Punjab-Haryana High Court
Surinder Pal And Others vs State Of Punjab And Another on 1 May, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 25413 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: May 1st , 2013
CWP No. 25413 of 2012 (O&M)
Surinder Pal and others
.....PETITIONERS
VERSUS
State of Punjab and another
.....RESPONDENTS
CWP No. 25796 of 2012 (O&M)
Dr. Daljit Singh .....PETITIONER
VERSUS
State of Punjab and another
.....RESPONDENTS
CWP No. 260 of 2013 (O&M)
Charanjit Singh and others
.....PETITIONERS
VERSUS
State of Punjab and another
.....RESPONDENTS
CWP No. 44 of 2013 (O&M)
Sangeeta Gupta and others
.....PETITIONERS
VERSUS
State of Punjab and another
.....RESPONDENTS
CWP No. 1306 of 2013
Surinder Kumar and others
.....PETITIONERS
VERSUS
State of Punjab and another
.....RESPONDENTS
CWP No. 25413 of 2012 (O&M) 2
CWP No. 2540 of 2013
Vishal Lomas
.....PETITIONER
VERSUS
State of Punjab and another
.....RESPONDENTS
CWP No. 2638 of 2013
Jaswinder Singh
.....PETITIONER
VERSUS
State of Punjab and another
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT:Mr. D.S.Patwalia, Advocate,
with Mr. Salil Sablok, Advocate,
and Mr. Abhishek Singh, Advocate,
Mr. Pankaj Jain, Advocate,
Mr. Ramandeep Singh Pandher, Advocate,
Mr. R.S.Rawat, Advocate,
Mr. S.S.Sarwara, Advocate,
Mr. Ankit Aggarwal, Advocate,
Mr. P.S.Grewal, Advocate,
for the petitioner(s).
Mr. Ashok Aggarwal, Advocate General, Punjab,
with Mr. Harsimran Singh Sethi, Additional Advocate
General, Punjab, for the respondents.
AUGUSTINE GEORGE MASIH, J.
By this order, I propose to decide CWP Nos. 25413 and 25796 of 2012, 260, 44, 1306 and 2540 of 2013, wherein prayer has been made for setting aside the result/merit list dated 11.12.2012 issued by the Punjab Public Service Commission in pursuance to the CWP No. 25413 of 2012 (O&M) 3 preliminary examination conducted for recruitment to various posts to be filled up under the Punjab State Civil Services Combined Competitive Examination, 2012.
Challenge has been posed to the result/merit list primarily on the ground that large scale discrepancies in the keys/answer sheets to the various questions have been found by the Punjab Public Service Commission (hereinafter referred to as 'Commission') and have en-block granted grace marks to all candidates irrespective of the fact whether such candidate had attempted the said questions or not, which amounts to unjust benefit to those candidates who have not attempted the said questions correctly. Another ground, which has been taken, is that the respondents have not taken action on the representations submitted by the candidates for correction of various discrepancies which spanned from the questions being wrong to wrong answer keys as also there being no correct option given in the multiple choice answers and no efforts have been made for correcting the mistakes. The petitioners have laid the foundation of their claims upon a judgment passed by this Court in CWP No. 10309 of 2012 titled as Jitender Kumar and another vs. Haryana Public Service Commission, decided on 30.08.2012 and prayer has been made for issuance of similar directions in the present case or referring the objections/discrepancies as pointed out by the petitioners in their representations to the Experts Committee to examine the same and suggest remedial steps, which can be taken CWP No. 25413 of 2012 (O&M) 4 into consideration by the Commission and given effect to for rectification of the errors so that no prejudice is caused to any candidate.
With the consent of the counsel for the parties, the writ petitions are being taken up together for consideration and disposal as common questions of fact and law are involved in these cases. For the sake of convenience, facts are primarily being taken from CWP No. 25413 of 2012 titled as Surinder Pal and others vs. State of Punjab and others.
An Advertisement No. 7 dated 14.09.2012 was issued by the Commission-respondent No. 2 inviting applications from the eligible candidates for filling up 160 posts to be filled through Punjab State Civil Services Combined Competitive Examination, 2012. It was mentioned that requisition has been received from the Government of Punjab to fill up 30 posts of Punjab Civil Services (Executive Branch), 20 posts of Deputy Superintendent of Police, 30 Excise and Taxation Officers, 9 Tehsildars, 25 Food Supply and Consumer Affairs Officer, 28 Block Development and Panchayat Officer, 11 Assistant Registrar Co-operative Societies and 7 Employment Generation and Training Officer. It was mentioned that the number of posts may be increased or decreased by the Government at any time before the selection process is completed without giving any prior notice to the candidates. Last date for receipt of applications was fixed as 08.10.2012. The candidates CWP No. 25413 of 2012 (O&M) 5 were required to fill on-line application form, which was available on the website of the Commission.
The selection process involved two essential steps, first being the Preliminary Competitive Examination and the second Main Competitive Examination (written and viva-voce)(hereinafter referred to as 'Prelims and Mains' respectively). Prelims was to consist of two papers i.e. Paper-I General Studies and Paper-II Civil Services Aptitude Test, common to all candidates. The candidates equal to 13 times of total number of vacancies requisitioned by the Government under Sub-Rule (1) of Rule 13-A of the Punjab Civil Services (Executive Branch) Rules, 1976 read with Punjab State Civil Services (Appointment by Combined Competitive Examination) Rules, 2009 may qualify for the Mains. A candidate was required to attempt the examination in English or Punjabi language unless otherwise directed. Prelims is designed to sift suitable candidates for the Mains. Marks obtained in the Prelims by the candidates, who may be declared qualified for taking the Mains, were not to be counted for determining their final order of merit. The questions were required to be answered by the candidates on an Optical Marks Reader (OMR) Sheets. All candidates were required to appear in both papers i.e. Paper-I and Paper-II of Prelims, which were compulsory. Duration of each paper was to be two hours and each examination was for 150 multiple choice objective type questions. Each question carried one mark for every correct answer and there was no negative marking. CWP No. 25413 of 2012 (O&M) 6
Since the petitioners were eligible and had applied well in time, their applications were accepted and were issued Roll Numbers. Punjab State Civil Services Competitive Examination, 2012 was fixed for 25.11.2012 at different centres in Chandigarh. Petitioners appeared in the said examination. The candidates, who appeared in the examination, were not allowed to carry question papers after the completion of the examination. On 27.11.2012, the respondents-Commission uploaded answer keys along with question papers on its official website and it was on this date, the candidates were made available the question papers along with the answer keys.
On 29.11.2012, Commission issued a notice, vide which the candidates were informed that any observation regarding the question papers and the answer keys may be brought to the notice of the Commission by 03.12.2012 Forenoon. The queries could be mailed to the office of the Commission at enquiry @ ppsc.gov.in or could be sent through post/by hand before the above-mentioned date and time. The Commission shall not be bound to respond the queries received after the above-mentioned date and time. It was clarified that the decision taken by the Commission on observations received from the candidates shall be final and shall be hosted on the website of the Commission for information. The candidates including the petitioners, on going through the question papers along with the answer keys made available by the Commission, came across a CWP No. 25413 of 2012 (O&M) 7 number of questions whose correct answers were not matching with the answers, as provided by the Commission vide answer keys. Petitioners brought to the notice of the Commission some of the questions whose correct answers were not matching with the answers provided by the Commission on its website.
On 07.12.2012, the respondents-Commission issued a corrigendum whereby in Part-A, it accepted few discrepancies in the answer keys i.e. three questions in Paper-I and six questions in Paper-II carrying wrong answers in the answer key and thus, were accordingly rectified. In Part-B of the Corrigendum, it accepted six questions to be absolutely wrong and granted to all candidates grace marks for these wrong questions irrespective of the attempt to these questions by a candidate or not. This has been asserted by the petitioners to be without any Authority, Rules or Regulations causing prejudice to the candidates, who had attempted the questions correctly. It has been further asserted by the petitioners that the other questions, which were pointed out by them to be discrepant/incorrect/wrong, have not been considered by the Commission. The Commission, on 07.12.2012, issued the merit list of all the candidates giving six grace marks to all candidates for these incorrect questions. Petitioners could not score the minimum requisite cut off marks as were fixed by the Commission in the category they had applied.
On 12.12.2012, the respondents-Commission issued a public notice, whereby it informed that the list of shortlisted CWP No. 25413 of 2012 (O&M) 8 candidates for main examination has been uploaded on the website and the last date for receipt of the application form is 02.01.2013 till 5 P.M. It is at this stage that the petitioners have approached this Court by filing these writ petitions asserting that the questions, which were admittedly wrong and/or of which answers were incorrect, grace marks have been awarded to each and every candidate irrespective of the fact whether such candidate had attempted the questions or not thereby resulting in unjust benefit to those candidates who had not attempted the said questions viz-a-viz those candidates who had attempted the questions correctly.
The second grievance of the petitioners is regarding the inaction of the respondents in not considering their representations for correction of various other discrepancies in the Prelims, as pointed out by the petitioners and other candidates, wherein either wrong questions/wrong answer keys have not been considered by the respondent-Commission.
Response to the writ petition has been filed by the respondent-Commission, wherein the basic facts, as have been asserted by the petitioners in the writ petition, have not been disputed rather it admitted the situation emerging as till the issuance of the public notice dated 29.11.2012 calling upon the candidates to submit their responses/comments to the uploaded question papers and answer keys by 03.12.2012 Forenoon.
It has been asserted that prior to the time fixed by the Commission, 1045 mails and 40 queries by post were received in the CWP No. 25413 of 2012 (O&M) 9 Commission's office. After perusing all the e-mails and postal queries in came out that these queries related to 83 questions in Paper-I and 81 questions in Paper-II i.e. total 164 questions out of
300. The respondent-Commission formed a sub-committee of five members to examine all these queries. Members of the Commission, whose wards or blood relations had appeared in this examination, voluntarily recused themselves from the entire examination process. This sub-committee examined all these queries and initially sought opinion/comments of the Paper Setters and thereafter Subject Experts wherever required. The sub- committee had also taken independent opinion of Subject Experts in few questions to arrive at a right conclusion.
These 164 questions were classified into five categories. First category contains questions, which were factual in nature. These types of questions were 62 in Paper-I and 61 in Paper-II totaling 123. The second category of questions were of those questions which were opinion based and explanation/reasoning of the Paper Setter was required. These were 11 questions in Paper-I and 16 in Paper-II totaling 27. Third category consisted of questions having minor printing/typographical errors which do not alter the spirit of the questions. These were two questions only in Paper-I, question Nos. 57 and 80. Fourth category was of wrong questions, which were six in Paper-I only i.e. question Nos. 5, 33, 34, 35, 97 and 146. Fifth category was of questions, in which answer keys were required to be CWP No. 25413 of 2012 (O&M) 10 corrected. These were three questions in Paper-I i.e. question Nos. 3, 61 and 133 and six in Paper-II i.e. 18, 39, 83, 87, 96 and 131. Three questions out of the above i.e. question No. 133 in Paper-I and two questions in Paper-II i.e. 83 and 96 have been shown twice as the same were counted in questions, which were referred to Subject Experts as referred to in category No. 2 as well as have also been mentioned in category No. 5 regarding which the answer keys were corrected. All these questions were again examined by the sub- committee and their answers were verified from the available answer keys, internet sources, Government websites, text books and newspapers. 27 questions were referred to the Paper Setters and their replies were received. Out of the above, five questions were referred to the Independent Experts for their opinion. On receipt of this opinion, the matter was re-considered and it was found out that six questions were wrong in Paper-I, which were discrepancies due to printing errors/factual errors. There was discrepancy in answer key of three questions in Paper-I and six questions in Paper-II. Hence after correcting the answer key, answer sheets were evaluated and thereafter, the result was declared by the Commission on 07.12.2012. The Commission thereafter declared the details of shortlisted candidates on 11.12.2012. It has been further averred that the observations/queries put forwarded by the petitioners were considered by the sub-committee in consultation with the Paper Setters/Subject Experts along with the queries/observations received from the other candidates.
CWP No. 25413 of 2012 (O&M) 11
As regards the contention of the petitioners that the candidates have been granted six marks as a matter of grace has been denied by the Commission. It has been asserted that because of there being inaccuracies in the concerned questions, to which there could not have been any correct answer from the available options, all candidates have been granted six marks for the six incorrect questions. Moreover these six questions were factual in nature and demanded specific answer i.e. either their answer is correct or incorrect and thus, the Commission had no option but to delete those questions or to grant six marks to all candidates. One of these questions was question No. 34 in Paper-I where in the English version of the question was correct but its Punjabi translation was incorrect. There was no mechanism by which the Commission could ascertain as to which of the candidates have referred to Punjabi version while attempting the paper, as choice regarding the medium for attempting the paper was not taken at the preliminary examination level of the candidates. Under these circumstances, the Commission decided to grant marks to all the candidates without favouring one candidate over another, which is in accordance with the spirit of the competent examination. It has been highlighted that there was no negative marking in the Prelims and, therefore, it cannot be assumed that the candidates would not have attempted these questions rather the presumption would be otherwise.
In the reply to the replication, Commission has pointed out that the questions, which have been found to be incorrect i.e. 5, CWP No. 25413 of 2012 (O&M) 12 33, 34, 35, 97, 146 in Paper-I, the percentage of candidates, who have not attempted the said examination, is 1.81, 1.68, 1.59, 1.59, 2.17 and 2.74 respectively, which is a meager number when compared to the number of candidates who had participated in the Prelims i.e. 29,416. All the questions, which have been pointed out by the petitioners in the writ petitions to be incorrect, have been responded to by the respondents-Commission by giving reasons as to why the answers, which have been selected by the Commission to be correct, are justified. Reference has also been made to the questions where consultation with the Experts has been done by the Commission. Assertion has been made by the Commission that the directions given by this Court in Jitender Kumar's case (supra) in the matter of the Haryana Public Service Commission have been complied with as all remedial steps have been taken in accordance with those directions fulfilling the mandate of the judgment prior to declaring the result of the Prelims. All the objections, which have been raised by the petitioners through their representations, have been considered by the Commission and appropriate action taken thereon.
Counsel for the petitioners have argued that the petitioners have been prejudiced because of deletion of these questions by the respondent-Commission and further by granting six marks to all the candidates. In the absence of any Rules, Regulations or Statute, which confer power on the Commission to CWP No. 25413 of 2012 (O&M) 13 grant such marks which can be termed as grace marks, it amounts to malice in law. The exercise of this power by the Commission of granting grace marks to all candidates is illegal as the Punjab Civil Services (Executive Branch) (Class-I) Rules, 1976, does not provide for such power to be conferred upon the Commission. They have referred to the judgment passed by the Supreme Court in the case of Orrissa Public Service Commission and another vs. Rupashree Chowdhary and another, (2011) 8 Supreme Court Cases 108, to contend that there cannot be any question of relaxation or rounding off the marks especially when no power was provided in Rules permitting such rounding off or giving grace marks. No dilution or amendment to such Rules was permissible or possible by adding words to Rules for giving benefit of relaxation. Similarly, the grant of these marks to each candidate by the Commission by deleting the said questions is illegal and not sustainable in law. The said benefit should have been granted to the candidates as per their attempt. Reliance has also been placed upon the judgment of the Supreme Court in Pankaj Sharma vs. State of Jammu and Kashmir and others, (2008) 4 Supreme Court Cases 273, wherein the resort to grant of marks to the candidates on pro-rata basis keeping in view the discrepancies pointed out in the representations in the questions/answer keys stands approved by deleting the questions. It has, therefore, been asserted that the action of the respondents in granting six marks to all the candidates, who participated in the selection, is unsustainable.
CWP No. 25413 of 2012 (O&M) 14
Counsel for the petitioners has referred to various questions in Paper-I and Paper-II and have taken this Court through them pointing out therein the discrepancies and the inaction on the part of the Commission in correcting those errors, which, according to them, are apparent on record. It has been submitted that a sub- committee consisting of its members has been constituted by the Commission who are not experts in the field and thus they cannot determine the correctness or otherwise of the questions/answers etc. as have been pointed out by the candidates through their representations, which have been admitted by the Commission to be numbering at 164 questions out of 300. Further, these discrepancies, as pointed out by the candidates, have been referred back to the Paper Setters, who were interested parties and cannot be said to be independent or unbiased and would make all the efforts to justify their questions and the answers supplied by them. Their interest would be prejudiced if for future examination, they do not remain the paper setters and for that reason, they would support their questions to be correct and incorrect answers to be the correct answers. For this assertion, reliance has been placed upon the judgment passed by this Court in Jitender Kumar's case (supra). It has been asserted that opinion has been obtained from the Independent Experts on a limited number of questions and, therefore, the answers to the questions have, by and large, been accepted to be correct on the basis of the opinion and comments CWP No. 25413 of 2012 (O&M) 15 given by the Paper Setter alone, which goes against the spirit of the order passed in Jitender Kumar's case (supra). Counsel state that the questions, in which discrepancies were pointed out by the candidates, should have been referred to the Committee of Experts to be constituted by the Commission which should have gone into the same and submitted its opinion, on which basis, the Commission should have acted and proceeded to rectify the mistakes and recheck the answer sheets of the candidates and prepare a fresh result before proceeding to finalize the merit list and shortlisting the candidates for the Mains. They have primarily placed reliance upon the directions issued by this Court in Jitender Kumar's case (supra).
Another argument, which has been pressed into service by the counsel for the petitioners, is that instead of granting en-block one mark each for the six wrong questions, proportionate marks as per the marks scored by the candidates in the remaining questions should have been granted to them. This would have obliterated the undue benefit, which has been conferred upon the candidates who have not even attempted these six questions and rather have been benefitted because of the marks granted to them en-block as grace marks. In support of this contention, reliance has been placed upon a Division Bench judgment passed by the Himachal Pradesh High Court in CWP No. 7618 of 2012 titled as Sanjay Verma and others vs. H.P.Public Service Commission, decided on 19.12.2012, wherein it has been held that a more just and fairer method would be CWP No. 25413 of 2012 (O&M) 16 to value the answers giving proportionate credit to the candidates according to the marks obtained by them out of the remaining questions which are to be deleted because of the same being incorrect. Prayer, on this basis, has been made for setting aside the result/merit list dated 11.12.2012 issued by the Punjab Public Service Commission.
On the other hand, the learned Advocate General, Punjab, has responded to the questions, where discrepancies have been pointed out by the candidates, by justifying the correctness of the questions and the answers on the basis of the pleadings and the material, which has been produced in Court. It has been asserted that the spirit of the directions issued by this Court in Jitender Kumar's case (supra) has been complied with by the respondents on their own without any direction/observation from the Court. Wherever discrepancies were found, remedial steps have been taken and due care and caution has been exercised that no mistake remains unattended to. His contention is that the Commission had proceeded on the principle that when a question is wrong, the answer provided for the said question need not be seen. The question as such is to be analyzed independently and on such consideration, if a conclusion is reached that the question is correct, then the shift has to be towards the options given as answer to the question. If one of the option, so given, is found to be correct, the same is to be treated as a correct question and answer, in which no CWP No. 25413 of 2012 (O&M) 17 discrepancy can be said to have been found. He, on this basis, contends that all the questions, where discrepancies were pointed out either in the questions or the options given as answers, have been analyzed along with their answers and decisions reached for accepting them as correct questions. In this exercise, six questions have been found to be incorrect and, therefore, they have been deleted and all the candidates have been granted one mark for each question. There are certain questions, which require the most appropriate answer to be given by a candidate. This is for the purpose of assessing the knowledge and analytical skill of the candidate. The selection is to most prestigious service of the State for which decision making power of the candidate needs to be tested. Keeping this in light, questions have been set and the candidates have to be accordingly, shortlisted based upon their knowledge and skill, which cannot be faulted with. Where there are minor discrepancies/typographical errors, which do not alter the nature of the question or the optional answer, the same can not be said to be of such a nature, which required to be deleted especially when the Subject Expert comes to this conclusion and opines accordingly.
Upon the power of the Court to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India, the learned Advocate General has referred to the judgment passed by the Supreme Court in the case of Kanpur University vs. Samir Gupta and others, (1983) 4 SCC 309, wherein it has been held that no challenge should be allowed to be made to the correctness of a key CWP No. 25413 of 2012 (O&M) 18 answer unless on the face of it, it is wrong or it is proved to be wrong. Merely by an inferential process of reasoning or by the process of rationalization, it should not be held to be wrong. Reliance has also been made to the judgment in Pankaj Sharma's case (supra), to contend that where the corrective steps have been taken by the Commission suo moto on the basis of the expert opinion, the Court should not interfere in the matter. Reliance has been placed upon the judgment passed by this Court in CWP No. 15781 of 2010 titled as Virender Sharma and others vs. State of Haryana and others, decided on 22.09.2010, wherein it has been held that it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If the Courts would start doing so, they would assume the role of examiner, paper-setter and evaluator, which is to be left to the expert body and, therefore, an assumption has to be drawn that the key answer is correct. There is a limit prescribed for judicial review and the Courts should not exceed the same.
With regard to the contention of the counsel for the petitioners that pro-rata marks should have been assigned to the candidates, he, while referring to the judgment of the Hon'ble Supreme Court in the case of Pankaj Sharma (supra), contends that the said case related to a selection where there was negative marking for incorrect answers while in the present case, there is no negative marking and, therefore, it would not make any difference whether six marks are added to the marks of the candidates or they CWP No. 25413 of 2012 (O&M) 19 are deleted from the marks of the candidates. Had there been negative marking for the candidates who had attempted the questions wrong, the situation would have been different but here there being no negative marking and almost 99% candidates having attempted the questions, the argument raised by the counsel for the petitioners cannot sustain. No prejudice has been caused to the petitioners by grant of these six marks as all candidates have been granted these marks and in any case, since the Commission has come to a conclusion that six questions were wrong, obviously, there could be no answer to the said questions and, therefore, irrespective of the attempt of the candidates, the result would be the same. Commission, on deletion of these questions, was required to take a decision either to assess the candidates out of 294 marks instead of 300 or to assess the candidates out of 300 marks by granting all candidates six marks. Under these circumstances, the Commission chose the second course, which is without any prejudice to any candidate.
The learned Advocate General has made a statement that during the pendency of the writ petition, the questions, which have been pointed out by the petitioners in these writ petitions, were again gone into and referred to experts for independent opinion, which has been received and on the basis of the said opinion, it has been found that there are no further discrepancies, which require correction by the Commission except question No. 36 in Paper-II where answer key has been found to be incorrect. The published key answer was (c) whereas the correct one is (a). Necessary CWP No. 25413 of 2012 (O&M) 20 corrections will be carried in the answer key and then OMR sheets re-evaluated and fresh result declared. Prayer has, accordingly, been made for disposal of the writ petitions being devoid of any merit.
On the conclusion of the hearing, the learned Advocate General had produced a sealed envelope containing the opinion of the Subject Experts and the Paper Setters to the discrepancies, as have been pointed out by the candidates including petitioners in pursuance to the public notice and in the writs, which was retained by this Court for perusal.
I have heard the counsel for the parties and with their assistance, have gone through the records of the case.
The question, which requires to be answered, is whether the Punjab Public Service Commission has the power to grant marks for the questions, which have been found to be incorrect by the Commission itself and deleted?
It is not in dispute that the Commission is a Constitutional Authority and has been constituted under Article 315 of the Constitution of India. Article 320 of the Constitution provides for the functions of the Public Service Commission and a duty has been cast upon them to conduct the examinations for appointment to the services of the Union or the State depending upon it being a Union or State Public Service Commission. Consultation has been mandated of the Commission on all matters relating to method of recruitment to civil services and for civil posts including the principles to be followed in making appointments to the civil services and posts including CWP No. 25413 of 2012 (O&M) 21 promotion and transfer apart from others.
This makes the things clear with regard to the functions and the duties of the Commissions, according to which, the process of examination and the conduct thereof is the responsibility of the Commission. Two stages have been provided in the selection process. First being the Prelims, which is for the short-listing of the candidates, to be followed by Mains, which is further divided into written examination and viva-voce as is mentioned in the advertisement itself. For fulfilling this mandate, Commission is entitled to take all necessary steps/actions/decisions so that the selection process is concluded successfully as per the mandate of the Rules. This would cast responsibility upon the Commission to conduct and hold the examination for appointment to the services of the State fairly and successfully. Similar situation had arisen with regard to the power of the Commission to grant marks on deletion of the incorrect questions in Jitender Kumar's case (supra), on which reliance has been placed by the petitioners. While considering the same, this Court held as follows:-
" Under the statutory rules and the advertisement it has been laid down that the said examination would be held by the Commission which shall invite applications from the candidates for appearing in the examination and shall also prescribe the form and manner the application should be made and accompanied by the documents as may be prescribed by the Commission. The CWP No. 25413 of 2012 (O&M) 22 Commission, after conclusion of the examination, is required to forward the names of the candidates in order of merit to the Government who are declared as qualified in the examination by the Commission. This leaves no manner of doubt that the process of examination, the conduct of examination, which includes all the three stages, is the responsibility of the Commission and for fulfilling this mandate the Commission obviously is entitled to take all necessary steps/actions/decisions so that the selection process is concluded successfully as per the mandate of the rules.
That apart Commission being a Constitutional Authority, which has been given the duty to conduct examination for appointment to the services of the State under Article 320 of the Constitution, has an onerous responsibility to conduct the same fairly and successfully. It is by now settled proposition of law that where an Act or the Rules confer a jurisdiction, it impliedly also grants the power of doing all such acts and/or employing such means as are essentially necessary to its execution. Thus, to discharge the duties effectively which have been conferred on a Constitutional/Statutory Authority/Body, the power CWP No. 25413 of 2012 (O&M) 23 to take such steps, decisions or actions are inherent in the statute if they are to essentially carry out the effect of the objects of the statute/rules. The responsibility to conduct the preliminary examination and that too successfully and subsequently the main examination and personality test is upon the Commission. In doing so even if there is no specific power conferred upon the Commission to take a decision or to act in a particular manner, would not leave the Commission powerless to take appropriate steps/actions as and when any such situation arises.
In the light of the above, it cannot be said that the Commission did not have power to take such a decision which would be essentially necessary for the execution of the purpose for which the Commission has been constituted and has been assigned the duty to conduct the examination under the Constitution as also under the statutory rules. For exercising such authority no specific power is required to be conferred on the Commission as the said power/authority is inherent in the Commission. Therefore, the contention of the petitioners that the Commission did not have any jurisdiction or authority to take any action in the absence of the CWP No. 25413 of 2012 (O&M) 24 specific powers conferred on it cannot be accepted. However, the decision which has been taken by the Commission, the consequences and effect thereof and the process of such decision making is always open to judicial review."
It would not be out of way to mention here that the statutory Rules governing the service in the present case i.e. Punjab Civil Services (Executive Branch) Rules, 1976 read with Punjab State Civil Services (Appointment by Combined Competitive Examination) Rules, 2009, are similar to those prevalent in Jitender Kumar's case (supra).
In view of the above, it cannot be said that the Commission did not have the powers to delete the incorrect questions and proceed to take further steps which should be reasonable and just.
This takes the Court to the next stage where the Commission has evolved a method to evaluate and find out means and ways to determine the correctness or otherwise of the discrepancies pointed out and thereafter the remedial steps taken. Here the Court needs to test the process of decision making and its reasonableness and fairness in exercise of its power of judicial review. It has been stated by the Learned Advocate General that the Commission adopted and followed the principle to first evaluate and assess the question and check whether the same is correct. If it CWP No. 25413 of 2012 (O&M) 25 failed this test, the question had to be deleted. If it passed this test, the answer-options were checked and evaluated. If there was no correct option as an answer the question had to be deleted. In case there is one correct option as answer out of the options given to a particular question it passed the test and was treated as correct. But if there were more than one options which could be termed as correct, then as per the guidelines in the answer-sheets the most appropriate answer was taken as the correct option. Where the questions passed these tests, the next stage was to check the answer key to the question. In case there was some mistake, the corrections were carried out and thereafter the OMR sheets of the candidates were evaluated. All discrepancies pointed by the candidates including those in these writ petitions have been accordingly analyzed, evaluated and checked and thereafter steps taken to delete them or correct the answer key where the same have been found to be incorrect. For each deleted question all candidates have been granted one mark. This complete process including the remedial steps of the commission are just and reasonable bereft of any bias or arbitrariness and thus approved.
However, this would lead us to the next contention raised by the counsel for the petitioners that an undue benefit has been conferred upon the candidates, who had not even attempted the said six questions, which have been deleted by the Commission finding them to be incorrect.
CWP No. 25413 of 2012 (O&M) 26
It may be noted here that there is no allegation of mala- fide upon the Commission and, therefore, what is required to be looked into is whether any prejudice has been caused by this action of the Commission to the petitioners or similarly situated candidates but answer to this question has to be in the negative. It has been admitted by the counsel for the petitioners during the course of hearing that Commission could have proceeded to take remedial steps to correct the mistake, which has occurred in the conduct of the examination, for which a fair and just procedure should have been adopted by the Commission so that no candidate is unduly benefitted or denied of a right which he is entitled to. It has also been admitted that the two papers for the preliminary examination consisted of 150 questions each and every question is valued at one mark. There was no negative marking. Obviously, had the questions been correct and the candidates attempted the same, they would either get one mark for the correct answer or nil mark for the incorrect answer. When the question itself has been found to be incorrect, the logical conclusion, which can be drawn, is that there can be no correct answer to such a question. Faced with the situation, Commission had to take the call either to grant marks to all candidates for the deleted questions and to evaluate the result of the candidates out of full 300 marks or to grant no marks to any candidate for the said questions and evaluate and compile the result of the candidates out of 294 marks after deleting the six incorrect CWP No. 25413 of 2012 (O&M) 27 questions. Commission chose the first option and granted all candidates six marks across the board. In either of the situations, no prejudice would be caused to the candidates as the comparative difference of marks between the candidates would remain the same. By this process what would happen is that the cut off merit would go up by six marks when the same are added to all and the same would come down by six marks when six marks are deleted of all the candidates. The net result thus remains the same. Thus the action of the Commission is just and reasonable and, therefore, cannot be faulted with.
But the assertion of the counsel for the petitioners that pro-rata marks should have been granted to the candidates according to the marks scored by the candidates cannot be approved. Had the said procedure been adopted by the Commission, it would have been unjust in the facts and circumstances of this case especially when there was no negative marking for incorrect answers. The said option would be effective and applicable and can be termed as just and reasonable in a competition where a candidate is penalized for a wrong choice exercised in the options given to a question. In the case of Jitender Kumar (supra) also, this Court had accepted the principle of granting marks across the board to the candidates for the deleted questions. This principle was adopted therein with regard to the General Studies paper as the said paper was common to all the candidates and there being no negative marking, no prejudice had been caused to them as all discrepant CWP No. 25413 of 2012 (O&M) 28 questions were deleted and the benefit of those questions was granted to in the form of equal marks to all candidates thus, conferring no undue benefit to any of the candidates passing the parameters for testing the reasonableness and equality as laid down under Articles 14 and 16 of the Constitution of India.
Similar is the situation in the present case. Both the papers, paper-I and paper-II, are common to all candidates and there being no distinction on this count, it cannot be said that there was any discrimination meted out to the petitioners or the other candidates merely because some of the candidates have attempted the questions whereas others have not but marks have been assigned to all. The assertion that the candidates, who have rightly attempted the questions, have been denied their rightful claim also cannot be accepted in the light of the fact that the question itself is wrong, therefore, it cannot be said that it carried any correct answer. That apart, the data mentioned in the rejoinder by the Commission justifies its stand, where it states that it had proceeded on the assumption that all candidates have attempted the said questions and, therefore, granted the candidates the marks across the board. As per the statistics, the candidates, who had not attempted the deleted questions, spanned between 1.59% to 2.74%, which is negligible when comparing the total number of candidates who appeared for the Preliminary Competitive Examination, 2012 i.e. 29,416. The principle of pro-rata grant of marks to the candidates as CWP No. 25413 of 2012 (O&M) 29 per their net scores for the incorrect answers would not be applicable to the case in hand but would be a good choice and option where there is negative marking to the questions. The judgments relied upon by the counsel for the petitioners in support of their claim for pro-rata grant of marks to the candidates were all cases where there was negative marking for incorrect answers i.e. in the case of Pankaj Sharma (supra) and the Division Bench judgment of the Himachal Pradesh High Court in Sanjay Verma's case (supra).
Reliance upon the judgment of the Supreme Court in the case of Orrissa Public Service Commission and another (supra) is misplaced on the part of the petitioners as that was a case where grace marks were sought to be given to the candidate so as to bring the candidate up to the minimum requirement, as prescribed under the statutory Rules. Rounding off the aggregate marks from 44.93% to 45% so as to make the candidate eligible for appearing in the interview dehors the Rules, by the High Court was under challenge where the Supreme Court proceeded to hold that it was impermissible where the Rule itself emphasized minimum marks that had to be obtained by candidate concerned for being eligible for appearing in the interview and there cannot be any question of relaxation or rounding off in such circumstances. The case in hand is totally different where eligibility of a candidate is not dependent upon some minimum marks to be obtained by the said candidate for being eligible for moving on the next stage of selection as none has been CWP No. 25413 of 2012 (O&M) 30 prescribed under the Rules. What is provided under the Statutory Rules and in the advertisement is that the candidates equal to 13 times the total number of vacancies requisitioned by the Government will qualifying for the Mains from the Prelims. Therefore, no benefit can be derived by the petitioners from this judgment of the Supreme Court.
The next grievance highlighted of the petitioners in the instant petitions is the inaction on the part of the respondents in not considering their representations for correction of various other discrepancies in the Prelims, wherein wrong questions/wrong answer keys, as pointed out by the petitioners, have not been considered by the respondent-Commission in its right earnest thus, vitiating the result declared by the Commission being violative of the principle and the directions issued by this Court in Jitender Kumar's case (supra). In this regard, counsel for the petitioners has highlighted various questions and produced on record material to justify their claims with regard to the questions or the answer keys to be incorrect, which have been duly responded to by the learned Advocate General, Punjab by his separate material.
On considering the submissions made by the counsel for the parties, the explanation, which has been given by the learned Advocate General, Punjab, appears to be quite justified and reasonable. It needs to be pointed out here at the very outset that this Court is not equipped to go into the correctness or otherwise of CWP No. 25413 of 2012 (O&M) 31 the respective assertions made by the counsel for the parties and in exercise of its extra-ordinary, discretionary writ jurisdiction, it would not like to delve into the details of the questions and answers or their correctness or otherwise.
At this stage, reference can be made to the judgment of the Supreme Court in the case of Kanpur University vs. Samir Gupta's case (supra), wherein the limits within which the constitutional courts can exercise their extra-ordinary powers have been indicated. It has been held that the Court would proceed to allow the challenge to be made to the correctness of the question or the key answer only if on the face of it, the said question or key answer is wrong. It has also been stated there that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. This principle has been quoted with approval in Pankaj Sharma's case (supra). It need to be highlighted at this stage that the examination, which is being conducted by the Punjab Public Service Commission, is for appointing candidates to the elite services of the State of the Punjab where the candidates are expected to take policy decisions and execute them, exercise statutory and quasijudicial powers, decide disputes and even enforce Statute, CWP No. 25413 of 2012 (O&M) 32 Rules and Regulations. They are required to be reasonable, rational, well equipped in knowledge, conversant with the laws apart from possessing the right aptitude and bent of mind etc. Keeping this in mind and the duties which the selected officials have to perform as also the responsibilities they have to take up, the reasoning, explanation and justification, as submitted by the learned Advocate General, to counter the challenge to the questions posed by the petitioners needs to be accepted as this Court is unable to come to a conclusion as to the correctness or otherwise of the questions/answers on the face of it as has been stated by the Supreme Court in Samir Gupta's case (supra) circumscribing the powers of the Courts in such like situations as in the present case.
Another aspect, which persuades this Court to not interfere in the matter is the observations of this Court in Virender Sharma's case (supra), where it has been held as follows:-
" The law, thus, can be summed up to say that the Courts cannot take on the role of examiner or the evaluator or that of the Selection Board to examine discrepancies either in the question papers or the answer sheets. Courts cannot also examine the question paper or the answer sheet itself. Obviously, if the Courts would start doing so, they would assume the role of examiner, paper setter and evaluator, which is to be left to the expert body. It is with reason and purpose that the courts are to assume the answer given in the 'key answer' CWP No. 25413 of 2012 (O&M) 33 to be correct. Any interference in this regard would tend to make them to take on the role of paper setter, which would be beyond the purview of judicial review. As is well understood, the judicial review generally speaking is not directed against a decision but is directed against the 'decision making process'. Any exercise to observe that a particular question is discrepant or the answer in the key answer is not correct, would tend to be going beyond the permissible grounds of judicial review. As observed in the case, of Public Utilities Commission of the District of Columbia vs. Pollak, (1951) 343 US 451, the judicial process demands that a judge moves within the frame work of relevant legal rules and the covenanted modes of thought for ascertaining them. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions."
That apart, in the written statement, which has been filed by the respondents, it has been clearly stated that transparency has been ensured and there has been total fairness during the conduct of the examination. The candidates have been kept updated with the process of selection, which is quite apparent from the fact that after CWP No. 25413 of 2012 (O&M) 34 the examination was held on 25.11.2012, Commission uploaded the question papers and answer keys (Set-A) of both the papers on 27.11.2012 for the information of the candidates. A Public Notice dated 29.11.2012 was issued, wherein candidates were called upon to submit their observations regarding the question papers or the answer keys to the Commission by 03.12.2012 Forenoon. These observations/queries could either be sent through post or by hand or through e-mail also. It was further intimated that the decision taken by the Commission on the observations received shall be hosted on the website of the Commission. A total of 1045 mails and 40 queries by post were received in the Commission's office till the cut off date and time. On evaluation of these, queries related to 83 questions in Paper-I and 81 questions in Paper-II were found i.e. total 164 questions. A sub-committee of the Commission was constituted to examine all these queries consisting of five members, none of whose wards or blood relations was appearing for this examination. The questions were classified into five categories i.e. (i) which were factual in nature, (ii) which were opinion based and explanation/reasoning of the paper setters was required, (iii) having minor printing/typographical error where the printing error is not altering the spirit of questions, (iv) wrong questions in which answer keys are required to be corrected and (v) questions in which answer keys are not required to be corrected. The comments of the Paper Setters/Subject Experts, wherever required on consideration of the queries, were sought. The sub-committee further had taken into consideration the independent opinion of the Subject Experts and CWP No. 25413 of 2012 (O&M) 35 wherever the committee deemed to seek another opinion in addition to the opinion given by the Paper Setters/Subject Experts, sought additional opinion to arrive at a correct conclusion.
After receiving the comments and opinions of the Paper Setters and the Subject Experts as also additional opinions, the sub- committee examined all the questions and their answers were verified further from the available answer keys, internet sources, Government websites and text books and newspapers. On consideration of all these processes, the sub-committee came to a conclusion that six questions were wrong in Paper-I, which were due to printing error/factual error and, therefore, needed to be deleted. There were discrepancies in the answer keys of three questions in Paper-I and six questions in Paper-II. Hence, the answer keys were corrected and answer sheets of the candidates evaluated accordingly. Commission issued a detailed corrigendum on 07.12.2012 specifying therein the correct position. Thereafter, the result was declared by the Commission on 07.12.2012 of all the candidates. The list of shortlisted candidates was declared on 11.12.2012 on the official website of the Commission.
It has been stated by the learned Advocate General, Punjab on the basis of the reply filed and on instructions received that all the queries/representations/observations and objections were considered earlier by the sub-committee in consultation with the Paper Setters/Subject Experts. The details of which have not been disclosed in the reply in order to maintain the confidentiality and secrecy of the examination. He has further made a statement that on CWP No. 25413 of 2012 (O&M) 36 receipt of notices in these writ petitions, all such questions and answers as pointed out by the petitioners have again been considered and gone into. Opinions of the independent experts have also been sought and on that basis Commission has come to the conclusion that there are no further discrepancies which require correction except question No. 36 in Paper-II where the answer key requires correction. The published answer is option (c) whereas it should be (a) and remedial steps shall be taken in the form of rechecking the OMR sheets of all the candidates as per corrected answer key and result revised accordingly. The material has been supplied to the Court in a sealed cover.
The produced material has been perused by this Court, which supports the stand of the Commission. The details and opinion of the subject experts are not being given herein by this Court for the simple reason that it would not be in the interest of examination process that it should be made public and the sanctity, secrecy and confidentiality of the examination is maintained.
It is relevant to mention here that neither there are any allegations of mala-fide or prejudice against Commission nor any such misdeed is revealed from the facts and circumstances as evaluated and assessed by this Court.
On considering the above steps taken by the Punjab Public Service Commission, this Court is satisfied with the necessary and timely corrective steps taken by the Commission for rectifying the mistakes, which crept in the process of the Preliminary Competitive Examination. Keeping in mind the principles, as laid CWP No. 25413 of 2012 (O&M) 37 down by the judicial precedents referred to above, this Court is not in a position to come to a conclusion with certainty with regard to the correctness or otherwise of the questions/answers, which have been highlighted by the petitioners to be incorrect and, therefore, refrains itself to interfere in the present matter.
The primary emphasis of the petitioners in the present writ petitions and the base for challenging the declared result of the preliminary competitive examination is the judgment passed by this Court in Jitender Kumar's case (supra) but the basic principles laid down therein having been complied with by the Punjab Public Service Commission would persuade this Court not to give such directions, as were given in its order dated 30.08.2012. There are certain distinctions in that case and the present one and the major being that the second paper in Jitender Kumar's case was an optional paper where different papers were opted by the different candidates although the first paper was of General Studies, which was common in all. The second question paper being different for different candidates with different and distinct discrepancies in the question paper in each subject, the Court had proceeded to interfere in the matter. The principle, which was followed by this Court while dealing with the situation where the Commission had come up with a plea that the discrepant questions were referred to the papers setters, who had supported the correct answers, was found to be erroneous on the ground that it would violate the principle of natural justice as a person cannot be a judge of its own cause and the paper setter would tend to support his question and answer key so that CWP No. 25413 of 2012 (O&M) 38 there are no adverse consequences which may follow and the Commission had merely relied upon the said opinion and response of the paper setters to deny the petitioners their right of fair answers of their objections/queries to the questions/key answers. While in the present case, not only the paper setters have been consulted and explanation sought but expert opinions and thereafter, additional expert opinions have been obtained. Above all, Commission has taken up the exercise to cross check the responses of the paper setters and subject experts by verifying the same from the available answer keys, internet sources, Government website, text books and newspapers. An independent combined opinion has been formed by the Commission to make a final decision on each question, objections, on which, have been raised by the candidates. This elaborate exercise having been gone into by the Commission and all efforts having been made by it to conduct the examination in a fair and transparent manner, the process resorted to by the Commission in making the decision cannot be faulted with, which is the permissible ground of judicial review. Any further exercise by this Court to observe that a particular question to be discrepant or the answer in the answer key is not correct, after this elaborate exercise having been gone into by the Commission would tend to go beyond the powers of judicial review of this Court.
In view of the above, I am of the considered view that the action of the respondent-Commission is in accordance with law, which does not call for any interference by this Court. Except that the answer key with regard to question no. 36 of Paper-II shall CWP No. 25413 of 2012 (O&M) 39 be corrected and OMR sheets of all the candidates re-evaluated, the revised result prepared and declared and hosted on the website of the Commission, within a period of three weeks.
These writ petitions, therefore, stand dismissed. The confidential record produced by the Advocate General, Punjab, is directed to be re-sealed and returned to Mr. Harsimran Singh Sethi, Additional Advocate General, Punjab, by the Special Secretary of this Court.
(AUGUSTINE GEORGE MASIH)
st
May 1 , 2013 JUDGE
pj
CWP No. 25413 of 2012 (O&M) 40