar Checker‟ at http://www.thefreedictionary.com, meaning of the words “risqué” and “risque” is as under:

„risqué‟ “Suggestive of or bordering on indelicacy or impropriety.” „risque‟ “obsolete another name for risk”

Other dictionaries like Collins also define the term/word “risque” as a French word referring to or bordering on impropriety or indecency in a rude and slightly shocking way.

Learned counsel for the respondent had highlighted in the shorter Oxford English Dictionary the words “risque” and “risqué”, which were separately mentioned.

The latter was with an “accent” mark over the letter „e‟. The word “risque” has been described as a verb or a noun and refers to the word risk. On the other hand, the term “risqué” with an “accent” mark has been described as an adjective and means: “of a joke, story etc., slightly indecent, liable to shock slightly”.

The difference in the two words and the meaning assigned to them in the dictionaries is predicated on the presence of diacritical over the alphabet „e‟ in one and absence in the other.

Diacritical is a mark, point or a sign attached to the letter to indicate its exact phonetic value, or to distinguish it from another letter.

Diacritical as micron (long) or breve (short) have a phonetic value and relate to pronunciation.

In the context of the question as framed, the suggested answers include meanings assigned to the said word with or without diacritical. This has undoubtedly caused confusion.

This being the situation and as two or more suggested answers examined from the eye of a reasonable man well conversant with the field, are equally plausible and acceptable, the answer key has to be rejected.

As two or more of the suggested answers are correct, the model answer key and the question would falter as only one suggestion was to be marked.

We accordingly hold and observe that this question and suggested answers fall foul of the test stipulated in Kanpur University (Supra) and should be deleted.

Delhi Judicial Service Preliminary Examination 2015 Question No.189 in Series D

“Question No.189 The doctrine of subrogation enables

(1) A third party to stand in the shoes of a creditor.

(2) Creditor to sue the debtor.

(3) The debtor to postpone the payment.

(4) Includes all these.”

The objection is on the ground that the question was out of syllabus, for the doctrine of subrogation is postulated under the Transfer of Property Act.

We reject the said contention, for the doctrine of subrogation is well recognized even in insurance law and can well be treated as a part of the general body of law.

When we apply the test stipulated in Kanpur University (supra), the objection raised to this question must fail.

Delhi Judicial Service Preliminary Examination 2015 Question No.61

The said question and the answers suggested read as under:-

“Q.61 An Arbitration agreement is deemed to be in writing if it is contained in

(A) a document signed by the parties

(B) an exchange of letters, telegram or other means of telecommunication, including communication through electronic means providing a record of agreement,

(C) an exchange of submissions in which the existence of the agreement is alleged by one party and not denied by the other.

(1) Only (A) and (B) and not (C)

(2) Only (A) and not (B) and (C)

(3) All the three above.

(4) None of the above.”

The question, as posed does not refer to an arbitration agreement in writing, but an agreement which is deemed to be in writing though not in writing. The suggested answers have been examined and selected with reference to the question. Therefore, reliance placed by the petitioner on Section 7(4) of the Arbitration and Conciliation Act 1996 is inconsequential and fallacious. The High Court had rightly deleted the said question.

Delhi Judicial Service Preliminary Examination 2015 Question No. 69

Q. 69 An arbitration award given on 21st August 1996 can be challenged under: (Booklet Series D)

1. Arbitration and Conciliation Act, 1996

2. Arbitration Act, 1940

3. Code of Civil Procedure, 1908

4. High Court Rules”

Our attention was drawn to Section 85 of the Arbitration and Conciliation Act, 1996, which is the repeal and saving clause. The said question was rightly deleted for applicability of the Arbitration and Conciliation Act, 1996 or Arbitration Act, 1940 depends primarily upon date of commencement of arbitration proceedings unless the parties agree that the 1996 Act shall apply in relation to proceedings which had commenced before the 1996 Act was enforced. The challenge on this account must fail.

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