Central Administrative Tribunal - Delhi
Ashish Chopra vs Employees State Insurance Corporation on 19 May, 2023
1 OA No.2079/2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 2079/2019
Order reserved on: 26.04.2023
Order pronounced on: 19.05.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Mr. Ashish Chopra (Aged about 30 years)
S/o Shri D.K.Chopra,
R/o JD-17-D, SFS Flats,
Pitampura, Delhi-110034.
....Applicant
(By Advocate: Mr. D.K.Chopra)
Versus
1. The Director General,
Employees State Insurance Corporation,
ESIC Head Quarters,
Panchdeep Bhawan,
Kotla Road, New Delhi-110002.
2. Additional Commissioner &
Regional Director, Karnataka
No.10, Binnyfields, Binnypet, Tank Bund Road,
(Near Binny Mills, Next to Eta Mall)
Bengaluru-560023.
... Respondents
(By Advocate: Mr. Manish Kumar)
2 OA No.2079/2019
ORDER
By Hon'ble Manish Garg, Member (J) The applicant has filed the instant Original Application (OA) under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):
"i) Keep the Recruitment Process for selection to the post of Social Guide/Social Worker in ESIC on hold and direct the authorities of ESIC not to finalize the recruitment process till the outcome of this OA even on admission stage of this O.A. It is also prayed to quash the Impugned Order dated 22.06.2019 at (Annexure-A-1) and 08.07.2019 at (Annexure-A-2);
ii) to kindly order to the Director General ESIC to get the Answers of all the 19 questions challenged by the applicant evaluated from the experts of subject i.e. Department of Social Works/ Faculty of Social Work from any of the Government University so far as questions of social works are concerned and from the Department of Medical of Medical College relating to the questions of medical science after providing the entire details and supporting documents as mentioned in this OA relating to all the answers of 19 challenged questions;
iii) to Kindly order the Director General, ESIC to re-draw the entire marks list/merit list / List of the shortlisted candidates for the posts of social guide / social workers after taking into consideration the evaluation report of the experts concerned. In view of challenged made to 19 wrong answers declared correct by ESIC."
2. Brief facts of the case, as narrated by learned counsel for the applicants, are enumerated below:
2.1 The Employees State Insurance Corporation (ESIC) posted advertisements on 21st December, 2019 on its website, inviting applications for recruitment to various posts of 3 OA No.2079/2019 Paramedical and Nursing Staff for various ESIC Medical Education Institutions, Hospitals and Dispensaries on a regular basis by direct recruitment.
2.2 Pursuant to the above advertisement, the applicant applied through online mode for the post of Social Guide/Social Worker in Karnataka Region of ESIC, which was advertised in the name of Medical Social Worker.
2.3 Subsequently, vide corrigendum issued by ESIC its nomenclature was corrected as "Social Guide/Social Worker".
Thereafter, applicant appeared in the online examination conducted by ESIC for these posts at Delhi Centre on 27.02.2019.
2.4 ESIC uploaded the question paper along with answers, of the online examination for the posts of Social Worker/Social Guide (advertised as Medical Social Worker) held on 27.02.2019 and called for objections from the candidates, till 8th March, 2019.
2.5 The applicant submitted his objections through link provided by ESIC on their website pertaining to 22 questions, which appeared to be wrong and were declared as correct by the ESIC. He also furnished supporting evidences in respect of each of these 22 questions, which were searched and downloaded by him from various different sites of the 4 OA No.2079/2019 internet. The applicant has also given the details of the 19 questions challenged by him in para 4.6 of the OA, along with the entire questions with their respective options and answers, declared as correct by ESIC, along with supporting evidence in respect of the correctness of each and every question downloaded from various sites of the internet. 2.6 Even after submission of objections by the applicant in respect of the 19 questions challenged by him the ESIC failed to realize the gravity involved and did not rectify the gross omission committed by them.
2.7 Owing to wrong assessment/evaluation of even a single question in the competitive examination, applicant not only loses marks allocated for that question but is also awarded negative marks @ 0.25% per question, which adversely affect his ranking/position in the merit list.
2.8 In the instant case, the applicant has challenged the correctness of the answers of 19 questions. If the evaluation of these 19 answers is properly done, the applicant is likely to score around additional 16-18 marks, as a result of which his name may come up in the in the list of qualified candidates. 2.9 A number of candidates who might have secured marks from the answers which have been wrongly declared correct by ESIC may have to lose their marks substantially. As such, 5 OA No.2079/2019 the entire merit list for these posts will need to be revised consequent upon the correct evaluation of these challenged questions.
2.10 It was also urged that the question paper of the online examination for the posts of Social Guide/Social Worker mainly consisted of questions from the social works and medical science. If the evaluation of these questions under challenge in the OA is done by the subject experts concerning social works, i.e., Head of Department of Social Works of any of the Government/Central Universities and from the Dean of a Government/Central University and the Dean of a Medical College of Central or State Government in respect of the questions relating to medical science, evaluation done by any other recruiting agency would not be fool proof since such agencies do not have the faculty/experts in Technical/Professional subjects.
2.11 To uphold the majesty of law, this Tribunal may ensure fairness in selection of Social Guide/Social Worker till the outcome of the OA.
2.12 In support of his contention, the applicant has relied upon a decision of this Tribunal in OA No.843/2016 - Pratap Singh & Ors. vs. Ministry of Home Affairs, wherein the Tribunal had directed the Union Public Service 6 OA No.2079/2019 Commission to "not to declare Results of the Recruitment Process for 50 posts of Assistant Director (Official Language) ." 2.13 The applicant has also filed his written submission wherein he has relied upon a decision of the Hon‟ble Supreme Court in Sachit Kumar Singh vs. The State of Jharkhand, Civil Appeal Nos.2793-98 of 2023, decided on 28.04.2023. The relevant part of the judgment reads as follows:
"6. At the outset, it is required to be noted that the original writ petitioners applied for the post of Sub Inspector of Police. Their cases were not considered for further appointment as they were found ineligible, having failed to achieve the minimum qualifying marks. They submitted their objections with respect to nine questions and according to the original writ petitioners, answers with respect to nine questions were incorrect. The Division Bench of the High Court has refused to consider the objections on merits, mainly, on the ground that objections were raised beyond the prescribed period of submitting the objections. The High Court has noted that the objections were filed on 06.01.2018 and 08.01.2018. However, it is the case on behalf of the original writ petitioners that the first objection was submitted on 01.12.2017 the copy of which is placed on record (page 235 of SLP paper books). Therefore, the High Court ought to have considered the objections on merits and ought to have considered obtaining the expert's opinion. The High Court has as such taken too technical view and has erred in refusing to consider the objections on merits. At this stage, it is required to be noted that even if, the objections were raised on 06.01.2018 and 08.01.2018, the same were prior to the date of the declaration of result i.e., on 09.01.2018. Therefore, the High Court ought to have considered the objections on merits and/or called for the expert's opinion on nine questions of which as per the original writ petitioners, answers were incorrect. If the expert's opinion would have been taken on the correct answers and/or on the answers with respect to such nine questions for which the objections were raised, the truth would have come out.
7. Even, the High Court has materially erred in observing that no prejudice shall be caused to the original writ petitioners even if the marks would have been added with respect to such questions as the marks would be added in case of other successful candidates also. However, it is required to be noted that as the original writ petitioners failed to achieve the minimum qualifying marks by one or two marks only, therefore, if some marks would have been 7 OA No.2079/2019 added they would be achieving the minimum qualifying marks and therefore, they would have been eligible and their cases would have been considered on merits. Therefore, the High Court is not right in observing that no prejudice shall be caused to the original writ petitioners.
8. As the High Court has refused to consider the objections on merits on the ground that the objections were not raised within the stipulated period prescribed for submitting the objections and thereby, has refused to get the expert's opinion, the matter is to be remanded to the Division Bench of the High Court for fresh consideration of the appeals on merits with the observation that it will be open for the Division Bench to call for the expert's opinion on the questions of which their answers were alleged to be incorrect for which the objections were raised so that if ultimately it is found that the answers with respect to some questions were incorrect and consequently, the marks are added and they may become eligible.
9. In view of the above and for the reasons stated above, present appeals are allowed in part. The impugned common judgment and order passed by the High Court dismissing the Letters Patent Appeals is hereby quashed and set aside. Matters are remitted back to the Division Bench of the High Court for fresh decision of Letters Patent Appeals in accordance with law and on its own merits and in light of the observations made hereinabove. The Letters Patent Appeals on remand be decided and disposed of at the earliest preferably within a period of three months from the date of the present order. As observed hereinabove, it will be open for the Division Bench of the High Court to call for the expert's opinion with respect to the questions of which the answers were alleged to be incorrect for which the objections were raised. However, the same is left to the High Court. Present appeals are accordingly allowed in terms of the present order. No costs."
2.14 In view of the above, the applicant has prayed that this OA may also be decided in terms of the above order of the Hon‟ble Supreme Court.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply wherein they have vehemently opposed the claim of the applicant. The computer based tests for recruitment to different nursing and paramedical cadres in ESIC were held on 26th and 27th 8 OA No.2079/2019 February, 2019. Vide notice dated 05.03.2019 all candidates were sent a link to view the answers marked by them in computer based test and submit objections, if any, to the question paper and or answer key by 08.03.2019. The objections submitted by the candidates were examined by the Subject Management Experts (SMEs) and the answer keys were finalized accordingly before processing of results. During objection management, some questions were found to be invalid. In the combined merit list, the invalid questions were taken into consideration for final merit and the score against valid questions only is pro-rated against total 125 marks. The final answer keys along with question paper and combined merit list of all candidates for different nursing and paramedical cadres, including that of Social Guide/Social Worker, was uploaded on the website of ESIC vide notice dated 21.06.2019. The candidates finding place in select list were shortlisted for document verification before appointment.
3.1 After due examination of the question paper of the candidates, including the applicant, the result was published/displayed on the website of the respondents and vide notice dated 05.03.2019 all the candidates were sent a link to view the answers marked by them in the computer based test and submit objections, if any, to the question 9 OA No.2079/2019 paper and or answer keys and the objections received from the candidates, including the applicant, were examined by the SMEs and the answer key was finalized accordingly. 3.2 The objections submitted by the applicant in respect of 19 questions had already been examined by the SMEs during objection management, which were found invalid. It is, therefore, denied that even after submission of objections by the applicant in respect of 19 questions, ESIC failed to realize the gravity involved and did not rectify the gross omission committed in declaring the answers of those 19 questions as correct. The entire content of the answering para is not substantial but rather speculative. All the objections submitted by the applicant had already been examined by the SMEs and were found to be invalid. The respondents have prayed that the OA is liable to be dismissed being devoid of any merit.
4. The applicant has also filed rejoinder to the reply filed by the respondents, reiterating the submissions made by him in the OA and denying the averments made by the respondents in their reply.
5. We have carefully considered the rival contentions of the parties and have also gone through the pleadings on record, including the written submission filed by the applicant. 10 OA No.2079/2019 Analysis:
6. We have carefully examined the issue in hand on the touch stone of decision rendered in the case of Sachit Kumar Singh (supra).
7. We have also considered the observation referred by the applicant qua 19 questions.
8. We are not persuaded by the submissions of the learned counsel for the applicant that decision rendered in Sachit Kumar Singh (supra) be applied to the facts of the present case. We find that in the combined merit list, the invalid questions were taken into consideration for final merit and the score against valid questions only is pro-rated against the total of 125 marks. The final answer keys along with question paper and combined merit list of all candidates for different nursing and paramedical cadres, including that of Social Guide/Social Worker, was uploaded on the website of ESIC vide notice dated 21.06.2019. The candidates finding place in select list were shortlisted for document verification before appointment.
9. The objections submitted by the applicant in respect of 19 questions had already been examined by the SMEs during objection management.
11 OA No.2079/2019
10. In the case of Uttar Pradesh Public Service Commission vs. Rahul Singh decided on 14.06.2018, the Hon‟ble Apex Court in CA No.5838/2018 held as under:
"9. What is the extent and power of the Court to interfere in matters of academic nature has been the subject matter of a number of cases. We shall deal with the two main cases cited before us.
10. In Kanpur University, through Vice Chancellor and Others vs. Samir Gupta and Others, (1983) 4 SCC 309, this Court was dealing with a case relating to the Combined Pre Medical Test. Admittedly, the examination setter himself had provided the key answers and there were no committees to moderate or verify the correctness of the key answers provided by the examiner. This Court upheld the view of the Allahabad High Court that the students had proved that 3 of the key answers were wrong. Following observations of the Court are pertinent:-
"16...........We agree 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........." The Court gave further directions but we are concerned mainly with one that the State Government should devise a system for moderating the key answers furnished by the paper setters.
11. In Ran Vijay Singh and Others vs. State of Uttar Pradesh and Others, (2018) 2 SCC 357, this Court after referring to a catena of judicial pronouncements summarized the legal position in the following terms:-
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation"12 OA No.2079/2019
and only in rare or exceptional cases that a material error has been committed;
30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate--it has no expertise in the matter and academic matters are best left to academics;
30.4. The court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate." We may also refer to the following observations in Paras 31 and 32 which show why the Constitutional Courts must exercise restraint in such matters:-
"31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse -- exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to 13 OA No.2079/2019 anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
12. The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. In Kanpur University case (supra), the Court recommended a system of - (1) moderation; (2) avoiding ambiguity in the questions; (3) prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions.
13. As far as the present case is concerned even before publishing the first list of key answers the Commission had got the key answers moderated by two expert committees. Thereafter, objections were invited and a 26 member committee was constituted to verify the objections and after this exercise the Committee recommended that 5 questions be deleted and in 2 questions, key answers be changed. It can be presumed that these committees consisted of experts in various subjects for which the examinees were tested. Judges cannot take on the role of experts in academic matters. Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct.
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.
15. In view of the above discussion we are clearly of the view that the High Court over stepped its jurisdiction by giving the directions which amounted to setting aside the decision of experts in the field. As far as the objection of the appellant - Rahul Singh is concerned, after going through the question on which he raised an objection, we ourselves are of the prima facie view that the answer given by the Commission is correct."
14 OA No.2079/2019
11. We also draw reference to the recent decision passed by the Hon‟ble High Court of Delhi in Shivnath Tripathi vs. Registrar General, High Court of Delhi and another, WP (C) No.7346/2020, wherein it is held as under:
"14. The Division Bench of this Court in the aforesaid judgment, after discussing several judgments of the Supreme Court on the same matter, held that a candidate could not be penalized for answers at variance with the key only if the answer key was proven to be incorrect beyond doubt. However, it is relevant to note that according to the said judgment, an answer key cannot be disregarded as being incorrect merely on a doubt. The Court had reiterated the settled law that there is always a presumption of correctness regarding the answer key and it may be subject to judicial review only when it is "demonstrably wrong" i.e. it must be such as no reasonable body of men well-versed in the particular subject would regard it as correct."
Conclusion:
12. In view of the above, we are of the considered opinion that the instant case is squarely covered by the decision of Hon‟ble Apex Court in the case of Rahul Singh (supra). Accordingly, the present OA is dismissed.
13. Pending MA, if any, shall also stand disposed of accordingly.
14. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) „SD‟