Central Administrative Tribunal - Delhi
Rakesh Kumar Gupta vs Bharat Sanchar Nigam Ltd on 19 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 2860/2010
Reserved On:14.07.2014
Pronounced on:19.08.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (J)
1. Rakesh Kumar Gupta
S/o Shri G.L. Gupta
Aged about 38 years
R/o Quarter No.T-IV/5, BSNL,
Sanchar Vihar, Sector-9,
R.C. Vyas Colony, Bhilwara (Raj)
At present employed
On the post of Junior Telecom Officer (Civil)
O/o Sub Divisional Engineer (Civil),
BSNL, Civil Sub-division, Bhilwara.
2. Manoj Kumar Gupta
S/o Shri R.D. Gupta
Aged about 39 years
R/o Quarter No.T-III/9,
BSNL Telecom Colony,
Manwakhera, Udaipur (Raj.)
At present employed
On the post of Junior Telecom Officer(Civil)
O/o Sub Divisional Engineer (Civil),
BSNL, Civil Sub-division, Udaipur.
3. Deepak Gaur
S/o Shri Hargovind Gaur
Aged about 34 years
R/o B-38, Tarang Vihar,
R.A. Kidwai Road, Wadala (W),
Mumbai-110031
At present employed on the post of
On the post of Junior Telecom Officer
(Civil)
O/o Sub Divisional Engineer (Civil),
BSNL, Civil Sub-division-V,
Dadar, Mumbai-28.
Applicants
By Advocate: Dr. Sumant Bhardwaj.
Versus
1. Bharat Sanchar Nigam Ltd.
Through its Chairman & Managing
Director, Corporate Office,
Bharat Sanchar Bhawan,
Harish Chandra Mathur Lane, Janpath,
New Delhi-110001.
2. The Director, HRD,
Corporate Office, BSNL, 3rd Floor,
Bharat Sanchar Bhawan,
Harish Chandra Mathur Lane,
Janpath, New Delhi-110001.
3. Assistant General Manager,
BSNL (A Govt. of India Enterprise),
DE Branch, 222, Eastern Court,
Janpath, New Delhi-110001. ..Respondents
By Advocate: Shri Alakh Kumar.
ORDER
Honble Mr. G. George Paracken, Member (J) This joint Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 read with Rule 4 (5) of Central Administrative Tribunal (Procedure) Rules, 1987 seeking a declaration that the impugned Annexure A-2 select panel dated 08.07.2009 as amended by Annexure A-3 Corrigendum dated 10.07.2009 for the post of SDE (Civil) against Limited Departmental Competitive Examination (LDCE for short) quota is illegal and for a direction to the Respondents to hold the selection afresh in accordance with the rules in force. They have also made the alternative prayer to direct the Respondents to get the key answers corrected and re-examined the answer sheets of all the candidates accordingly, by an independent expert on the subject and also to re-examine the descriptive answer sheets by applying a uniform standard of marking and thereafter prepare a revised panel for the post in question and allow all consequential benefits.
2. The brief facts: The Applicants were initially appointed to the post of Junior Engineer [re-designated as Junior Telecom Officers (JTO for short)] in Bharat Sanchar Nigam Limited (BSNL for short) on 21.03.2000, 23.04.1997 and 17.11.1999 respectively. The next promotional post for the post of JTO is Sub Divisional Engineer (SDE). The method of appointment is 67% of the promotional post to be filled up on the basis of seniority-cum-merit and remaining 33% on the basis of LDCE. In the case of the Applicants, the LDCE was held on 10.08.2008 in respect of all the BSNL Circles except that of J&K Telecom Circle. Subsequently, the examination for the candidates belonging to J&K Telecom Circle was also held on 15.02.2009. The examination consisted of two papers, first one being objective type and the second descriptive type, both carrying 100 marks each.
