Central Administrative Tribunal - Delhi
Mahesh Kumar vs Govt. Of Nctd on 2 February, 2018
Central Administrative Tribunal
Principal Bench
OA No.2441/2017
Reserved on : 16.01.2018
Pronounced on: 02.02.2018
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K.N. Shrivastava, Member (A)
Mahesh Kumar
S/o Shri Neki Ram
Aged about 34 years,
R/o C-32, J. J.Colony,
Sector-7, Dwarka,
New Delhi-75
Presently employed Teacher
Under the Govt. of NCT of Delhi. ..... Applicant.
(By Advocate, Shri Ranjit Sharma)
Vs.
1. Govt. of NCT, Delhi
Through the Principal Secretary
Principal Secretary, Personnel
At ITO, New Delhi-01.
2. The Delhi Subordinate Services Selection Board,
FC-18, Institutional Area,
Karkardooma, Delhi-92. .... Respondents.
(By Advocate, Shri N. K. Singh for Ms. Avnish Ahlawat)
:ORDER:
Justice Permod Kohli, Chairman :
This Application has been filed challenging the final answer key dated 06.07.2017 (Annexure A-1) qua the answer to Question No.122 of the Tier-I examination held for the post of DASS Grade-II represented by Post Code 40/13 with further prayer for revision of the result of the Tier-I examination for the said post. 2
2. Briefly speaking, the facts which are relevant for purposes of the present OA are that applications were invited by Delhi Subordinate Services Selection Board (DSSSB) for selection to the post of DASS Grade-II under Post Code 40/13. The selection was to be made on the basis of examination conducted in two stages, i.e., Tier-I and Tier-II. The applicant applied for the post under Scheduled Caste category. He was issued Admit Card (Annexure A-3) by allotting Roll No.14217623. The date of Tier-I examination was notified for 25th June 2017 between 12.30pm to 2.30pm. The applicant participated in the said examination. He secured 67.75% marks against the cut off 68.75 for the SC category. The applicant has not been short listed for Tier-II examination. It is stated that the respondent No.2 (DSSSB) issued answer key on 30.06.2017 and Result Notice on 06.07.2017. Tier-I examination was objective type. Candidates were required to opt for one out of four options. For Question No.122, in the answer key uploaded by respondent No.2, the correct answer is (C), i.e., "शोणित". According to the applicant, the correct answer is (D), i.e., "कासारि", which means „enemy of cough‟. It is mentioned that since the DSSSB did not give any opportunity to the candidates to raise objections on the answer key, the applicant did not do so. However, he submitted a representation dated 10.07.2017.
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3. Shri Ranjit Sharma, learned counsel for the applicant has vehemently argued that the gap between the cut off points and the points awarded to the applicant being only one and each question carries one mark, the applicant‟s answer according to the dictionary is (D) but on account of wrong answer key, he has been denied one mark for the said question despite his answer being correct. Hence, this Application has been filed seeking the reliefs mentioned hereinabove.
4. Question No.122 is under Part-(V)-Test of Language: Hindi. The question and answers are in Hindi. Question No.122 is reproduced hereunder:-
"(121 औि 122): प्रत्ये क प्रश्न में पर्ाा र्वाची स्वरुप के चाि शब्द णिए गए हैं | जो शब्द पर्ाा र्वाची नहीीं है उसे चुने |"
"(122) िक्त (A) खू न (B) रुणिि (C) शोणित (D) कासारि"
It is argued that the correct answer is "कासारि " whereas in the answer key copy placed on record as Annexure A-1, the answer given therein is (C), i.e., " शोणित" .
5. The counter affidavit has been filed by the respondents on the affidavit of Deputy Secretary, DSSSB. The respondents have stated that the DSSSB conducted objective type examination on 25.06.2017 for the post of DASS Grade-II under Post Code 40/13. Answer key 4 for the said examination was uploaded vide notice dated 29.06.2017 on the Board‟s website https://dsssbonline.nic.in. The candidates were requested to check the answers of questions after logging in and going into the e-challenge module. The candidates were also provided opportunity to file their challenge related to the answer key after login in the e-challenge module after paying the prescribed fee. It is further mentioned that the fee shall be refunded if the applicant is found successful but to be forfeited if challenge is not found successful. It is also mentioned that in the aforesaid notice dated 29.06.2017, it was clearly mentioned that only challenge filed through e-challenge module will be accepted and no other mode of challenge will be accepted including the letters. The last date for filing challenge to the answer key was up to 03.07.2017 till 5.00pm, and after which no challenge was to be accepted. The respondents have also mentioned that the challenges received within the prescribed time were considered and changes were made wherever necessary. The objections received within time were sent to the subject experts and based upon the opinion of the subject experts final answer key has been issued.
6. In respect to the case of the applicant, it is mentioned that the applicant secured less marks than the cut off fixed in Tier-I examination. He secured 67.75% marks against cut off of 68.75% out of 195 and thus could not be short listed for Tier-II examination. The 5 claim of the applicant that he has missed the selection for Tier-II examination by one mark due to wrong answer key is hypothetical presumption.
7. We have heard learned counsel for the parties at length and perused the averments made in the respective pleadings.
8. The only argument of learned counsel for the applicant is that it is on account of wrong answer key that the applicant has been deprived of his short listing/selection for Tier-II examination. If the answer to Question No.122 is rectified, the applicant would compete for Tier-II examination. The applicant should not be made to suffer due to the fault and wrong answer key published by the selection body. He has referred to answer to Question No.122 from the dictionary. A copy of the same has been placed on record. The word "कासारि" is shown, as no synonyms of the word "िक्त" (blood), whereas all other answers are said to be synonyms of the word "blood" in Hindi.
9. Two questions arise for consideration by this Tribunal; (i) whether the applicant has a right to challenge the correctness of the answer key and (ii) the remedy available to the applicant, even if, the answer of (i) question is in affirmative.
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10. It goes without saying that the field of academics is the domain of experts. This Court even if prima facie is of the opinion that the proper answer in a answer key is not correct, it should refrain itself from intruding in the expert field and decide the issue on the basis of its own prima facie view, which is otherwise opined with regard to the meaning of any word and the correctness of the answer sheet.
11. The primary grievance of the applicant is that he was not provided any opportunity to seek the remedy with the respondents and thus on account of error which according to the applicant is apparent, the applicant should be granted the relief prayed for. The plea of the applicant that he was not afforded any opportunity to seek rectification of the order stands belied from the counter affidavit filed by the respondents.
12. Under the caption "brief facts", specific averment has been made that after the objective type examination was held on 25.06.2017 for the post in question, vide notice dated 29.06.2017, the answer keys of the question in respect of master "set of question" paper was uploaded on the Board‟s website (https://dsssbonline.nic.in) and the candidates were requested to check the answer of questions after logging in and going into the e-challenge module. The candidates were permitted to file their challenge after paying prescribed fee. If the challenge succeeds, fee is to be refunded and to be forfeited if the 7 challenge fails. It is also mentioned that such challenge was to be made up to 03.07.2017 till 5.00pm and the challenges received within the prescribed time were considered and changes were made wherever necessary. In respect to the challenges received, the same were sent to the subject experts and based upon their opinion necessary changes were to be carried out. The applicant has nowhere stated in the OA that he ever made a challenge in respect to answer to Question No.122 after the answer key was published on the official website of Respondent No.2.
13. To the contrary, the applicant claims to have made a representation on 10.07.2017, i.e., after publication of final result. Thus, the averment made in the OA that no opportunity was provided to the aggrieved candidates to seek remedy is baseless and incorrect.
14. No rejoinder has been filed to the counter affidavit disputing or denying the averments made therein. The statement made on affidavit by the respondents in this regard cannot be disbelieved.
15. At the first place, the applicant had the remedy by throwing a challenge to the answer key, be it Question No.122 or any other question, which he failed to do so within the prescribed time. Thousands and lakhs of candidates appear and the examination has to be conducted in a time bound manner and it is not so easy position 8 with respect to the rectification of errors. The respondents voluntarily and on their own published the answer key on its official website inviting challenge to the answer key within the specified time. No such challenge was made by the applicant within the prescribed time. Such a process cannot be allowed to continue unending as thousands and lakhs of candidates who participated in the examination cannot be put to ransom for unlimited time.
16. The issue as to whether challenge to the examination for any selection should be entertained has been considered by the Apex Court in catena of judgments. The overwhelming opinion of the Apex Court is that re-evaluation of the answer sheet for any written examination can only be permitted if any rule so permit.
17. In the matter of Manish Ujwal and Others vs. Maharishi Dayanand Saraswati University and Others [(2005) 13 SCC 744], a common entrance test based upon multiple choice objective answers was held. The outcome of the result was challenged on the allegations of six questions given in the answer keys being erroneous and incorrect. The examination comprises of 100 questions of three marks each and for each wrong answer negative marking system was adopted, i.e., one mark would be deducted for each wrong answer.
18. Learned Single Judge of the Hon‟ble High Court sought experts‟ opinion of Jodhpur University and Udaipur University in 9 respect to the wrong key answers pertaining to three subjects, viz., Physics, Chemistry and Biology. The experts opined that the answers contained in the answer key of the University were erroneous. The High Court, however, declined the relief on the ground that commencement of the course may be delayed and the admission process for the courses may go beyond 30.09.2005 which is the cut-off date fixed by Hon‟ble Supreme Court in case of Mridul Dhar (Minor) vs. Union of India (2005) 2 SCC 65. The Hon‟ble Supreme Court, however, made the following observations:-
"10. The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to the six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the 10 students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case.
Finally, the Hon‟ble Apex Court set aside the judgment of the High Court and issued following directions:-
11. The second counseling for the admission abovementioned, we are informed, is fixed from 25-8-
2005, onwards. We direct re-evaluation of all the questions by feeding correct answers, as abovenoticed, and on that basis correct number of marks obtained by all the students should be assigned and their ranking prepared. This exercise shall be completed within a period of three days from today. List so prepared shall be put on internet soon thereafter as also be published in the newspapers wherein it was earlier published. The second counseling and admissions hereinafter in the medical and dental courses in the State of Rajasthan in government colleges as also in the private colleges insofar as the State quota is concerned would be made on the basis of ranking as per the list which will now be prepared by the University pursuant to the directions of this Court. The merit list shall be prepared for the same number of students as it was prepared earlier while declaring the results on 22-5-2005 and 23-5-2005.
19. In Himachal Pradesh Public Service Commission vs. Mukesh Thakur and Another [(2010) 6 SCC 759], the Himachal Pradesh Public Service Commission (HPPSC) conducted a written examination to fill up the post of Civil Judge (Junior Division). One of the unsuccessful candidate who was not invited for viva-voce filed a petition seeking re-evaluation of his answer sheet.
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20. The High Court ordered re-evaluation of the answer sheet and based upon the marks awarded in re-evaluation issued directions for appointment. The HPPSC approached the Hon‟ble Supreme Court and the Hon‟ble Supreme Court with the consent of learned counsel for the parties sent the answer sheet to other eminent Professor who awarded lesser marks than the earlier examiner in re-evaluation. While hearing the case finally, the Hon‟ble Supreme Court formulated three questions, which are relevant for purposes of the present OA, reads as under:-
"(i) As to whether it is permissible for the court to take the task of examiner/Selection Board upon itself and examine discrepancies and inconsistencies in the question papers and valuation thereof?
(ii) Whether the court has the power to pass a general order restraining the persons aggrieved to approach the court by filing a writ petition on any ground and depriving them of their constitutional rights to approach the court, particularly, when some other candidates had secured the same marks i.e. 89 and stood disqualified for being called for interview but would not approach the court?
(iii) Whether in the absence of any statutory provision for revaluation, the court could direct for revaluation."
Considering various aspects and the judgments, the Hon‟ble Supreme Court relied upon a judgment of the Apex Court in case of Pramod Kumar Srivastava v. Bihar Public Service Commission [(2004) 6 SCC 714] wherein following observations were made:-
"7. ... Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for 12 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 revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks."
Relying upon the aforesaid judgment, the Hon‟ble Supreme Court held as under:
26. Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation.
21. Shri N. K. Singh, learned counsel, appearing on behalf of Mrs. Avnish Ahlawat, learned counsel for the respondents has placed reliance on a recent judgment of the Apex Court in the matter of Ran Vijay Singh & Ors. vs. State of U.P. & Ors., Civil Appeal No.367 of 2017 decided on 11.12.2017, wherein their Lordships taking note of various judgments and issues, held as under:-
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) 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; (ii) 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" and only in rare or exceptional cases that a material error has been committed; (iii) The Court should not at 13 all re-evaluate or scrutinize the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
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."
Though in the facts of this particular case, some directions were issued in para 37. These directions are not relevant for purposes of issues involved in the present OA.
22. Learned counsel for the applicant has, however, referred to judgment of the Apex Court dated March 13, 2013 in Civil Appeal Nos.2525-2516 of 2013 in the matter of Rajesh Kumar & Ors. etc. vs. State of Bihar & Ors. etc. and connected Civil Appeal No.2517of 2013 in the matter of Abhishek Kumar & ors. vs. State of Bihar & ors. In this case, the Hon‟ble Supreme Court has observed as under:-
"If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to „A‟ series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without 14 saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key."
It appears that during the course of arguments, the parties arrived at a mutually agreeable order as is noticed by the Apex Court in para 15, which reads as under:-
"15. Appearing for respondents 6 to 18 Mr. Agrawal submitted that he had no objection to the order of the High Court being modified so as to replace "a fresh examination" by "revaluation of the answer scripts" on the basis of a correct key. Counsel for the Staff Selection Commission also submitted, on instructions, that the answer scripts had been preserved and could be subjected to a fresh evaluation. Learned counsel for the parties were further agreeable to the key as proposed by Dr. (Prof.) C. N. Sinha and Prof. KSP Singh of NIT, Patna forming the basis of any such re-evaluation by a suitable modification and deletion of question Nos.6 and 46 which were found to be absurd and question No.34 and 63 which were repeated as Nos.74 and 93. They further agreed to the deletion of questionNo.100 the answer to which was not correctly printed."
Based upon the aforesaid mutual agreement, various directions were issued for appointment of the persons based upon the outcome of the re-evaluation without disturbing the already appointed selected/appointed candidates.
23. The scenario in the present case is, however, not the same as in the case relied upon by the applicant. The applicant has challenged the answer key with regard to one question only, though the marks allocated for each question, i.e., one, matter a lot for the applicant, 15 however, there may be hundreds and thousands of other candidates who might have attempted the same question and denied the mark on the basis of answer key published by respondent No.2. None of them have come to the Tribunal so far this bench is concerned. We do not know how many candidates appeared in the examination and how many are likely to be affected if the re-evaluation is ordered. Obviously, re-evaluation of even one question involves an extensive exercise of examining the answer sheets of each of the candidates to find out who opted for Question No.122. Even though, one number matters for the applicant but it may or may not be so in respect to other candidates who might have attempted Question No.122. We cannot direct re-evaluation of only one candidate. It would amount to deny the similar treatment to others as held by the Hon‟ble Supreme Court. There does not seem to be any provision of re- evaluation and no such provision has been brought to our notice. The law is settled by the Apex Court that no re-evaluation is permissible in absence of a rule, and on that count no relief can be granted to the applicant.
24. Additionally, the respondents have provided the opportunity to all the candidates to challenge the answer key up to 3rd of July, 2017 up to 5.00pm. The applicant did not avail the opportunity and never challenged the answer key or sought its rectification within the prescribed time and through the prescribed mode, i.e., through e- 16 challenge module. Subsequent representation of the applicant after the final result is declared would not have been entertained by the respondents and we are also of the opinion that no challenge can be entertained unless made in the prescribed time and manner. It is settled law that where law requires a thing to be done in a particular manner it can only be done in that manner and not otherwise. For this reason as well, the applicant is not entitled to the relief claimed.
25. This Original Application accordingly fails and is hereby dismissed. No costs.
(K. N.Shrivastava) (Justice Permod Kohli)
Member (A) Chairman
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