Central Administrative Tribunal - Delhi
Preeti vs Delhi Subordinate Services Selection ... on 12 November, 2021
1
OA No. 815 of 2019
With
OA No.2151 of 2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.815/2019
OA No.2151/2019
Reserved on: 26.10.2021
Pronounced on: 12.11.2021
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
OA No.815/2019
Ashish Kanchap,
Aged about 24 years
(Group-C) Primary Teacher,
S/o Krishan Kumar Kanchap,
H.No.8, Near Bus Stand VPO Katewara,
Delhi - 110 039.
...Applicant
(By Advocate: Shri Naresh Kaushik)
VERSUS
1. Govt. of NCT of Delhi
Through its Principal Secretary,
Delhi Secretariat,
Delhi.
2. Delhi Subordinate Services Selection Boards,
Through its Chairman,
FC-18, Institutional Area,
Karkardooma, Delhi-110 032.
...Respondents
(By Advocate: Shri Amit Anand)
OA No.2151/2019
1. Preeti, Aged about 29 years,
Group-B, PRT
D/o Sh. Kamlesh Kumar,
R/o H.No. 209, Krishna Apartments,
Block-J, Sector 16, Rohini,
Delhi - 110 089.
2
OA No. 815 of 2019
With
OA No.2151 of 2019
2. Anu, Aged about 28 years,
Group-B, PRT
D/o Shri Raj Singh Dahiya,
R/o VPO Sisana-II, Teh Kharkhodo,
District Sonipat.
3. Babita, aged about 28 years,
Group-B, PRT
d/o Shri Jagmander Singh,
R/o H.No. 285, Sector 23,
Sonepat.
4. Sushma, aged about 26 yeras,
Group-B, PRT
D/o Satbir,
R/o Near Indian School,
Indian Colony on Ghana Bye-pass Road,
Sonepat.
5. Sarita Kanchap, aged about 31 years,
Group-B, PRT,
D/o Sh. Krishan Kumar Kanchap,
R/o H.No.8, SadhaPanna,
Near Bus Stop,
Katewara, Delhi-39.
...Applicants
(By Advocate: Shri Naresh Kaushik)
VERSUS
1. Govt. of NCT of Delhi
Through its Principal Secretary,
Delhi Secretariat,
Delhi.
2. Delhi Subordinate Services Selection Boards,
Through its Chairman,
FC-18, Institutional Area,
Karkardooma, Delhi-110 032.
...Respondents
(By Advocate: Shri Amit Anand)
3
OA No. 815 of 2019
With
OA No.2151 of 2019
ORDER
By Hon'ble Mr. R.N. Singh, Member (J):
As common questions of law and facts are involved in both the OAs (OA No.815/2019 and OA No.2151/2019), with the consent of the learned counsels appearing for both the parties, the same were heard and are, therefore, disposed of through this common order. However, for the sake of convenience, the facts of OA No.815/2019 are being taken as a lead case.
2. The applicant has filed the instant Original Application seeking the following relief(s):-
"(i) Allow the preent Original Application;
(ii) Direct the respondent no.1 to delete the aforementioned 6 questions holding them to be incorrectly marked by the Respondent in the answer key and grant marks for the aforementioned 6 questions to the applicant, and;
(iii) Direct the Respondent no.1 to redraw the result of the applicant after adding the marks in light of clause II of the prayer, and/or;
(iv) Pass such other order or orders as are deemed fit and proper in the facts and circumstances of the case."
3. Brief facts of the case leading to filing of the leading OA are that the respondent no.1 had invited applications for recruitment of various posts, vide advertisment no.2/17 dated 07.08.2017 (Annexure A-2). The post code no.16/17 under the said advertisement was specifically meant for recruitment to the post of Primary Teachers in 4 OA No. 815 of 2019 With OA No.2151 of 2019 the Govt. of NCT of Delhi. The respondents issued a Notification dated 28.09.2017 (Annexure A-3) whereby the schedule for examination for the said Post Code for Primary Teachers was notified. The applicant submits that pursuant to the reports of Crime Branch, Delhi Police, the Lt. Governor issued Notification dated 27.12.2017 (Annexure A-4) cancelling the examination for the aforesaid post. Thereafter, respondent no.1 issued a Public Notice dated 31.05.2018 (Annexure A-5) whereby the mode of examination for the said Post Code was partially shifted to 'online' mode of examination and consequently, respondent no.1, vide advertisement no.1/18 dated 26.06.2018 (Annexure A-6), issued a fresh notification for the vacancies under Post Code 16/17 for Primary Teachers in MCD, inviting fresh applications for filling up of the said posts. The respondents issued Admit Cards to all the eligible candiates for the said examination. 3.1 The applicant has submitted that respondent no.1, vide Notification dated 30.08.2018 (Annexure A-8) published the examination schedule for the Post Code 16/17 in 'offline' mode. He further contends that despite Notification dated 31.05.2018 whereby the mode of examination, which was partially shifted to 'online' mode, 5 OA No. 815 of 2019 With OA No.2151 of 2019 the respondents scheduled the examination in 'offline' mode. It is further submitted that as per the examination schedule contained in Notification dated 30.08.2018, the examination was to be conducted in four shifts, i.e., on 30.09.2018, 13.10.2018, 14.10.2018 and 28.10.2018. The applicant herein appeared in the first shift of the examination conducted on 30.09.2018 wherein the questions in the said shift were mostly direct and traceable questions from the NIOS course booklet, whereas the questions in the subsequent shifts held on 13th, 14th and 28th October, 2018 were repeated from earlier shifts giving advantage to the candidates appearing in the subsequent shifts of the examination. It is also submitted that the Delhi Subordinate Services Selection Board (hereinafter referred to as 'DSSSB'), issued the answer keys of the first shift examination by e-challan mode, vide Notice dated 17.10.2018 (Annexure A-9). The applicant, while checking the answer keys and matching the answers attempted by him, found that six questions and their respective answers were wrongly marked in the answer keys. The applicant after verifying the answers to those six questions in the NIOS course booklet and other NCERT text books, immediately challenged the same on 21.10.2018 as per the directions stipulated in the Notice 6 OA No. 815 of 2019 With OA No.2151 of 2019 dated 17.10.2018. The applicant has submitted that the reply of the respondents dated 05.12.2018 (Annexure A-
11) through online mode to the online application registration system challenging the questions in the examination was erroneous and without any basis whereby they had rejected the challenge to the answers made by him. Aggrieved by the said rejection, the applicant had filed an application dated 22.01.2019 (Annexure A-12) filed under RTI Act seeking information with regard to the Members of the Board who finalized the provisional and final answer keys, which is yet to be responded to by the respondents.
3.2 It is submitted by the applicant that the action of the respondents of incorrect evaluation of six questions in the answer keys has caused serious prejudice to him as the same is in gross violation of fundamental rights as guaranteed by the Consituttion of India under Articles 14, 16 and 21.
4. Per contra, the respondents have filed the counter affidavit opposing the claim of the applicant and with the assitance of the counter reply, Sh. Anand, learned counsel for the respondents, has submitted that the respondent no.2 advertized vacancies of Teachers (Primary) under the 7 OA No. 815 of 2019 With OA No.2151 of 2019 Post Codes 16/17 and 1/18 and conducted objective examination in four batches commencing from 30/09/2018. The respondent no.2, vide Notices dated 17.10.2018, 30.10.2018, 31.10.2018 and 05.11.2018 uploaded the draft answer keys of the questions in respect of master set of question papers on its website and invited objections thereon. After considering the objections received from the candidates, final answer keys were issued, vide notices dated 4.12.2018 and 11.12.2018 respectively. After the conduct of the examination, it came to the notice of the respondent no.2 that certain questions were repeated in the said examination and accordingly, the matter was considered by the respondent no.2 and on finding that the questions were either exact replica or had similar wordings with same options in different batches, the same were deleted and a notice in this regard was published, vide notice dated 01.02.2019 (Annexure R-2). After finalization of the answer keys, OMR of answer sheets of all the candidates were evaluated through a computerized system and therafter, as per the marks obtained by them, a final merit list was prepared and the result thereof was declared, vide notice dated 28.03.2019. 8 OA No. 815 of 2019
With OA No.2151 of 2019
5. The applicant has also filed rejoinder in which he has denied the averments of the respondents in the counter reply and reiterated the pleas taken in the OA.
6. We have heard Sh. Naresh Kaushik, learned counsel for the applicant and Sh. Amit Anand, learned counsel for the respondents.
7. Sh. Naresh Kaushik, learned counsel for the applicant, at the very outset, has submitted that the instant OA was earlier dismissed by this Tribunal, vide order dated 12.03.2019. Aggrieved by the said decision, the applicant had challenged the same before the Hon'ble High Court of Delhi by way of WP(C) No.4418/2019. The Hon'ble High Court, vide judgment dated 29.04.2019, while setting aside the decision of the Tribunal dated 12.03.2019, remanded the instant matter to this Tribunal for consideriation on merit, observing as under:-
"2. The petitioner assails the order dated 12.03.2019 passed by Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 815/2019. The learned Tribunal has rejected the petitioner‟s Original Application, wherein his grievance was that in relation to six questions posed in the examination for the post of Primary Teachers in the Govt. of NCT of Delhi vide Advertisement No. 02/2017 (post code No. 16/17), the answer key issued by the respondent in relation to part „A‟ question paper of the examination conducted on 30.09.2018, was incorrect. In the original application, the petitioner specifically set out the said six questions; the key answers, and; the answers which, according to him, were correct. The relief sought in the Original Application were the following:9 OA No. 815 of 2019
With OA No.2151 of 2019 "I. Allow the present Original Application.
II. Direct the Respondent No. 1 to delete the aforementioned 6 questions holding them to be incorrectly marked by the Respondent in the answer key and grant marks for the abovementioned 6 Questions to the Applicant, and;
III. Direct the Respondent No. 1 to redraw the result of the Applicant after adding the marks in light of clause II of the prayer, and/or;
IV. Pass such other order or orders as are deemed fit and proper in the facts and circumstances of the case."
3. While rejecting the Original Application, the Tribunal takes note of the prayer made in paragraph (II) and (III) quoted hereinabove. The Tribunal also takes note of the relief that the result by redrawn after adding six marks.
4. The reason why the Tribunal has rejected the Original Application is found in paragraph 5 of the impugned order, which reads as follows:
"5.The relief claimed in the OA is in fact objectionable. The nature of relief claimed by the applicant can be considered, if only, a declaration to the effect that the questions objected to by him were not properly framed or that the answer keys were not correct. Without seeking such a declaration, the applicant straightaway claimed for addition of marks to him. Secondly, in all fairness to the candidates, the respondents published a draft key inviting objections. The applicant raised objections to six questions and through an order dated 05.12.2018, they rejected the same. The applicant did not choose to challenge the said order."
5. We are afraid, we cannot agree with the reasoning, or the approach of the Tribunal. The reason for rejection of the Original Application is that the petitioner had not sought a declaration to the effect that the questions objected to by him, were not properly framed, or that the answer keys were not correct. The Tribunal is of the view that without seeking such a declaration, the petitioner/ applicant could not have straight away claimed addition of marks to him. The other ground on which the Tribunal rejected the Original Application was that the petitioner‟s objection to the model answer key was rejected on 05.12.2018, and the petitioner has not assailed the same.
6. The Tribunal, in our view, has taken a hyper-technical approach in the matter. The petitioner has set out in the Original Application itself, detailed grounds as to why, according to him, answer key in relation to six questions was incorrect. The relevant grounds set out in the Original Application are the following:
10OA No. 815 of 2019
With OA No.2151 of 2019 "E. Because in Question No. 75 of Question Booklet A, the question was what is the opposite gender of tiger (Baagh) called? The options were as mentioned below:
(A) Baaghi, (B) Baghani, (C) Baghni, (D) Baghini It is pertinent to mention herein that the correct answer as per the answer key by the Respondents is "C". However, as per the NCERT Class 5 Hindi Textbook, Chapter 14 titled as "Baagh Aaya" at page No. 113, the opposite gender of Baagh is "Baghin". Further, as per the DSSSB TGT Hindi Paper Series JDD 40 TGT Hindi X 14 Set A, Question No. 73, the correct answer is Baghin.
Therefore, this clearly showcases that Question No. 75 has been incorrectly marked by the Respondents.
F. Because Question No. 133 in the Question Booklet A sought to as "A language used primarily in our home, chool and societal environment for communication is called?" and the options given are as under:
(A) Mother Tongue, (B) First Language, (C) Home Language, (D) None of the Above It is humbly submitted that the as per the answer key provided by the Respondents, the correct answer is (B), however, as per the NCT 2005, Chapter 3, sub topic 3.1.2 at page No. 37, it is clearly mentioned that Home, First Language(s) or mother tongue language are all the same or one and that there is no difference as they are synonyms.
Therefore, the correct answer should be multiple, i.e. option (A), (B) and (C).
G. Because Question No. 134 of the Question Booklet A was "What is the full form of CCE?" and the options given were as under:
(A) Continuous and Comprehensive Education (B) Child Care Enforcement (C) Child Centric Education (D) Child Care Education It is submitted that as per the answer key, the correct answer to the aforesaid question is option (C), however, as per the NIOS Block 2 (510), at page number 54, CCE stands for Continuous Comprehensive Education. Thereby, clearly the answer provided by the Respondent in the answer key is incorrect as the correct answer shall be option (A), i.e., Continuous Comprehensive Education.
H. Because Question No. 141 was "The teaching of ______ develops ethical values in the learners." and the options given in the Question paper were as under: 11 OA No. 815 of 2019
With OA No.2151 of 2019 (A) Sociology, (B) History, (C) Civics, (D) Economics.
It is humbly submitted that the correct answer as per the answer key by the Respondent is option (B), i.e., History. However, as per the NCF 2005, Chapter 3, Sub Topic 3.4 at page No. 58, it is stipulated that "Samajik Vigyan" which translates in English to "Sociology", develops ethical values in learners. Therefore, clearly showcasing that the evaluation done by the Respondents in the said Question is incorrect as the correct answer is option (A), i.e., Sociology.
I. Because Question no. 181 was "The purpose of _______ is to mobilize the resources of the child and make energy available for activity in order to meet the new situation." and the options given in the answer key were as under:
(A) Pressure, (B) Tension, (C) Motivation, (D) Aggression It is submitted that the answer as per the answer key was option (B), i.e., Tension however, as per the NCERT class 11 textbook of Psychology, Chapter 6 at page no. 129, it is clearly mentioned that the purpose of Motivation is to mobilize the resources of the child and make energy available for the activity in order to meet the new situation.
J. Because Question No. 184 was "The direction of development is _____" and the options given in the question paper were as under:
(A) Cephalo-caudal, (B) Proximo-distal, (C) Both (A) and (B), (D) None of the above.
It is submitted that the answer as per the answer key is (B), i.e., Proximo-distal. However, as per the NCERT textbook of class 11 on the subject of psychology, in chapter 4 at page no. 74 as well as in the NIOS booklet, Block 1 (506), chapter 1, at page no. 3, it is mentioned that the direction of development is Cephalo- caudal as well as Proximo-Distal. Therefore, the correct answer is option (C), i.e., both (A) and (B)."
7. The petitioner was not obliged to independently seek "declaration", inter alia, that the answer keys were not correct. The relief that he sought was premised on the submission that the answer key was not correct and, therefore, the relief of "declaration" was implicit by the relief that he had sought. Secondly, merely because the petitioner had not challenged the order dated 05.12.2018, was no reason to reject the Original Application when the said rejection was mechanical. Pertinently, the order dated 05.12.2018 - rejecting the petitioner‟s objections to the model key answers, was completely unreasoned and it only tabulated the petitioner‟s objection and disclosed the "challenge status" as "rejected". The Tribunal is not bound by strict rules of procedure contained 12 OA No. 815 of 2019 With OA No.2151 of 2019 in the Code of Civil Procedure (Section 22(1) of the Administrative Tribunals Act, 1985). It proceedings are guided by the principles of natural justice. The CAT (Procedure) Rules, 1987 also do not contain any rule which could justify the rejection of the Original Application on the grounds disclosed in the impugned order.
8. We are conscious of the fact that the remand of cases by this Court to the Tribunal leads to burdening of the docket of the Tribunal. However, in such like situations, that is the only course left open to us to adopt, since, it is the Tribunal‟s responsibility and jurisdiction to examine the claims/ disputes on merits in the first instance.
9. We, therefore, set aside the impugned order and remand the Original Application back to the Tribunal for consideration on merits. Since the Original Application, apparently, was rejected even without notice to the respondents, we issue notice to the respondents in the Original Application, and the respondents may file their response within four weeks.
10. The parties shall appear before the Tribunal on 30.05.2019.
11. The petition stands disposed of in the aforesaid terms."
8. Learned counsel for the applicant has taken a number of grounds in support of the claim of the applicant but has mainly relied upon the decision of this Tribunal in the matter of Harish Kumar vs. DSSSB & Anr. etc.etc.(OA No.580/2019 and batch decided on 14.03.2019) stating that the issue involved in the present OA, which is the subject matter of the aforesaid relied upon order/judgment of the Tribunal, has already been adjudicated upon by the coordinate Bench in several other OAs filed before this Tribunal. He has further submitted that the continued depravation of rights and benefits due to the aplicant is not only, inter alia, arbitrary and 13 OA No. 815 of 2019 With OA No.2151 of 2019 discriminatory, but also is not in accordance with the very spirit and tenor of the issues involved in the present lis, which is squarely covered by the final order/judgment passed by the Tribunal in Harish Kumar (supra). Learned counsel for the applicant has, therefore, prayed for extension of the benefits of the aforesaid order/judgment of the Tribunal to the applicant(s) herein also. However, for the sake of brevity, paras 7 and the directions given by the Tribunal in para 11 in Harish Kumar (supra) are reproduced below:-
"7. Normally in matters of this nature, where the final key is published after inviting objections, the Tribunal is reluctant to interfere. What prompted us to examine these matters in some detail is that in respect of question No.119, an inadvertent spelling mistake that has crept into these answers was also not noticed by the team of experts. The question and the multiple answers read as under:-
"119. Identify which of the following terms does not describe a type of wound?
(A) Infused (B) Incised (C) Confused (D) Puncture"
xxx xxx xxx xxx
11. Having regard to the facts and circumstances of the cases, we dispose of these O.As. by directing that:
a) the respondents shall take immediate steps to refer the answers in the final key in respect of question Nos.
44, 119, 182, 183 & 200, for the examination conducted for selection to the post of Physical Education Teacher with Post Code No.90/17 to experts forthwith, with a specific direction that a report or opinion in this behalf shall be furnished, within one week,
b) further steps in the process of selection shall be taken soon after the opinion is obtained, as indicated above.
c) under no circumstances, the steps indicated in this order shall be treated or construed as an impediment for 14 OA No. 815 of 2019 With OA No.2151 of 2019 implementation of the directions issued by the High Court."
9. The learned counsel for the applicant has referred and relied upon a order/judgment of the Hon'ble High Court of Delhi in the case of Sahil Maheshwari vs. High Court of Delhi & Anr., reported in 2014 (145) DRJ 225, to contend that in a system of multiple choice questions - type test, care must be taken to see that questions having ambigious answers shall not be set. In this regard, he refers to para 18 of this order/judgment, which reads as under:-
"18. ... Fourthly, in a system of 'Multiple Choice Objective- type test', care must be taken to see that questions having an ambiguous import are not set in the papers. That kind of system of examination involves merely the tick-marking of the correct answer. It leaves no scope for reasoning or argument. The answer is 'yes' or 'no'. That is why the questions have to be clear and unequivocal."
10. Mr. Kaushik, learned counsel for the applicant has further placed reliance upon a judgment of Hon'ble Delhi High Court in Sumit Kumar vs. High Court of Delhi [WP(C) No.3453 of 2016 reported as 2016 (232) DLT 504], to contend that when the court is convinced that the answers key is demonstrably wrong in the opinion of a reasonable body of persons, well-versed with the subject, judicial review is 15 OA No. 815 of 2019 With OA No.2151 of 2019 permissible and that in case where the answer key is incorrect or more than one key to the answer could be correct, the candidates should not be penalized for answers at variance with the key. Para 9 of the judgment of the Hon'ble High Court reads as under:-
"9. We have to apply the aforesaid standard or test when we examine the contentions of the two petitioners. In other words, only when we are convinced that the answer key is "demonstrably wrong" in the opinion of a reasonable body of persons well-versed with the subject, will it be permissible to exercise power of judicial review. Albeit, in cases where the answer key is indeed incorrect or more than one key to the answer could be correct, the candidates should not be penalized for answers at variance with the key. The expression "demonstrably wrong" and the clapham omnibus standard or test on the second aspect (i.e. more than one correct key) is noticeably the corner stone of the said principle. While applying the said test, the Court should keep in mind that the answer key should be presumed as correct and should not be treated as incorrect on mere doubt."
11. Learned counsel for the applicant has also relied upon judgment dated 30.01.2019 of Hon'ble High Court of Delhi in WP(C) No. 963/2019 titled as Anjali Goswami & Ors. vs. Registrar General, Delhi High Court, paragraph 33 to 35 whereof read as under:-
"33. Thus, all those candidates, who have marked option (1) as the correct answer, as well as those candidates who have marked option (4) as the correct answer for the said question, should be awarded 1 mark.
34. The respondent should re-draw the result of the preliminary examination after taking into account the decision arrived at by the Examination-Cum-Judicial Education and Training Programme Committee in its 16 OA No. 815 of 2019 With OA No.2151 of 2019 meeting held on 29.01.2019, which has been approved by the Hon'ble The Chief Justice, as well as in the light of our present decision before proceeding to hold the main examination.
35. If, as a consequence of the aforesaid exercise, any of the petitioners meet the eligibility for being permitted to take the main examination and they also rank within the 10 times number of vacancies advertised, they should be permitted to do so."
12. In rebuttal, Shri Anand, learned counsel for the respondents has vehemently argued that the applicant is not entitled to the reliefs prayed for on the basis of the decision of the Tribunal in Harish Kumar (supra), as the same has been stayed by the Hon'ble High Court of Delhi, which fact has already been taken on record by the Tribunal in its order dated 23.07.2021. Learned counsel for the respondents has, however, relied upon the decision of the Hon'ble Apex Court in the matter of U.P.P.S.C., Through its Chairman & Anr. vs. Rahul Singh & Anr. [Civil Appeal No.5838/2018 decided on 14.06.2018], relevant portions whereof are reproduced hereunder:-
"6. It is not disputed before us that the Commission initially constituted two separate expert committees; one comprising of 15 experts and the other comprising of 18 experts. This was done even before the key answers were displayed on the official website of the Commission. After these two committees gave their expert opinion the key answers were uploaded on the official website of the Commission during the period 18.11.2017 to 23.11.2017. Objections to the key answers were to be submitted by 24.11.2017.17 OA No. 815 of 2019
With OA No.2151 of 2019
7. The Commission received 962 objections. The Commission constituted a committee consisting of 26 members to consider the objections raised by the candidates. This 26 member expert committee examined all the objections over a period of two days and, thereafter, on the basis of the recommendations of this committee 5 questions were deleted and the key answers of 2 questions were changed. As a consequence the result was declared on the basis of 145 questions. Thereafter, various candidates filed writ petitions in the Allahabad High Court wherein challenge was raised to the correctness of the key answers in respect of 14 questions. The High Court examined these questions and after elaborate discussion and reasoning negatived the prayer of the petitioners in respect of 11 questions but in respect of one question the High Court held that the question should be deleted; in respect of another question it held that there were two correct answers and in respect of one more question it disagreed with the view of the Commission and accepted the submission of the petitioners that the answer given in the key was incorrect. This judgment is under challenge in these appeals.
8. In the appeal filed by the Commission it has been urged that the High Court transgressed its jurisdiction and went beyond the scope of judicial review available in such cases and it should not have overruled the view of the Commission which was based on the report of two committees of experts. On the other hand one of the original writ petitioners in his appeal claims that as far as the question where the High Court has held more than one answer is correct, the same should be deleted and in respect of another question it is urged that the High Court wrongly accepted the answer of the Commission.
14. In the present case we find that all the 3 questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts."
13. Learned counsel for the respondents relied on another decision of the Hon'ble Apex Court in H.P. Public Service Commission vs. Mukesh Thakur & Anr. [Civil 18 OA No. 815 of 2019 With OA No.2151 of 2019 Appeal No.907/2006 decided on 25.05.2010], the relevant portion whereof is reproduced hereunder:-
"12. In the facts and circumstances of the aforesaid case, three basic questions arise for consideration of this Court:-
(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 questions paper and valuation thereof.
(ii) Whether 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 from 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 absence of any statutory provision for revaluation, the court could direct for revaluation.
The Hon'ble Apex Court, while discussing various decisions on the subject, held as under:-
"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 19 OA No. 815 of 2019 With OA No.2151 of 2019 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."
14. Learned counsel for the respondents also relied upon the decision of the Hon'ble Apex Court in the matter of Ran Vijay Singh & Ors. vs. State of U.P. & Ors [Civil 20 OA No. 815 of 2019 With OA No.2151 of 2019 Appeal No.367/2017 with connected matters decided on 11.12.2017] wherein, after discussion and taking into account all the possibilities that might arise, issued the following directions:-
"37. As a result of our discussion and taking into consideration all the possibilities that might arise, we issue the following directions:
(1) The results prepared by the Board consequent upon the decision dated 2nd November, 2015 of the High Court should be declared by the Board within two weeks from today.
(2) Candidates appointed and working as Trained Graduate Teachers pursuant to the declaration of results on the earlier occasions, if found unsuccessful on the third declaration of results, should not be removed from service but should be allowed to continue.
(3) Candidates now selected for appointment as Trained Graduate Teachers (after the third declaration of results) should be appointed by the State by creating supernumerary posts. However, these newly appointed Trained Graduate Teachers will not be entitled to any consequential benefits.
38. Before concluding, we must express our deep anguish with the turn of events whereby the learned Single Judge entertained a batch of writ petitions, out of which these appeals have arisen, even though several similar writ petitions had earlier been dismissed by other learned Single Judge(s). Respect for the view taken by a coordinate Bench is an essential element of judicial discipline. A judge might have a difference of opinion with another judge, but that does not give him or her any right to ignore the contrary view. In the event of a difference of opinion, the procedure sanctified by time must be adhered to so that there is demonstrated respect for the rule of law.
15. Lastly, the learned counsel for the respondents relied upon the decision of the Hon'ble High Court of Madhya Pradesh in the matter of Nikita Verma vs. State of M.P. & Anr. [Writ Petition No.12717/2018 decided on 21 OA No. 815 of 2019 With OA No.2151 of 2019 13.07.2018]. In the aforesaid decision, the Hon'ble High Court of Madhya Pradesh took note of the judgment passed by the coordinate Bench and of the Full Bench in the matter of Nitin Pathak vs. State of M.P. and others passed in WA No.581/2017, which portions are very relevant and, therefore, are being reproduced hereunder:-
"The judgment passed by the Coordinate Bench in W.P.Nos.7089/2018, 7176/2018 and 8140/2018 is reproduced below:
"The law in this regard is well settled that in the matter of "The opinion of experts in academic matters, the Courts do not sit in appeal as the judicial review is of the decision making process and not of the decision."
The full Bench in the matter of Nitin Pathak Vs. State of M.P. and others passed in WA No.581/2017 has taken note of earlier judgments of the point and has held us under:-
"14. We have heard learned counsel for the parties.
15. Learned counsel for the appellant could not refer to any judgment of the Hon'ble Supreme Court wherein the Court has interfered with the model answer key on the basis of opinion of a Court appointed Expert. However, it is argued that in terms of Section 45 of the Evidence Act and the provisions of Order 26 Rule 10A of CPC and also in exercise of inherent writ jurisdiction of this court, to do complete justice, this Court has jurisdiction to appoint an Expert and direct the Commission to re- tabulate result on the basis of opinion of such Expert. As mentioned above, the appellant derives support in Samir Gupta's case."
The Hon'ble High Court of Madhya Pradesh in the matter of Nikita Verma (supra) has finally concluded as under:-
"28. The scope of interference in academic matters has been examined by the Supreme Court in many cases. In Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372 : (2010) 2 SCC (L&S) 640, the Court held as under:-22 OA No. 815 of 2019
With OA No.2151 of 2019 "38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fides have been alleged against the experts constituting the Selection Committee.
It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realise and appreciate its constraints and limitations in academic matters.
29. Supreme Court in another judgment reported as University Grants Commission v. Neha Anil Bobde, (2013) 10 SCC 519, held that in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the experts the Court. The Court held as under:
"31. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491;
Tariq Islam v. Aligarh Muslim University (2001) 8 SCC 546; and, Rajbir Singh Dalal v. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the court shall not generally sit in appeal over the opinion expressed by the expert academic bodies and normally it is wise and safe for the courts to leave the decision of the academic experts who are more familiar with the problem they face, than the courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the university. For attaining the said standards, it is open to UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is, for maintenance of standards of teaching, examination and research. The candidates declared eligible for Lectureship may be considered for appointment as Assistant Professors in universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India."23 OA No. 815 of 2019
With OA No.2151 of 2019
30. Thus, we are of the opinion that the judgment of this Court in Chanchal Modi's case (supra) does not lay down correct law.
31. In view of the discussion above, we hold that in exercise of power of Judicial Review, the Court should not refer the matter to court appointed expert as the courts have a very limited role particularly when no mala fides have been alleged against the experts constituted to finalize answer key. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts.
32. In respect of the second question, this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power. Hence, the issue which the petitioners are raising before this Court has already been settled by the full Bench against the petitioners."
16. A short affidavit on behalf of respondent no.2-DSSSB has been filed in view of the order dated 16.09.2021 of the Tribunal and it is contended therein that respondent no.2 vide Notice dated 17.10.2018 invited objections from the candidates in respect of post of Primary Teachers (Post Codes 1/18 and 16/17) and the objections received during the period 17.10.2018 to 22.10.2018 in respect of 52 questions, including the questions which have been challenged by the applicant, as having erroneous answers key as per applicants, were explained to the experts through confidential email and in respect of 7 questions i.e. question nos. 1,12, 25, 42, 130, 138 and 188, the experts have accepted, the objections and the final answers key was issued by the respondents vide Notice 24 OA No. 815 of 2019 With OA No.2151 of 2019 dated 04.12.2018. Mr. Anand, learned counsel for the respondents, has argued that once the objections of the applicants have been considered by the respondents, interference of this Tribunal in the matter, while exercising jurisdiction of judicial review is not permissible, in view of the law laid down on the subject and referred and relied upon by him. It is contended by the learned counsel for the respondents that the judgment of this Tribunal in Harish Kumar (supra) is under challenge before the Hon'ble High Court of Delhi and the same has been stayed by the Hon'ble High Court. However, it is an admitted fact that the said order/judgment has not been set aside by the Hon'ble High Court and/or by the Hon'ble Supreme Court.
17. Learned counsel for the applicant Mr. Kaushik in rejoinder has reiterated his submissions and precisely noted hereinabove. He has submitted that ordinarily this Tribunal and/or Court will not be justified to interfere into the policy decision of the respondents, opinion of the experts and evaluation done by the experts, however, in view of the judgment of the Hon'ble High Court of Delhi, referred and relied upon by him, precisely noted hereinabove, and the judgment of the coordinate Bench of 25 OA No. 815 of 2019 With OA No.2151 of 2019 this Tribunal in Harish Kumar (supra) related to the same examination, if a mistake which has crept into the answers was not even noticed by the team of experts, the interference by this Tribunal is justified and warranted. He has reiterated that in view of the law settled by the Hon'ble High Court of Delhi in Sahil Maheshwari (supra), if the questions are set having ambiguous answers, the interference of this Tribunal would be warranted and justified, if the answers key is demonstrably wrong in view of the judgment of the Hon'ble High Court of Delhi in Sumit Kumar (supra). He has further added with the assistance of ground taken in para (E) of the Original Application that correct answers as per the answers key of the respondents to question No.75, i.e., opposite gender of 'Tiger' (Baagh) is 'Baghni' (C), however as per NCERT Class-5 Hindi Textbook, Chapter- 14 titled as 'Baagh Aaya' at page no.113, the opposite gender of Baagh is 'Baghin'. Moreover, he has also added as per the TGT Hindi Paper Series JDD 40 TGT Hindi X 14 Set A, question no.73, the correct answer is 'Baghin'. He has submitted that even if answer 'C', i.e., 'Baghni' is based on some text book in the opinion of the experts, however, the answer provided by the NCERT textbook under reference cannot be ignored nor the answer 26 OA No. 815 of 2019 With OA No.2151 of 2019 provided by the DSSSB itself or the PGT Hindi paper under reference can be ignored. The same gives rise to a conclusion that answer to question no.5, i.e., opposite gender of Tiger (Baagh) multiple answers are there for the question no.75, i.e., opposite gender of Tiger (Baagh).
18. We have perused the pleadings on record, including the short affidavit filed by respondent no.2, i.e., DSSSB in view of the order/liberty granted to them by the Tribunal vide order dated 16.09.2021 as well as documents annexed therewith. However, we find that the objections raised by the applicants and particularly demonstrated in the present OAs have not either been considered even by the experts and or no reason has been given by the respondents and/or the experts why the questions are having multiple answers as evident from the text book(s) including the Government publications and/or the material accepted and circulated by the respondents themselves.
19. Learned counsel for the respondents Mr. Anand has also argued that the selection process is over and at this juncture interference by this Tribunal may unsettle the settled things. However, he has not disputed that vide a common judgment dated 14.03.2019 a coordinate Bench 27 OA No. 815 of 2019 With OA No.2151 of 2019 of this Tribunal in the case of Harish Kumar (supra) has issued directions to the respondents, as noted hereinabove, and in compliance of the same, the revised marks have been allotted vide notice dated 23.04.2019 (Annexure4 A-2 to MA No.1119/2021). Moreover, it is also an admitted fact that while considering objection(s) in respect of 52 questions, objections have been accepted by the respondents in respect of 07 questions and the result was revised by them vide order dated 04.12.2018 and further objections in respect of a few questions have been considered by the respondents in view of the judgment of this Tribunal in Harish Kumar (supra) and revised marks have been notified vide order dated 23.04.2019. This also shows that though the matter pertains to the expert(s), however, mistakes have been found and if those mistakes can be looked into, it is expected that the mistakes pointed by the applicants also deserved to be looked into by the experts and remedial action is required to be taken by the respondents so that the applicants should not suffer for no fault attributable to them.
20. In view of the aforesaid facts and circumstances, the judgment of this Tribunal in Harish Kumar (supra) and the law settled by the Hon'ble High Court of Delhi in 28 OA No. 815 of 2019 With OA No.2151 of 2019 various cases, referred to hereinabove, we are of the considered view that the objections raised by the applicants in respect of question nos.75, 118, 130, 133, 134, 141, 144, 181, 184 and 192 are required to be re- visited by the respondents through the experts.
21. Accordingly, the present OAs are disposed of with the following directions:
i) The respondents shall refer the answers in the final keys in respect of question nos.75, 118, 130, 133, 134, 141, 144, 181, 184 and 192 for examination conducted for the posts of Teachers (Primary) under the Post Codes 16/17 and 1/18 to the experts forthwith with a specific direction that a report or opinion after considering the objections raised by the applicants in this regard shall be furnished within 10 days.
ii) Further steps shall be taken by the respondents in process of selection if required by revising the results by the respondents on receipt of report/opinion of the experts, as indicated above.
iii) Under no circumstances, the steps indicated in this order shall be treated or construed as an impediment for implementation of directions of the Hon'ble High Court and or any High Court on the subject.29 OA No. 815 of 2019
With OA No.2151 of 2019
22. The OAs are disposed of in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.
23. Let a copy of this order shall also be kept in OA No.2151/2019.
24. Court Officer is directed to return the documents furnished by the respondents to their counsel under proper receipt.
(R.N. Singh) (A.K. Bishnoi) Member(J) Member (A) 'San.'