3. The Respondents declared the results of both the examinations held on 10.08.2008 and 15.02.2009 as stated earlier but there were lot of differences in the objective type of question paper for J&K Circle and other Circles inasmuch as, in J&K Circle there were only 50 questions whereas in other Circles there were 100 questions. According to the result of the LDCE held on 10.08.2008 declared vide Annexure A-2 panel dated 08.07.2009, 63 candidates qualified. As the names of the Applicants were not in the said panel, under the Right to Information Act, 2005, they got their answer sheets, copy of objective type question papers for J&K Circles and others Circles, part of note sheets regarding decision for holding examination for the candidates belonging to J&K Circle etc. They have also down loaded the key answers for both the papers from internet. According to them, there were lot of irregularities and discrepancies. For example, in Question Paper-II, question No.1 regarding Reinforced Cement Concrete (RCC) was to be solved by working stress method. According to the Applicants, there were two methods for designing of RCC structures. First is, Limit State Design Method and second is Working State Design Method. The Working State Design Method is obsolete now. The IS Code of Bureau of Indian Standards of RCC, i.e., IS: 456-2000 also recommends Limit State Design Method only. The maximum candidates appeared in LDCE have studied Limit State Design Method only in their B.E. course. But, the question was on Working Stress Design Method. Therefore, according to the Applicants, marks for the said question which carries 20 marks should not be evaluated or for it equal benefit should be given to all candidates. Then there was another question carrying 10 marks relating to Steel Table and there was an annotation in the question paper with regard to said question which read; use of Steel Table supplied by the invigilator in the examination hall is permitted. However, according to the Applicants, no such table was made available at the centres from where they have appeared and they could not attempt that question properly. Therefore, according to them, the said question should be ignored and it should not be evaluated. They have also submitted that some of the answers were correct as per answers in the key but marks given were either not taken in totaling or in some cases zero mark was awarded. In some cases, the key answers themselves were wrong. One particular instance, according to the Applicants is that, question No.6 in J&K Circle and question No.45 in other Circles were the same, but the answers in the respective key were different. The Applicants have also categorized all the alleged discrepancies/irregularities as under:-
Category I: applicant answered as per the answer key but marks not given:-
1.Q.No. 51 Paper-I Black cotton soil is unsuitable for the foundations because its..
(A) Bearing capacity is low (B) Permeability is uncertain (C) Particles are cohesive (D) Property to undergo volumetric changes due to variation in moisture content.
Answer in BSNL key is option D and applicant Manoj Kumar gupta roll no.49 has ticked on same option but declared wrong and awarded -0.25 marks and failed as he has gained 49 marks out of 100 at present, hence barred from qualifying as minimum qualifying marks required is 50 in each paper.
2. Q.No. 4(B)(a) Paper-II Please draw the shear force and bending moment digaram for the following:-
a) Cantilever beam of Length (L) with a point load (W) at fre end.
Applicant Manoj gupta Roll no. 49 answered it correctly but awarded only 3 marks instead of 6. Many candidates only drawn diagrams without giving calculation but Manoj Gupta gave calculation as well as the sign convention but awarded only 3 marks out of 6 marks. (Annexure-...)
3. Q.No. 9(B)(a)& (b) Paper-II What is live load considered in design for
a) Residential Building
b) Office building Applicant Deepak Gaur roll no.65 answered correctly in a elaborated manner which is an per IS code IS:875-Paper-2)-1987 page-7 & 9 and even as per BSNL key but awarded zero (0) marks. Hence requested to award 4 marks to Deepak Gaur roll no. 65.
Category-II Required steed table was not provided to solve Q.No. 2 Paper-II:- Steel table was required to solve Q.no.2 of was brought to the notice of the exam convenor DGM (Mobile) and he assured to convey the fact to examination cell and he did the same. The candidates who appeared in Mumbai centre wrote a note on their answer sheet also. Copy of answer sheet of Deepak Gaur (roll no. 65), Ajay Yadav (roll no.72) 7 H.N. Kukreja (roll no. 68) enclosed. At Chennai centre it was not provided, at Andhra centre it was officially provided and at Jaipur centre candidates used photocopies of the steel table which was circulated by candidates themselves which was illegal. Hence, it requested either full 10 marks should be given to all students or marking should be done out of 90 instead of 100.
