Punjab-Haryana High Court
Savita Kumari & Another vs Board Of School Education on 25 July, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No.4738 of 2012 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: July 25, 2012
Savita Kumari & another
.....Petitioners
VERSUS
Board of School Education, Haryana, Bhiwani & another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Jagbir Malik, Advocate.
Mr.Sansar Kundu, Advocate.
Mr.Jagjeet Beniwal, Advocate.
Mr.Ashok Kumar Bana, Advocate.
Mr.B.S.Tewatia, Advocate.
Mr.Jasbir Mor, Advocate.
Mr.Minderjeet Yadav, Advocate.
Mr.Saurabh Bhardwaj, Advocate.
Mr.Ram Kumar Saini, Advocate.
Mr.Jamshed Ahmed, Advocate.
Mr.Parveen Bhardwaj, Advocate.
Mr.Surender Deswal, Advocate.
Mr.Wazir Singh, Advocate.
Mr.Sunil Kumar Bhardwaj, Advocate.
Mr.Anil Malik, Advocate.
Mr.D.R.Bansal, Advocate,
for the petitioners.
Mr.D.K.Khanna, Advocate.
Mr.G.P.S.Bal, Advocate.
****
RANJIT SINGH, J.
Perennial problem to challenge the key answers being wrong and, thus, to challenge the very result declared in such Civil Writ Petition No.4738 of 2012 (O&M) :2: eligibility examinations has again been raised in the present petitions. The petitioners are aggrieved against the questions set in the question paper on the ground that some of the these are either wrong or incorrect or out of syllabus prescribed for examination conducted by Board of School Education, Haryana for Haryana Teachers Eligibility Test, 2011 (for short" HTET). Large number of petitioners have accordingly filed these number of writ petitions with a prayer to recalculate their marks either by deleting these questions or to update the result by granting grace marks. All these candidates obviously have failed by few marks and, thus, have made the present approach.
The issue being common in these writ petition Nos.4738, 6291, 6345, 6407, 6814, 7068, 7623, 7639, 7663, 8061, 8440, 8472, 8482, 8943, 8981, 9129, 9276, 9277, 9303, 9336, 9998, 10282, 10578, 11200, 11786, 12794, 13064, 13068, 13071, 13073, 13861, 13867, of 2012, the same are being disposed of through this common order. So far as Civil Writ Petition Nos.13861 and 13867 of 2012 are concerned, notice of motion is issued in both the writ petitions and on the asking of the Court, Mr.D.K.Khanna and Mr.G.P.S.Bal, Advocates accept notice on behalf of the respondents and taken up for hearing. The facts are being taken from CWP No.4738 of 2012.
HTET-1 Category is a test which makes a person eligible for appointment as a Teacher for Class-1 to Class-V in any of the school recognized by the Department of School Education or School afflicted to the Board of School Education, Haryana. For becoming Civil Writ Petition No.4738 of 2012 (O&M) :3: eligible for appointment as Teacher for Classes VI to VIII, a person is to qualify Category-II of HTET examination. HTET Examination-2011 (Category-I and II) has been held on the basis of guidelines/ instructions, 2011 issued by the Board. These guidelines/instructions coupled with rules, regulations and instructions laid own by National Council of Teachers Education/Department of School Education, Haryana were to govern these HTET Examination 2011.
Some of the petitioners in these writ petitions were eligible for Category-I HTET Examination. This examination was conducted on 5th and 6th November, 2011. The petitioners appeared in this examination. The petitioners claim that they were shocked to see some of the questions asked in the question papers for Category-I as well as Category-II. These were either wrong or completely out of subjects and syllabus prescribed for the examination. The petitioners state to have informed the examiner, but to no avail and left with no option but to attempt the question paper.
Reference is made to some of the questions at Sr.No.121, 127, 138, 141 contained in part-V of the question paper which dealt with Environmental Studies. It is stated that these questions will fall within the area of History. One of the question would relate to Geography whereas one was related to General Knowledge. Similarly, reference is made to question No.52, 149, which relate to the subject of Hindi. In question No.52 none of the choices given is correct as per the subject of Hindi. Similarly, question No.149 mentioned in Part-I in Environmental Studies related to General Knowledge. In all answers given options are incorrect. Civil Writ Petition No.4738 of 2012 (O&M) :4: This question is also stated to be out of syllabus.
Reference is also made to some of the questions contained in category-II of HTET Examination, 2011. As per the petitiones, question No.11 contained four choices which all were wrong.
Having said so, the petitioners have averred that 60% marks were the pass marks and the petitioners are all border line cases failing by 3 marks ranging from 1 to 5. The grievance is that without passing this examination, the petitioners would not be eligible for appointment of Teacher and, thus, their career is at stake. The petitioners had earlier submitted a detailed representation. When the same was not being decided, the petitioners had approached this Court also. The petitioners, thus, have approached this court through the present writ petitions with a prayer that either these questions be deleted and petitioners be reassessed or alternatively some grace marks be allowed to the petitioners so that they can pass this examination and become eligible for appointment to the post of Teacher.
In response to a notice, Board has filed reply. By way of preliminary objection, it is pointed out that similar controversy was the subject matter of bunch of writ petitions filed by unsuccessful candidates and was dismissed by this court. Reference is made to Civil Writ Petition No.7232 of 2010 titled Jyotika Nagil and others Vs. State of Haryana & others decided on 1.12.2010. In the reply, it is then disclosed that one Anil Kumar and others filed a writ petition raising the same controversy by filing Writ Petition No.2021 of 2012, Civil Writ Petition No.4738 of 2012 (O&M) :5: which was disposed of with direction to the respondent-Board to decide their representation within two weeks. This representation had highlighted the same discrepancies, which the petitioners have raised. The petitioners in CWP No.2021 of 2012 were given personal hearing and they had prayed that these questions be got examined from the committee of the experts before taking final decision on their representation. Board had accordingly constituted the committee of experts to reexamine the discrepancies. 14 members committee of experts met on 14.3.2012 and examined all the seven questions relating to Category-II Examination and 6 questions relating to Category-I Examination. The committee after due examination has observed that there was no requirement to give any grace marks for any of the above mentioned questions. The report of the expert committee is annexed with the reply. It is accordingly pleaded that there is no cause or reason made out for interfering in the exercise of writ jurisdiction, especially so when the questions stated to be out of syllabus or containing wrong options have been got examined from a committee of experts.
When the writ petitions came up for hearing, the dispute was narrowed-down to consider the issues concerning those examinations where all the options were stated to be wrong. Such questions as per the showing of the petitioners, was one or two only. The prayer here again was to get these examined from the experts committee. The counsel for the petitioners made attempt to find faults with the option given on the basis of some text books and so it was urged that all the options given to these questions were wrong and, Civil Writ Petition No.4738 of 2012 (O&M) :6: hence, would require examination by experts or a committee.
Counsel for the Board, however, was emphatic in saying that the same exercise has already been got done and this aspect of the challenge has been considered by experts who were from independent places out of the jurisdiction of Board and so there was no need or requirement to detail another committee of experts to do the same exercise. Counsel for the respondents would urge that if this process is repeated at the request of the petitioners, who are all failed candidates, there can be no end or finality to the result. The counsel has further placed heavy reliance on the judgment passed by this court where similar prayer earlier was declined and this judgment was not put to any challenge.
This court in Jyotika Nagil case (supra) indeed had considered this question in number of writ petitions that were filed challenging the examination conducted in the year 2010. The prayer in these writ petitions was also to constitute a committee of experts to settle the issue concerning the wrong answers given in the option and for grant of grace marks. Like in the present case, the response of the Board was also similar. The Board then had also got these questions examined from the respective subject experts, who had given the report that the option given to these questions contained correct answer also. This court then had examined the scope of interference in such like cases. Number of precedents were then referred to by the court to finally hold that prayer made in the writ petitions was beyond the scope of judicial review and the directions as prayed for could not be allowed in view of the law laid down by the Civil Writ Petition No.4738 of 2012 (O&M) :7: Hon'ble Supreme Court. It was observed that it is not within the domain of this court to examine the question papers and answer sheets to notice discrepancies or inconsistencies either in setting the questions or evaluation thereof. This court had observed that the question paper as set was equally applicable to all the candidates, who appeared in the examination and no particular prejudice had been caused to any of the petitioner.
One of the questions which is highlighted by the counsel for the petitioner is relating to Hindi language. The correct answer, according to the petitioners in the NCERT book, is not one of the options given in this regard. This court certainly would not have any expertise to examine this examination in the light of options given. It is primarily the paper setter, who would know from which angle this question was asked and in this context which option is to be treated as correct. To some what similar effect are the observations of the Hon'ble Supreme Court in Kanpur University and others Vs. Samir Gupta and others, AIR 1983 Supreme Court 1230. Hon'ble Supreme Court has very aptly noticed that while deciding the case Judges of the High Court had gone into linguistic niceties and had accepted the contention of the students to the effect that there was a marked difference in English and Hindi version of some of the questions. The Supreme Court further observed that normally one would be inclined to view specially if one has been a paper setter and examiner that the key answer furnished by the paper setter and accepted by the University as correct should not be allowed to be challenged. Ultimately, it is observed that no challenge should be Civil Writ Petition No.4738 of 2012 (O&M) :8: allowed to be made to the correctness of the key answer unless on the face of it it is wrong. The relevant observations are as under:-
"We agree with 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 rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of man well-versed in the particular subject would regard as correct".
In my view, the issue now is squarely settled by a recent decision of the Hon'ble Supreme Court in the case of Himachal Pradesh Public Service Commission Versus Mukesh Thakur and another, (2010) 6 SCC 759. The ratio culled out in this case is that providing selection process is the function of statutory authority and the said process should be left to that authority. In such circumstances, the court would not transpose its' opinion so as to substitute the correct answers in the `Answer Key'. This would be binding precedent for the courts to follow. The observations made in this regard are as under:-
"The Hon'ble Supreme Court has held that court cannot take upon itself task of examiner or Selection Board and examine discrepancies and inconsistencies in the question papers and evaluation thereof. It is further observed that it is not possible for the High Court to examine question papers and answer sheets itself, particularly, when the State Public Service Commission Civil Writ Petition No.4738 of 2012 (O&M) :9: had assessed inter se merit of the candidates."
In Himachal Pradesh Public Service Commission's case (supra), the Court had formulated three basic questions for answers which are as under:-
(i) As to whether it is permissible for the court to take the task of examiner/Selection Board upon itself and examine discrepancies and inconsistencies in the question papers and evaluation thereof?
(ii) Whether the court has the power to pass a general order restraining the persons aggrieved to approach the court by filing a writ petition on any ground and depriving them of their constitutional rights to approach the court, particularly, when some other candidates had secured the same marks i.e. 89 and stood disqualified for being called for interview but could not approach the court?
(iii) Whether in the absence of any statutory provision for revaluation, the court could direct for revaluation?
After making reference to number of precedents, the Court finally held as under:-
"In view of the above, 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 there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the Civil Writ Petition No.4738 of 2012 (O&M) : 10 : examination and not for Respondent No.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course cold have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
The result of exercise done by the Board in getting these question papers and the answer keys examined from the expert was shown to the counsel appearing for the petitioners for perusal as per the directions of this Court and the case was again heard thereafter. None of the counsel then could seriously dispute the finding given by the expert committee except stating that they had referred the key options to be as appropriate answer and not that this was correct answer. The option given to the petitioners to answer these questions were to select more appropriate answers. Remaining options were found not even remotely related to the questions. Merely because some of the questions in part-V related to History would not make these questions out of syllabus. The expert committee rightly found that the question Nos.129 and 138 only required very basic knowledge to answer. The expert committee also found that Environmental Study will look both natural and social environment and in the syllabus in the above subject contents have been taken from History, Political Science, Geography and Economics.
Just to highlight the fact that it would not be appropriate Civil Writ Petition No.4738 of 2012 (O&M) : 11 : for either the experts or the court to substitute its own view to find a correct answer to the question and then to compare it with the key answer, reference can be made to question No.3 where most appropriate answer was `Ranbir Singh Hooda', who was Member of the constituent assembly. The other options were certainly not a remote possibility. This fact that Ranbir Singh Hooda is generally well known fact in this part of the region and has been so highlighted time over again. Even this option is disputed by the petitioners. Stating that, none of the answers to this question were correct. This clearly is a misconceived perception on the part of the petitioners. It would, not, therefore, be appropriate for this court to go into this challenge in view of the law laid down by this court as well as by the Hon'ble Supreme Court.
The writ petitions are accordingly dismissed.
July 25, 2012 ( RANJIT SINGH ) ramesh JUDGE