Central Administrative Tribunal - Delhi
Pushpender Kumar vs Delhi Subordinate Services Selection ... on 11 January, 2012
Central Administrative Tribunal
Principal Bench
OA NO. 689/2011
MA No. 485/2011
New Delhi this the 11th day of January, 2012
Honble Mr.G.George Paracken, Member(J)
Honble Dr. Veena Chhotray, Member (A)
Inderjit Singh,
S/o Mr. Phire Ram
R/o A-13, Gabhi,
East of Kailash,
New Delhi-110065.
Sandeep Kaur,
d/o Avtar Singh
r/o WZ 406/23N, III Floor
L/S Janak Park,
Hari Nagar,
New Delhi-110064.
Basu Rawat
d/o Sate Singh Rawat
r/o 22-Type-II BTPS
Staff Colony Badarpur
New Delhi110044.
Deep Chand
s/o Ramesh Chand
r/o WZ-430 E-1, Naraina Village,
New Delhi-110028.
Urvashi Kaushik
d/o B.P.Kaushik
r/o C-8/632, Sector-8,
Rohini, Delhi-110085.
Sandeep Yadav
S/o Sh. Naresh Kumar
r/o H.No.835, Rao Mir Singh Complex,
V.P.O. Kaposhara
Sneh Lata
d/o sh. Balbir Singh
r/o H.No.649, VPO Katewara
Delhi-110039.
Geetanjali
d/o Sh. Harbeer Vats
r/o Village & P.O. Punjab Khure
Delhi-110081.
Shyam Sunder
s/o Sh. Surjeet Singh
r/o 483, Bagat Singh Park,
V.P.O. Mundka
Delhi-110041.
Amita Rani
d/o Prem Chand
r/o H.No.476, Plot No.62,
V.P.O. Mundka,
New Delhi-110041.
Ritu Sharma
d/o Sh. Om Dutt
R/o RZ 10, Prem Nagar
Phase-III, Najafgarh,
New Delhi-110043.
Ruchi Sharma
d/o Sh. Om Dutt
R/o RZ-10, Prem Nagar, Phase-3
Najafgarh,
New Delhi-43.
Vikas Chauhan
S/o Mr. Omveer Singh
H.No.100, Village Dhaka
Kingsway Camp,
Delhi-110009.
Sarita,
d/o Ranvir Singh
RZ 5, Roshan Garden,
Near Chara Mandi,
Najafgarh, Delhi.
Meena Rani
D/o Dharamvir Sharma
R/o B-279, Gali No.11
Ashok Nagar, Mandoli Road
Delhi-110093.
Sonika Gupta
D/o Mahadev Gupta
R/o X-254/8, Brahmpuri
Street No.5,
Delhi-110053.
Bhupender
S/o Sita Ram Sharma
R/o RZ01, Block K
Roshanpura Extension
Najafgarh
New Delhi-110043.
Neeraj Khari
D/o Vikram singh Khari
r/o W.P.101, Ashok Vihar
Delhi-110052.
Vikas Sharma
S/o sh. Subhash Chand
B-5/418, Nand Nagri,
Delhi-93.
Pushpender Kumar
s/o Sh. Daya Kishan
r/o H.No.458, DDA, Janta Flats,
Pul Prabhladpur
New Delhi-110044.
. Applicant
(Present: None)
Versus
Delhi Subordinate Services Selection Board
Through its Chairman,
3rd Floor, UTCS Building, Institutional Area,
Vishwas Nagar, Shahdara,
Delhi-110032.
Government of National Capital Territory of Delhi
Through Chief Secretary,
Delhi Secretariat,
I.P.Estate, New Delhi.
.. Respondents
(By Advocate: Ms. Harvinder Oberoi)
O R D E R
Honble Shri George Paracken:
This is a joint application filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 read with Rule 4 (5) (A) of CAT (Procedure) Rules, 1987 challenging the recruitment process and the manner of evaluation of the candidates in the examination held by the respondent - Delhi Subordinate Services Selection Board (DSSSB for short) pursuant to their advertisement No.02/2008 for the purpose of appointment of Teacher (Primary) in the schools of Municipal Corporation of Delhi (MCD for short).
2. Applicants have earlier approached the Honble High Court of Delhi vide WP (C) No. 11870/2009, 12271/2009 and 13753/2009. The High Court while issuing notices in those petitions has observed that the petitioners, in support of their claim, have relied upon the judgment of Apex Court in Sanjay Singh and another vs. UPPSC, 2007 (2) SCALE 1. The High Court has, therefore, ordered that appointments, if any, made against the post in question in this case shall be subject to outcome of the writ petitions. However, vide the subsequent orders dated 12.8.2010 as the jurisdiction in service matters of MCD has conferred upon this Tribunal vide notification dated 1.12.2008 in terms of Section 14 (3) of the Administrative Tribunals Act, 1985, the petitioners have withdrawn those petitions from the High Court and filed this OA. Their petitions have also been transferred to this Tribunal vide separate orders dated 12.8.2010.
3. The brief facts necessary for adjudication of this case are delineated here. Applicants were candidates for the post of Teachers (Primary) in the schools of MCD, vacancies of which have been advertised by the DSSSB vide notification dated 02/2008. The written examination was held on 15.2.2009 comprising Part-I (Objective type) and part-II (Descriptive type). The applicants have participated in the said examination. According to them, the respondents have committed serious irregularities in the recruitment process. As a result, several meritorious candidates who have very excellent academic records and who have performed very well in the main examination were shown much below in the final results. According to the applicants, they have tallied their response to the questions asked by the respondents in the examination in consultation with several books and periodicals and in consultation with each other and found that they have not been able to get good position in the result despite their good performance in the said examination. They have alleged that the respondents have not taken any step in the recruitment process for mitigating inter examiner variability which was very important factor for proper valuation of the answer books of the candidates. They have also alleged that the respondents have no fixed criteria or policy for evaluation of the answer books of the candidates and they have left it to the whims of the individual examiners who have no guidelines provided by the respondents for such evaluation which led to arbitrary and irregular marking of the candidates depending upon the individual thought process and nature of the examiners. The respondents did not provide any model answer books to the examiners for evaluation has come to the knowledge of the applicants through various sources. Their further contention is that the Respondent - DSSSB did not apply any method like scaling or moderation as applied by other agencies like Union Public Service Commission for mitigating the said Inter-examiner variability. They have also stated that DSSSB itself has admitted that they scrutinizes the documents relating to eligibility submitted by the applicants only after the final result. Therefore, the list of the candidates who passed the preliminary examination would contain the roll numbers of several such candidates who are ineligible for appointment as Primary Teacher. Similar is the case with regard to the main examination. Consequently, several eligible candidates are thrown out of the zone of consideration. The applicants have also relied upon the judgment of the Apex court in the case of Sanjay Singh and anr. (supra) wherein it has been held as under:
36. We may now summarize the position regarding scaling thus :
(i) Only certain situations warrant adoption of scaling techniques.
(ii) There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
(iv) In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.
(v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.
(vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the 'hawk-dove' effect (strict/liberal valuation).
The material placed does not disclose that the Commission or its expert committee have kept these factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications.
37. We may now refer to the decision of this Court in S. C. Dixit. The validity of scaling was considered in paras 31 to 33 of the judgment extracted below :
"31. There is a vast percentage difference in awarding of marks between each set of examiners and this was sought to be minimized by applying the scaling formula. If scaling method had not been used, only those candidates whose answer-sheets were examined by liberal examiners alone would get selected and the candidates whose answer-sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of the examiners. The counsel for the respondents could not demonstrate that the adoption of scaling system has in any way caused injustice to any meritorious candidate. If any candidate had secured higher marks in the written examination, even by applying scaling formula, he would still be benefited.
32. The Division Bench of the High Court observed that the process of scaling was done examiner-wise only and the scaling formula did not take into consideration the average of mean of all the candidates in one particular paper but took the mean of only that group of candidates which has been examined by one single examiner. The counsel for U.P. PSC submitted that the observation made by the High Court is incorrect. The scaling formula was adopted to remove the disparity in the evaluation of 14 examiners who participated in the evaluation of answer-sheets and the details have also been furnished as to how the scaling formula was adopted and applied. Therefore, we do not think that the observation of the Division Bench that the Commission did not take care of varying standards which may have been applied by different examiners but has sought to reduce the variation of the marks awarded by the same examiner to different candidates whose answer-sheets had been examined, is correct. The Division Bench was of the view that as a result of scaling, the marks of the candidates who had secured zero marks were enhanced to 18 and this was illegal and thus affected the selection process. The finding is to be understood to mean as to how the scaling system was applied. 18 marks were given notionally to a candidate who secured zero marks so as to indicate the variation in marks secured by the candidates and to fix the mean marks.
33. In that view of the matter, we do not think that the application of scaling formula to the examinations in question was either arbitrary or illegal. The selection of the candidates was done in a better way. Moreover, this formula was adopted by U.P. PSC after an expert study and in such matters, the court cannot sit in judgment and interfere with the same unless it is proved that it was an arbitrary and unreasonable exercise of power and the selection itself was done contrary to the Rules. Ultimately, the agency conducting the examination has to consider as to which method should be preferred and adopted having regard to the myriad situations that may arise before them."
48. S. C. Dixit, therefore, upheld scaling on two conclusions, namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability (differences due to evaluation by strict examiners and liberal examiners). As scaling was a recognized method to bring raw marks in different subjects to a common scale and as the Commission submitted that they introduced scaling after a scientific study by experts, this Court apparently did not want to interfere. This Court was also being conscious that any new method, when introduced, required corrections and adjustments from time to time and should not be rejected at the threshold as unworkable. But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.
4. According to them, this Tribunal has all powers to verify the process of evaluation and the irregularities committed by the respondents in terms of the aforesaid judgment. They have, therefore, stated that it was necessary to direct the respondents to show the policy documents, tabulation sheet etc. for verification of application by a fixed standard to all similarly placed candidates as in the case of Sanjay Singh and anr. (supra). They have further stated that there was big difference in the proportion of marks in the preliminary examination and the main examination and the said disparity shows that the evaluation of answer books of the main examination done manually in contrast to the preliminary examination which was evaluated by computers by using uniform standard was not proper resulting in awarding poor marks in Main examination despite the candidates concerned have scored very high marks in the preliminary examination.
5. The respondents in their reply has taken the preliminary objection that once the applicants have participated in the examination and have not qualified in it, they are estopped from raising any objections with regard to manner in which the examination was conducted, the evaluation of marks etc. at a later stage. Further, they have submitted that the present OA was filed by the applicants challenging the recruitment process of the year 2008. Even though they have withdrawn the writ petitions filed in the High Court on 12.8.2010, they have filed this application in this Tribunal only on 31.1.2011 which is after a gap of more than five months.
6. On merits, they have submitted that Part-I (preliminary examination which is objective type) is of qualifying nature and the result in the Part-II (Main examination which is descriptive type) is evaluated only in the cases of candidates who have qualified in the Part-I examination. The minimum qualifying marks for qualifying the Part-I examination is 40% for General and 30% for Reserved categories subject to number of short listed candidates being 10 times the number of vacancies or the candidates available up to the same score/marks. The result of Part-I (Objective) examination was declared on 29.5.2009 and short listed 9754 candidates for evaluation of their Part-II (Descriptive) answer sheets. The cut of marks for different categories were as under:
UR SC OBC ST PH(O) VH Ex.SM Total Vacancies 505 150 270 75 16 14 100 1000 Short Listed 5059 1535 2217 773 111 21 38 9754 Cut-off 89 68 60 73 60 60 60
7. The evaluation work was carried out by responsible officers/senior faculty from the Directorate of Education, GNCT of Delhi which is the Controlling Body providing education to the children in the NCT of Delhi. The system of checking the answer sheet was that first they were evaluated by the officers/senior faculty and then they were evaluated by a set of examiners and counter checked by separate set of examiners to avoid any mistake or disability in marking. To maintain same standard in marking of papers and in order to ensure that there is no inter-examiner variability all the examiners had to attend a workshop on the initial day to prepare the model-suggested point-wise answers to each of the questions. Same were shared by all the examiners and the evaluation work was carried out accordingly. By such a method of subjectivity in marking has been ruled out.
8. In this case, the respondents have filed their reply way back on 24.8.2011. Thereafter, this case was adjourned to 1.9.2011 to enable the applicants to file their rejoinder, if any. Again on the request of the applicants counsel further time was granted for filing the rejoinder on 28.9.2011 and adjourned the case for 1.12.2011 for final arguments today. They have not filed the rejoinder so far. Today, when the matter was listed for final hearing, it was passed over twice awaiting the learned counsel for the applicant. However, even on the second call neither the applicant nor his counsel is present. We have, therefore, heard the counsel for respondents Mrs. Harvinder Oberoi under Rule 15 of the CAT (Procedure) Rules. We have also carefully perused the entire pleadings on record. It is seen that the applicants are seeking a direction to the respondents to produce all the records relating to the recruitment process pursuant to the advertisement No.02/2008 issued by them for the purpose of appointment of Teachers (Primary) in the schools of MCD in Delhi including the answer books of the applicants in the Main examination and to verify the irregularities committed by the respondents in the evaluation of answer books. They have also sought a direction to re-examine and revaluate the arguments of answer books for irregularity exists in the evaluation process and to direct the respondents to declare them selected as Assistant Teacher (Primary), if after revaluation they get more marks. In this regard, they have primarily relied upon the judgment of Apex Court in Sanjay Singh and anr. (supra). The facts in the aforesaid case are that the petitioners therein were unsuccessful candidates who have appeared in thee examinations conducted by the Uttar Pradesh Public Service Commission for recruitment to the posts of Civil Judge (Judicial Division). The answer answer scripts relating to each subject were distributed to several examiners for valuation, as it was not possible to get the large number evaluated by a single examiner. The number of examiners, to whom the answer-scripts were distributed for valuation, were as follows : General Knowledge _ 18, Language _ 14, Law-I _ 11, Law-II _ 10, and Law-III _ 14. The marks assigned by the examiners were subjected to 'statistical scaling' and the results of written examination based on such scaled marks, were declared on 7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005 and 26.4.2005. After such interview, the Commission declared the final results of the examination on 1.5.2005 based on the aggregate of 'scaled marks' in the written (Main) examination and the marks awarded in the interview. On the recommendations made by Commission, appointments were made to 347 posts of Civil Judge, Junior Division. The petitioners contended that the statistical scaling system adopted by the Commission is illegal as it is contrary to the Uttar Pradesh Judicial Service Rules, 2001. They also contend that conversion of their raw marks into scaled marks, is illegal as it was done by applying an arbitrary, irrational and inappropriate scaling formula. It is submitted that the Commission's exercise of subjecting the marks secured by the candidates to scaling, has resulted in meritorious students being ignored, and less meritorious students being awarded higher marks and selected, thereby violating the fundamental rights of the candidates. The petitioners have requested that their petitions should be treated as being in public interest and the entire selection process in regard to Civil Judge (Junior Division) Examination, 2003 should be set aside. The Apex Court did not accept this contention and held that the Commission has acted bona fide in proceeding with the selection and neither the High Court nor the State Government had any grievance in regard to selections. In fact, the scaling system applied had the seal of approval of this Court in regard to the previous selection in S.C. Dixit (supra). The selected candidates have also been appointed and functioning as Judicial Officers. Further as noticed above, the scaling system adopted by the Commission has led to irrational and arbitrary results only in cases falling at the ends of the spectrum, and by and large did not affect the major portion of the selection. The Apex court finally held that the scaling system adopted by the Commission is unsuited in regard to Civil Judge (Junior Division) Examination and directing moderation, will be prospective in its application and will not affect the selections and appointments already made in pursuance of the 2003 Examination.
9. We have considered the facts of this case and the law laid down by the Apex Court in the case of Sanjay Singh and anr. (supra) very carefully. In the affidavit filed by the respondents- DSSSB, they have explained the procedure having been adopted by them in the evaluation of the examination. In our considered view, as in the case of UPPSC the DSSSB being an expert body for selection of candidates, it should be left to them to adopt suitable procedure to ensure fairness in selection. In the preliminary examination, it is quite possible that some candidates might have secured very high marks. In any case the applicants have no quarrel in this regard. Their main dispute is with regard to the Main examination which is descriptive in nature. According to them, the respondents have not taken necessary steps for mitigating inter-examiner variability. However, the respondents, have denied the same in the reply stating that in order to mitigate the inter-examiner variability they have conducted workshop for the examiners on the initial day and prepared model/suggested point wise answers to each of the questions. Same were shared by all the examiners before the evaluation was carried out. Thereafter, the evaluation sheets were duly counter checked by separate examiners. It is seen from the submissions of the respondents that they have adopted a procedure which according to them would ensure fairness and objectivity in assessment of the answer sheets. The main examination being descriptive, one cannot expect 100% accuracy or similarity in evaluation by various examiners but it is to mitigate any large scale disparity in evaluation the respondents have adopted a two tier evaluation system. In the first stage, a set of examiners would evaluate the answer papers and in the second stage, another set of examiners would re-check them. Then only the final marking is decided. Of course, there is always scope for further improvement in system but it cannot be held that the system which has been adopted by the respondents is totally irregular or faulty.
11. Secondly, we find merit in the contention of the respondents that after applicants have participated in the examination, they are estopped from challenging the procedure as held by the Apex Court in the cases of Madan Lal vs. State of J&K, (1995) 3 SCC 486, Mariapati Nagaraju vs. Govt. of A.P., (2007) 11 SCC 52. In Madan Lals case (supra), the Apex Court has held as under:
8.. if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the judgment in Mariapati Nagaraju (supra), again the Apex Court has held as under:
19. Appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
12. We also note that the impugned prayer of the applicant is to direct the respondents to produce all the documents relating to the recruitment process pursuant to the advertisement No.02/2008 issued by the respondents for the purpose of appointment of teachers (Primary) in the MCD schools including the answer books in the main examination and to verify the alleged irregularities committed by the respondents in the evaluation of answer books. They have also sought for re-examination/re-valuation of all the answer books. In our considered opinion, applicants are demanding a highly impractical proposition though not an impossible one.
13. In the above facts and circumstances of the case, we do not find any merit in this Original Application and accordingly the same is dismissed. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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