Category-II: Applicant answered as per the reference books and codes but answer in answer key were incorrect:-
1. Q.No. 14 Paper-I In a grillage foundation. The maximum shear force occurs at the (A) Edge of grillage foundation (B) Centre of base plate (C) Centre of the grillage beam (E) Centre of base plate The answer is declared by BSNL optionB i.e. centre of base plate that is wrong because option B and option E are same in the question and according to book of building construction written by Sushil Kumar P-141 in the design of grillage foundation clearly writes that maximum shear in beam occurs at edge of base plate and in the options given in question edge is written in option A only that is edge of grillage beam and all the options contains centre of base plate or centre of grillage beam hence my client Manoj Kumar Gupta roll NO. 49 has ticked on option A that is edge of grillage beam by declared wrong and awarded-0.25 marks Which is unlawful and injustice. The other book steel structure by author L.S. Negi on P-112 & 113 in his book writes the maximum shear force on the beam edge also. Hence requested to award 1.25 marks.
2. Q. No. 36 Paper-I The deep beams are designed for.
Shear Force Only Bending Moment Only Both Shear force and bending moment Bearing The answer declared by BSNL option B i.e. Bending moment only is absolutely wrong. The IS code 456 : 2000 stipulated clearly in section 29 on page 51 that the deep beams are designed for bending moments and shear force combined and the reinforce calculated under section 29.02 for bending moment and in section 29.3 for shear force hence the answer declared by BSNL option B i.e. bending moment only is wrong and answer opted by my client Manoj Kumar Gupta Roll No. 49 is correct but awarded -0.25 marks which is unlawful and injustice. Hence requested to award 1.25 marks.
3. Q. No. 42 Paper-T In a doubly reinforce concrete section, the presence of steel bars in compression Zone the depth of the natural axis--
(A) Effect (B) Does not effect The answer declared by BSNL option B i.e. does not effect that is wrong because in the formula to work out neutral axis of a doubly reinforced section the area of steel bar in compression zone participate and effect the depth of neutral axis. According the code and all other books of design of RCC writers as the following formula for calculation neutral axis of doubly reinforced beam:-
(b.x x/2) + (1.5 m-1) ASc. (x-d) = m.Ast. (d-x) {page 33 of R.C.C. hand book of writer M.G. Shah & C.M. Kale) the compression steel ASc take part in calculation the neutral axis.
And Dr. B.C. Punmia in book C. C. designs on page No. -117 writers clearly the neutral axis of a doubly reinforced section can be found by finding the centre of gravity of the combined section consisting of concrete in compression only and steel in compression and tension. Hence the answer declared by BSNL option B i.e. does not effect is wrong and answer opted by my client Manoj Kumar Gupta Roll No. 49 is correct but awarded -0.25 marks which is unlawful and injustice. Hence requested to award 1.25 marks.
4. Q. No. 43 Paper-I a foundation is classified as shallow foundations when depth of foundation is.
(A) More than its width (C) Less than its length (D) More than its length the answer is declared by BSNL option C i.e. less than its length which is wrong because as per caluse 2.2.5 Page-5 of IS code IS:6403-1981. Others books like Hand Book of Geotechnical Engineering page 702/15.2, written by Shri C. Vendatramaiah and published by New Age International New Delhi and Subhash Chandra in book Geotechnical and foundation engineering on page No. 508 writers clearly a foundation is shallow if its depth is equal to or less than its width hence the option B ticked by my client Manoj Kumat Gupta Roll No. 49 and Deepak Gaaur Roll No. 65 is correct but awarded -0.25 marks which is unlawful and injustice. Hence it requested to award 1.25 to each of applicants.
5. Q. No. 62 Paper-I a structure subjected to the action of sea water the cement used is ------
(A) Rapid hardening cement (B) Low heat cement (C) High alumina cement (D) Sulphate Resisting Cement the answer is declared by BSNL option c i.e. high alumina cement is correct but the other option available in the question D also correct because clause 0.2.1 page-1 of IS code IS:12330-1988 and as per book of civil engineering materials and construction Practices Page resisting cement is used for marine works with reason hence the option B ticked by my client Manoj Kumar Gupta Roll No. 49 and Deepak Gaur Roll No. 65 is correct but awarded -0.25 marks which is unlawful and injustice. Hence it is requested to award 1.25 to each of applicants.
6. Q. No. 96 Paper-I Percussion drilling is unsuitable in -----------
(A) Unconsolidated sand (B) Unconsolidated gravel (C) Quick sand (D) Consolidated rock the answer is declared by BSNL option D i.e. Consolidated rocks is wrong because as per book of Soil mechanics and foundation engineering author Dr. B.C. Punmia and Shushil Kumar in book building construction on page No. 378 and 20 respectively writers clearly This method can be adopted in rocks and soil having boulders however this method is not recommended for loose sand or clayey soils. hence the answer declared by BSNL option D i.e. Consolidated rocks is wrong hence it may be corrected.
4. They have, therefore, submitted representations dated 20.07.2009, 20.08.2009, 21.07.2009, 12.02.2010, 05.10.2009 and 30.10.2009 etc. to the Respondents to take appropriate remedial measures but they did not consider them. According to them, in one paper, they were given only 48 and 49 marks respectively despite the fact that they got high marks in other papers. But since the minimum qualifying marks in each paper was 50, they were not selected. However, if their answer sheets were evaluated properly, they would have got more marks and they would have found their place in the select list.
5. The Applicants have earlier approached this Tribunal for redressal of their grievances vide OA No.1463/2010 and this Tribunal, vide its order dated 06.05.2010 disposed of the same with a direction to the Respondents to consider their representations and decide the matter by passing a reasoned and speaking order within a period of 2 months from the date of receipt of a copy of this order. It is in purported compliance of the aforesaid directions, the Respondents have passed the impugned Annexure A-1 letter No.63-20/2010-DE dated 12.07.2010. In the said letter as well as in the reply affidavit, the Respondents denied any favouritism in the matter but justified their actions. They have stated that result of the examination was declared on 8.7.2009 (Annexure A-2). As some inadvertent mistakes were detected in it, a corrigendum was issued, vide letter dated 10.07.2009. Further, the examination held was a competitive one and the minimum qualifying marks was 50% in each paper for General (OC) candidates. In case of SC/ST candidates, the minimum qualifying marks were 45% in each paper. All the three applicants, i.e., Shri Rakesh Kumar Gupta, Shri Manoj Kumar Gupta and Shri Deepak Gaur belong to General (OC) category. According to the Respondents, in the garb of pointing out some alleged discrepancies in evaluation, they are trying to get the answer sheets revaluated but it is not permissible in terms of Appendix 37 Rule 15 of Part-I of P & T Manual Vol. IV. (Annexure R-11) which stipulates that revaluation of answer scripts is not permissible in any case or under any circumstances. In this regard, they have relied upon the judgment of the Honble High Court of judicature, Andhra Pradesh in W.P. No.26059 of 2007 - Md. Mahaboob Ali and V.S. Veerabhadra decided on 18.03.2008 wherein it has held that when no such facility is provided for under the relevant rules, the court cannot compel the respondents, to undertake the evaluation. It has also been stated in the said judgment that time and again, the Supreme Court held that revaluation of an answer script in an examination can be undertaken, only when there is a provision for the same. Moreover, when the result of an examination is declared, it gets finality and if revaluation of answer scripts is permitted the process will never end. Further according to them, on re-totaling of marks, no discrepancy was found. As regards, the separate examination held for J&K Circle, they have stated that it was due to the prevailing unrest in the said State. Since all the preparedness for holding the examination in all other circles was complete, it was thought that the postponement of the examination there was not in the interest of the organization and the candidates and as such the competent authority decided to hold the examination in J&K Circle on a later date as soon as when normalcy was restored. Accordingly, the examination was held there on 15.02.2009. This decision of the competent authority was not objected to/contested by any candidate(s) before declaration of the result of the examination. Since they have failed to come in the merit list of the examination, they are trying to find loopholes in the examination system. As regards marking given by the evaluators not in accordance with the key is concerned, they have stated that the keys had been prepared by the paper-setters who are expert on the subject(s) and the answer key provided by the paper setter was taken as guidance by the evaluator and the evaluator is the final authority in so far as evaluation of answer sheet was concerned. They have further stated that the process of examination has already attained finality and all the successful candidates have already been appointed as SDE(C). Again, according to them, an examinee cannot decide the standard and nature of questions to be asked in an examination. Moreover, if the Applicants had any objection to the question paper(s) vis-`-vis syllabus of the examination, they should have represented against the same immediately after holding of the examination. But, they waited till the declaration of result of the examination and only after their names were found in the result, they have come up with all frivolous allegations. The papers of the Applicants were evaluated by fairly high level officials and, therefore, his/her wisdom cannot be called in question. In this regard, they have relied upon the judgment in the case of (Km.) Sneha Bhaisora v. State of Uttaranchal, wherein the High Court has held as follows:-
The High Court cannot step into the shoes of an expert body and examine the answer books or re-evaluate the marks given in the answer books on its own. The selection was made on all India basis in which only 222 candidates are said to have been selected. Mere re-evaluation of answer books of three or four candidates would not be proper for the purpose of taking a decision on the question whether the evaluation of marks given to all the candidates have been rightly done or not. If that exercise is to be done then the answer books of the entire candidate who have appeared in the examination must be evaluated. This court declines to take such an action, as this court will not step into the shoes of an expert body. Moreover, all the 222 candidates have been declared successful hence no question of re-evaluation of few of them only. As regards non-provision of Steel Table in examination in Paper-II, they have stated that photocopy of relevant papers of Steel Table was provided to all examinees who had demanded for the same including those at Jaipur Centre.
6. The Applicants have challenged the aforesaid order dated 12.07.2010 as well as their earlier select list dated 08.07.2009 as amended by the Corrigendum dated 10.07.2009 on the ground that their prospects for promotion to the grade of SDE from JTO will be hampered if the mistakes committed by the Respondents are not corrected. Further, they were stated that even though the Respondents themselves are aware of the irregularities in preparing the select panel, they were not ready to correct the said mistakes. Further, according to them, had the Respondents done the things correctly as per due procedure, they would have got their names in the select panel.
7. The Respondents have filed their reply repeating their submissions made in the aforesaid impugned Annexure A-1 letter dated 12.07.2010. They have also stated that as per the settled law, if a candidate takes the exam knowing about its methodology and if he is not selected, he cannot later challenge the methodology adopted as the law of estoppel would apply. In this regard, they have relied upon the judgment of the Honble Supreme Court in the case of General Manager, South Central Railway Secunderabad vs. A.V.R. Siddhanti 1974 (4) SCC 348, wherein it was held that once, having appeared in the examination, cannot be allowed to later challenge the procedure of selection. Again in Suneeta Aggarwal vs. State of Haryana and Others in 2000 (2) SCC 615, the Honble Supreme Court held as follows:-
The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of Vice Chancellor. Further according to them, all the successful candidates who are cleared from vigilance angle as there was no stay from any court of law or Vigilance Wing of BSNL against the declaration of the result. However, the promotion orders issued by BSNL vide orders dated 10.05.2010 and 09.07.2010 were issued subject to the final outcome of the OA No.316/CH/2010 pending before the CAT Chandigarh Bench as per order dated 20.04.2010 and now in compliance with the interim order dated 01.09.2010 of the Tribunal in this OA, further promotion order issued, if any, will be subject to the outcome of this OA also. The order dated 12.07.2010 issued in compliance of the order of the Tribunal dated 06.05.2010 in OA No.1463/2010 is very much reasoned and speaking. The said order was issued after following due process and after obtaining the approval of the competent authority.
8. We have heard the learned counsel for the Applicant Dr. Sumant Bhardwaj and the learned counsel for the Respondents Shri Alakh Kumar. We have considered similar issues in OA No. 207/2013 and connected cases Sr. Pradip Kumar Das and Others Vs. BSNL and Others decided on 21.05.2013. They were with regard to the LDCE for promotion from the grade of JTO (T) to the grade of SDE (T) under 33% quota held by the Respondents in BSNL on 04.03.2012. In the said case, the Respondents themselves were aware of the discrepancies in the question paper. They also had a positive approach to resolve the problem. Therefore, this Tribunal has disposed of the said OA with certain directions acceptable to the Respondents. The operative part of the said order reads as under:-
18There is no dispute between the parties that there were some discrepancies in the questions set in Advance Technical Paper-1 of the LDCE held on 04.03.2012 for promotion to Sub Divisional Engineer (Telecom) under 33% quota. But nobody can find fault with manner in which the examination in question was conducted by the Respondent-BSNL. They were, in fact, quite transparent in all the aspects of the procedure in holding the examination. They were also quite positive in their approach in the matter. They themselves have issued a provisional answer key to the aforesaid question paper, inviting objections, if any. They have also responded positively to objections against the answers given in the provisional key by referring the matter back to paper setters. They have also constituted a Committee of Experts to go into the various discrepancies pointed out by various candidates/organizations. The Committee has thoroughly gone through all the questions and their tentative answer key and came out with their own recommendations. They did not accept the aforesaid recommendations of the Expert Committee in toto. So far so good. But they committed the mistake of coming out with their own compromise answers where there were differences between recommendations of the Expert Committee and those of the Paper Setters. For example, in those cases where the Expert Committee recommended that option D alone was correct, since the paper setters have recommended the other two options are also correct, the BSNL decided that options A and D are the correct answers. Again, when the Expert Committee recommended that options C and D are correct in certain other cases, the BSNL decided that only option D will be treated as correct. According to the BSNL, their stand is final and accordingly marks have to be awarded to the candidates.
19. In our considered view, still there are discrepancies and, therefore, still there is scope for improvement. According to the Expert Committee, for some questions, 2 options can be taken as correct, for some other questions all options are wrong and for few other questions, one option is alone correct. But according to paper setters for some questions (3) three options are correct and for some other questions (2) two options are correct. In such circumstance, we shall look forward to the principles laid down by Apex Court which say that merit shall not be allowed to be the casualty of wrong answer key and the correct answers shall not be sacrificed. Further, in such circumstances, as far as possible, the final authority to decide whether a answer is correct or wrong shall be left to the Expert(s). For some questions, however, if the decision of the Expert(s) does not solve all the problem, we are bound to take appropriate decisions. Therefore, there is nothing wrong in accepting the recommendation of the Expert Committee to award one full mark to all the answers where all options are wrong. Again, for a set of questions when the Expert Committee says option D is the only correct answer and for another set of questions when it says, option A alone is the correct answer, the Respondent-BSNL shall go with the said recommendations and not to substitute them with its own compromise formula of awarding full one mark to all who have opted for A, B and D or A and D respectively. Conversely, the recommendation of the Expert Committee that two options for another set of questions also cannot be accepted as it would create further confusion, particularly when there is negative marking. Therefore, all such questions shall be totally ignored.
20. We, therefore, dispose of all these OAs with the direction to the Respondent-BSNL to re-evaluate all the answer sheets of all the candidates based on the aforesaid principles and parameters and prepare a fresh list of qualified candidates. Since the examination was held on 04.03.2012 and candidates are awaiting for their promotion for over an year, the Respondent-BSNL shall ensure that the fresh list of qualified candidates is published as early as possible, preferably within 2 months from the date of receipt of a copy of this order.
21. There shall be no order as to costs.
9. However, in the present case, the Respondents are sticking to their gun. They are not inclined to accept any of the alleged irregularities/mistakes pointed out by the Applicants. It is seen that the grievances of the Applicants are against the LDCE held for the promotion of JTOs to the post of SDEs held on 10.08.2008. They have earlier approached this Tribunal vide OA No.1463/2010 for redressal of their grievance. This Tribunal disposed of the said OA on 06.05.2010 with the direction to the Respondents to consider their representation and decide the matter on their own. However, the Respondents in the impugned letter dated 12.07.2010 again justified themselves and ignored all the discrepancies shown by the Applicants. The main discrepancies shown by the Applicants are as follows:-
(i) In Question Paper-II, question No.1 regarding Reinforced Cement Concrete (RCC) was to be solved by working stress method but it was an obsolete method and the method in vogue is Limit State Design Method. As the Applicants could not attempt that question carrying 20 marks, it should not be evaluated for any one.
(ii) For another question on Steel Table carrying 10 marks, the use of Steel Table supplied by the invigilator in the examination hall is permitted, the Table was not supplied in Centres allotted to the Applicants but in others, it was provided. As a result, the Applicants could not attempt that question properly. Hence said answer also shall not be evaluated for any one.
(iii) For question No.51 in paper, the Applicant No.2 Shri Manoj Kumar Gupta answered as per the key but he was awarded 0.25 negative marks.
(iv) For question No.4(B)(a) in Paper-II, Shri Manoj Kumar Gupta answered as per key but he was awarded only 3 out of 6 marks but others were given 6 marks.
(v) Question No.9(B)(a) & (b) in Paper-II carrying 4 marks was answered by Applicant No.3 Shri Deepak Gaur as per key but he was awarded 0 marks.
(vi) The answer in the key for Question No.14 carrying 1.25 marks in Paper-I was wrong but the Applicant Shri Manoj Kumar Gupta gave the correct answer as per the text books. Therefore, he was not given the marks.
(vii) Similarly Answers for Question No.36, 42, 43, 96 in Paper-I given in the key was wrong and the correct answers given by Shri Manoj Kumar Gupta for all of them and the correct answer given by Shri Deepak Gaur for question No.43 in Paper-I were not awarded the marks.
(viii) For question No.62 in Paper-I two options given in the key were correct but both Shri Manoj Kumar Gupta and Deepak Gaur who gave the correct answers were not given the marks.
10. In such cases, we are guided by the judgment of the Supreme Court in the case of Kanpur University through Vice Chancellor and Others Vs. Samir Gupta and Others 1983 (4) SCC 309 wherein it was held that if the key answer was not correct and the answers given by the students were correct, the Respondents have to reassess the answer books and to award additional marks. Again, it in its judgment in the case of Gunajan Sinha Jain Vs. Registrar General, High Court of Delhi [Writ Petition (C ) No.499/2012 and other connected cases] decided by the Delhi High Court on 09.04.2012, if there are more than one correct option for any question, such question should be removed from the examination. However, if such a direction is given to Respondents in the case, the earlier result of LDCE held on 10.08.2008 will get upset for the sake of the three Applicants in the OA. Again, it is not practically possible for upsetting the result after 6 years giving direction in respect of question related to Reinforcement Cement Concrete and Steel Table.
11. In the above facts and circumstances, we dispose of this OA with the direction that the Respondent-BSNL shall revaluate the Answer Sheets of the Applicants in the following limited manner:-
(i) As pointed by the Applicants, wherever they have answered the questions as per the key and they have not been awarded marks, they should now be awarded the prescribed marks.
(ii) In such cases, if under-marking has been done whereas they deserve full marks, now full marks shall be given.
(iii) In respect of those answers in the key which are wrong as pointed out by the Applicants, they shall be referred to experts to get their opinion. If the answers given by the Applicants are correct, they shall be given the credit for them.
(iv) Further, in view of the limited directions given in the case, in respect of those questions, if there are more than one correct answers and if the Applicants have given one of those correct answers, they shall be given the credit for it.
The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. If, on the basis of aforesaid limited revaluation of the papers of the Applicants, they are found eligible for promotion, they shall be given the orders of promotion retrospectively with effect from the dates others in the merit list have been promoted with all consequential benefits, except back wages. The entire exercise in this case shall be completed within 3 months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh