Central Administrative Tribunal - Delhi
Ms. Seema vs Delhi Subordinate Selection Board ... on 20 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
TA No.79/2013
Order Reserved on: 01.05.2014
Pronounced on: 20.05.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Ms. Seema
D/o Shri O.P.Singhal
R/o C-56, Subham Enclave,
Paschim Vihar, New Delhi.
..Applicant
(By Advocate: Shri Aditya Aggarwal)
Versus
1. Delhi Subordinate Selection Board (DSSSB)
Through its Chairman,
3rd Floor, UTCS Building,
Vishwas Nagar, Shahdara,
Delhi-110032.
2. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi-110006.
3. Govt. of N.C.T.
Through Chief Secretary,
New Secretariat, I.P.Estate,
New Delhi.
..Respondents
(By Advocate: Sh. K.M.Singh for respondents no.1 & 3)
O R D E R
Mr. V.N. Gaur, Member (A) This case was transferred by the Honble High Court of Delhi vide order dated 5.9.2003 in WP(C) No.657/2010.
2. The applicant in this OA was a candidate for the post of primary teachers which was advertised by Delhi Subordinate Services Selection Board (DSSSB), respondent no.1 vide advertisement nos. 07/2007 & 08/2007 on 12.09.2007 and 19.09.2007. The examination was held on 15.06.2008 and its result was published on 27.09.2008. The petitioner secured 119 marks out of 200 and was declared unsuccessful while the last successful candidate secured 120/200 marks. It is the grievance of the applicant that in the answer sheet for part II (Hindi) paper, there was a mistake committed by the evaluator in awarding marks. It has been submitted that question no.13 pertained to synonyms and one of the words for which synonym was asked was kadali. The applicant had written its synonym as kela (banana). The evaluator, however, marked it as incorrect. The applicant has produced extracts from Bhargavas Standard Illustrated Dictionary of the English Language (Anglo-Hindi Edition) which lists kadali vriksh and kele ka phal among the meanings of banana. Another dictionary Brihat Hindi Kosh mentions kela as one of the meanings of kadali and conversely in the meaning of kela it mentions ek prasidh phal vriksh kadali. The learned counsel for the applicant mentions that dictionary meaning of the word kadali indisputably shows that its meaning is not just kela vriksh but also kela fruit. The evaluator was ignorant of this aspect and marked the answer of the applicant as incorrect thereby denying her one mark. Had the candidate been awarded one more mark, she would have secured 120 out of 200 and is to the chance for final selection. The learned counsel did not press the allegation mentioned in the petition that the part-II Hindi paper was checked by non-Hindi evaluator. The learned counsel relied on a decision of Honble Supreme Court in the case titled Kanpur University and others vs. Samir Gupta, AIR 1983 SC 1230.
3. The learned counsel for the respondents on the other hand stated that there was no provision for the re-evaluation of the answer sheets. The existing instructions permit re-totaling of the marks awarded by the evaluator which is done by the senior officers of DSSSB. The marks are given to each question attempted by the candidate and there was no yardstick to assess the quality of answer given by a candidate to a subjective question. He also denied the allegation that the evaluator was ignorant of the correct answer of the question. It was submitted that the evaluator was a senior faculty of SCERT, well versed with the subject and having experience of handling evaluation work. According to the evaluator kela vriksh and not kela was the correct synonym of kadali. Referring to Samir Gupta (supra) the learned counsel stated that the question under reference was not an objective question with multiple choices which was the case in Samir Gupta. In this case neither there was a mistake on the part of the paper setter nor of the evaluator and, therefore, the aforesaid judgment in Samir Gupta (supra) was not relevant. In support of his contention that the Courts cannot direct re-evaluation of the answer sheets, if there was no provision for the same in the rules, he relied on H.P. Public Service Commissioner vs. Mukesh Thakur & Anr., CA no. 907/2006 decided on 25.5.2010.
4. We have carefully considered the submissions of the learned counsels and the case laws that have been preferred to. Before going into the issue whether the answer given by the applicant in reply to the question no.13 in part 2 of the paper was correct, we have to decide whether the re-evaluation of the answer sheets in a competitive examination can be ordered by this Tribunal. In Samir Gupta (supra) the Honble Supreme Court has held as follows:
If a paper-setter commits an error while indicating the correct answer to a question set by him, the students who answer that question correctly cannot be failed for the reason that though their answer is correct, it does not accord with the answer supplied by the paper-setter to the University as the correct answer.
It is true 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.
Where it is proved that the answer given by the students is correct and the key answer is incorrect the students are entitled to relief asked for. In case of doubt unquestionably the key answer has to be preferred. But if the matter is beyond the realm of doubt, it would be unfair to penalize the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong. We agree with the learned counsel for the respondents that the above judgment will not be relevant in this case as here there was no objective/multiple choice question or wrong key-answer supplied for evaluation. It is also an accepted fact that the rules do not have any provision for re-evaluation of answer sheets.
5. In Mukesh Thakur (supra), the Apex court has held as follows:
24. The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth etc.etc. AIR 1984 SC 1543, wherein this Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under:
"..........It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act... .....The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act........."
25. This view has been approved and relied upon and re-iterated by this Court in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, AIR 2004 SC 4116 observing as under:
"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks." (emphasis added)
26. A similar view has been reiterated in Dr. Muneeb Ul Rehman Haroon & Ors. Vs. Government of Jammu & Kashmir State & Ors. AIR 1984 SC 1585; Board of Secondary Education Vs. Pravas Ranjan Panda & Anr. (2004) 13 SCC 383; President, Board of Secondary Education, Orissa & Anr. Vs. D. Suvankar & Anr. (2007) 1 SCC 603; The Secretary, West Bengal Council of Higher Secondary Education Vs. Ayan Das & Ors. AIR 2007 SC 3098; and Sahiti & Ors. Vs. Chancellor, Dr. N.T.R. University of Health Sciences & Ors. (2009) 1 SCC 599.
27. Thus, the law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation.
6. Before transferring this matter to this Tribunal, the Honble High Court of Delhi on 02.05.2011 in WP (C) no.657/2010 and CM no.13663/2010 made the following observations:
3. It has at the outset been enquired as to whether the scope of judicial review under Article 226 would extend to the answer sheets.
4. The counsel for the petitioner relies on Kanpur University Vs. Samir Gupta AIR 1983 SC 1230 where the Supreme Court forayed into the answer sheets and finding the key answers to be wrong held that the students who answer the question correctly cannot be failed for the reason that though their answer is correct, it does not accord with the answer supplied by the paper-setter as the correct answer.
5. The counsel for the petitioner on further enquiry however admits that the question raised as aforesaid did not fall for adjudication before the Supreme Court and the Supreme Court proceeded on the premise that the power of judicial review of answer sheets exists.
6. Per contra, the counsel for the respondents has referred to the judgment dated 25th May, 2010 of the Apex Court in Civil Appeal No.907/2006 titled H.P. Public Service Commission Vs. Mukesh Thakur holding that it is not permissible for the High Court to examine the question paper and answer sheets itself and that even if there was a discrepancy in framing the question or evaluation of the answer, it would be for all the candidates appearing for the examination and not for the candidate approaching the Court only. Reference was made to the earlier judgment in Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543 holding that in the absence of a provision for re-
evaluation a direction therefor also could not be issued.
7. Reference is also made to the judgment dated 25th August, 2010 of the Division Bench of this Court in LPA No.595/2010 titled Rohit Kumar Vs. Delhi Subordinate Services Selection Board also laying down that ordinarily a Court in the absence of a statutory rule or regulation should not direct re-evaluation.
8. I am also of the opinion that the power of judicial review cannot extend over evaluation of the answers. Some mistakes are bound to creep in owing to the answer sheet being evaluated by different examiners and each examiner having hundreds if not thousands of answer sheets for evaluation within a short time. It is also felt that if such evaluation is to be done, the same should not be confined only to those knocking at the doors of the Court and there ought to be a complete re-evaluation.
7. The observation of the Honble Supreme Court and Honble High Court of Delhi quoted above leave no scope for any intervention by this court in the matter of re-evaluation of an answer script of a candidate in a competitive examination. We, therefore, do not consider it necessary to examine the question whether the answer given by the applicant was correct and whether the evaluator has committed a mistake in evaluating the same. Under these circumstances and the legal position, we find the OA devoid of merit and dismissed the same. No order as to cost.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd