THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION Nos.3691, 3882, 4366, 4900 and 5064 of 2022
COMMON ORDER:
As the issue for consideration in all these writ petitions is one and the
same, they are being disposed of by way of this common order.
2. In these batch of writ petitions, the petitioners are aggrieved by the
action of the respondents in adopting illegal and non-transparent procedure
for the selection and appointment of Extension Officers, Grade-II (Supervisor Grade-II) in Women Development and Child Welfare Department, Warangal Region, Telangana, pursuant to Notification No.501/2021, dt.03.11.2021 issued by the 3rd respondent, as arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India and consequently, to set aside the said notification.
3. Heard Sri C. Damodar Reddy, learned Senior Counsel, appearing for Sri. C. Ruthwik Reddy, Sri. Rajeshwar Rao Garige and Sri. Gajanand Chakravarthi, learned Counsel the petitioners in these writ petitions, and the learned Special Government Pleader attached to the office of the learned Advocate General, appearing for the respondents.
4. Since, the pleadings in all these writ petitions are similar, the pleadings in W.P.No.3882 of 2022 are taken as the basis for consideration by this Court. 2 Contentions of the petitioners:
5. Petitioners contend that Notification No.501/2021, dt.03.11.2021 was issued by the 3rd respondent seeking to fill up the vacancies of Extension Officers, Grade-II (Supervisor Grade-II) in Women Development and Child Welfare Department, Warangal Region, Telangana, by calling for applications from the eligible candidates, working as Anganwadi Teachers; that under the notification, the eligible candidates were required to submit their applications through online process; and that the selection of candidates was to be undertaken by the process of conducting written examination.
6. Petitioners further contend that, pursuant to the above notification dt.03.11.2021, petitioners, working as Anganwadi Teachers (Mini and Main), have submitted online applications; that as per the notification, the scheme of examination for undertaking selection is written exam containing 90 objective type questions with a duration of 90 minutes with maximum marks of 45; that the notification also specified that 05 marks would be assigned as incentive marks for candidates having 'Bala Sevika Training'; and that the total maximum marks prescribed under the scheme of examination to be conducted for selecting the eligible candidates was 50 marks.
7. Petitioners also contend that the notification further specified that there would be negative marking for incorrect answers; that the respondents, either in the notification or any time thereafter, did not specify the minimum/cutoff mark, though in the procedure of selection, it has been stated that mere 3 securing of minimum qualifying marks does not vest any right in the candidate for being considered for selection, which implies that one needs to get a minimum qualifying mark, out of the maximum marks of 50, to be in the zone of consideration; and that once the procedure prescribes that minimum qualifying mark is the basis for being considered for selection process, the non- specification/prescription of the same in the notification issued makes the entire selection process irregular and erroneous and the method adopted by the respondents is contrary to settled law.
8. It is also contended by the petitioners that the selection under the notification is for the post of Extension Officer in the cadre of Supervisory Grade-II and though the eligible candidates are Anganwadi Teachers, the question paper that has been prepared and issued to the candidates, even though is in the form of objective type, reflects as if the same is prepared for recruitment to a higher post, inasmuch as the same was running into more than 35 pages, which the petitioners could not attempt it within the short span of 90 minutes prescribed for completing the same.
9. It is contended by petitioners that, while the notification issued specified the maximum marks to be 50, of which 45 marks are for 90 objective type questions and other 5 marks being incentive marks, in the written examination conducted by the respondents on 02.01.2022, the question paper was issued for 90 marks, contrary to the scheme of examination specified in the notification and also that there is no minimum cutoff mark specified. 4
10. It is also further contended that as per the notification, for 90 questions, 45 marks was specified with each question carrying ½ mark with ¼ negative mark for every wrong answer. However, on the day when the written exam was conducted, the question paper was issued for 90 marks stating that each question would carry '1' mark, contrary to the notification; and that the respondents not only collected the OMR sheet, but also directed the candidates to return of question paper booklet along with the OMR sheet, which is contrary to the well settled procedure.
11. Petitioners also contend that the respondents got the question paper prepared through JNTU, which apart from being tough, also contained 12 wrong questions, as a result of which, the highest secured marks were only 28.5 marks, and upon issuance of final answer key, the highest secured mark was 25.
12. The petitioners also contend that, the respondents, having mentioned in the notification that 'Rule of Reservation' and eligibility in terms of General Rule 22 and 22(A)(3) of the State and Subordinate Service Rules would be applicable as to the vacancies, the Annexure-I appended to the notification does not indicate the application of Rule of Reservation and therefore the notification issued is erroneous and contrary to law.
13. Petitioners further contend that the respondents admitting to the fact of the question paper being tough, have issued a communication that there is no pass mark in the said examination conducted and stated that whoever gets the 5 highest marks would be selected for the above post in a transparent manner, itself goes to show that - firstly, in issuing question paper for 90 marks as against 45 marks prescribed in the notification; secondly, without specifying any cutoff mark contrary to condition No.3 of 'procedure of selection' specified in the notification; and thirdly, after completion of examination stating that there is no cutoff mark, would amount to change of rule/condition of selection, subsequent to the conduct of written examination and is contrary to settled legal principle that 'rules of the game cannot be changed after the game is played', as laid down by the Hon'ble Supreme Court in the case of K.Manjusree v. State of A.P.1. Thus, the petitioners contend that the entire selection process undertaken by the respondents under the notification is arbitrary, illegal and vitiated.
Contentions of the respondents:
14. A counter-affidavit on behalf of the respondents is filed.
15. While denying the writ averments, it is contended that the mention of 90 marks in the question paper issued is only for the convenience of evaluation, since the respondents in order to avoid any bias and to maintain transparency, had conducted the exam in objective type method, wherein the candidates are only required to choose the correct answer, instead of 1 (2008) 3 SCC 512 6 descriptive type answers, through the OMR sheets, on the basis of the correct answer being rounded off, for them to be evaluated through computers.
16. The respondents would further contend that after OMR sheets are evaluated for 90 marks, the marks secured as against 90 questions were scaled down to 45 marks equally across all the questions and thus, the selection of each candidate was undertaken only on the basis of such scaled down marks of 45 only for all the candidates.
17. By the counter-affidavit, it is also stated that, in the notification issued, it has been specifically stated that a candidate applying under the subject notification would be required to answer 90 questions, within the duration of 90 minutes and it is only for the sake of convenience, the mark has been specified as '1', since, evaluation of OMR sheet is undertaken through computer process, and thereafter, the total marks secured were scaled down to 45, for all the candidates, who appeared in the written examination by adopting the uniform exercise and such scaling down would not have any effect on the procedure for selection.
18. The respondents would further contend that, since misinformation was being spread by some of the candidates about the exam, claiming that most of the candidates who attended the exam not being able to attempt all the 90 questions due to shortage of time and on other unsubstantiated grounds, the 2nd respondent issued a communication immediately after the exam was held, clarifying that the exam is a competitive one with no minimum marks/pass 7 marks, and that the notified vacancies will be filled only from out of 16,815 candidates, who appeared in the written examination, based on their merit, duly following the rule of reservation, zones etc..
19. The respondents by the counter-affidavit, while denying the claim of the petitioners that there were 12 wrong questions in the question paper that was issued to the candidates, state that there were only three wrong questions in the main question booklet; and that the said three questions were deleted and the respective marks were awarded to all the candidates.
20. It is also further stated in the counter-affidavit that from out of the master question booklet, prepared for 90 questions, four (4) different sets of papers were prepared jumbling those 90 questions, and issued to the candidates and the claim of the petitioners that there are 12 wrong questions, is thus, factually incorrect.
21. By the said counter, the respondents would also contend that the marks secured by each candidate were made available along with OMR sheets against their hall ticket number, to ensure transparency, whereby a candidate can verify as to the number of questions he/she had attempted, the correct answers for which he/she had secured full marks and also the questions attempted by a candidate with wrong answers attracting negative marking; and that it has been specified in the notification as well as in the question paper under the head 'instructions' that wrong answers would attract negative marking.
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22. The respondents by the counter affidavit would further contend that since the date of issuance of notification i.e., 03.11.2021, till the conduct of examination, no representation has been received from any candidate, much less from any of the petitioners, with regard to the contentions raised in the present writ petitions; and that the highest mark secured has no bearing on the prospects of other candidates or process of selection, as the candidates will be selected from the applicants who appeared for the written examination subject to their performance, rule of reservation, zone and other applicable criteria.
23. It is further contended that inasmuch there is no minimum qualifying mark or pass percentage criteria and that the selection of candidates would be made on the basis of the marks secured by the candidates having higher marks in the written examination, no fault can be found in the selection process undertaken, inasmuch as the entire selection process is being undertaken in transparent manner.
24. It is further contended that the petitioners, after the marks secured were made available along with the OMR sheet on 18.01.2022, having found that they have not performed well in the written examination, have chosen to file the present writ petitions, which do not merit consideration and are liable to be dismissed.
25. Insofar as challenge on the other ground of non-application of rule of reservation, while denying the writ averment, it is stated that the said 9 contention of the petitioners is frivolous in nature and is a clear attempt to scandalize the conduct of examination, as no proof is submitted nor any issue was raised in this regard after the issuance of notification.
26. I have taken note of the submissions made on both the sides.
27. Before adverting to the respective contentions urged, it is to be noted that in service jurisprudence, recruitment is undertaken through two types of selection process/modes, viz., (i) by open competitive exam and (ii) limited competitive exam. While the criteria for selection through open competitive exam is elaborate and descriptive, in the case of recruitment through limited competitive exam, the selection criteria stands on a different footing and is restrictive like from and amongst certain category of employees, educational qualifications etc. The above view is supported by the decision of the Supreme Court in S.S.Sharma v. Union of India2.
28. In the facts of the present case, since the selection is restricted to Anganwadi Teachers (women), on account of their special eligibility, and are allowed to compete at the exam to be held for selection from and among such candidates the selection process is to be held as through 'limited competitive exam'. In other words, an open competitive exam is general in nature where the participation is extended to a wide variety of individuals fulfilling the eligibility criteria prescribed, whereas in a limited competitive examination, the 2 1981 SCR (1) 1184=1981 AIR 588 10 participation is restricted only to select few individuals, who fulfill the said eligible criteria prescribed under the notification. Thus, discretion is vested in the hands of the authority conducting the exam to specify such criteria which may be different for an open competitive exam and a limited competitive exam. The Patna High Court had an occasion to consider different selection criteria being applied for limited competitive examination in the case of Arti Kumari Singh v. The Patna High Court3.
29. On the basis of the above, I now proceed to examine the impugned notification dt.03.11.2021.
Consideration by the Court:
30. A reading of the impugned notification issued by the respondents would indicate that the said notification is not a general notification issued for selection through open competitive examination. The eligibility criteria prescribed in the notification clearly indicates that only the Anganwadi Teachers (AWT) who are all women, having the prescribed qualification are only eligible to make application under the above said notification. There is a clear mention in the notification as regards educational qualifications, age, and the period of service, even in respect of Anganwadi Teachers, who can apply for the above said vacancies. Thus, the notification as issued would have to be considered as a notification issued for selection of candidates through limited 3 2019 SCC OnLine Pat 1802 11 competitive examination, inasmuch as the same is restricted only to Anganwadi Teachers and others are not eligible to apply for the said post. In the selection process which is undertaken through limited competitive examination, possessing of required qualifications prescribed would act as an entry barrier, and there need not be a cut-off mark or qualifying mark to select candidates taking part in such limited exam. Thus, mere non-prescription of qualifying mark would not vitiate the selection process as discussed infra.
31. In some what similar challenge laid before the Allahabad High Court in the case of Durgesh Pratap Singh v. State of U.P4, it was held at para 26 as under:
"26. It is admitted to the respondents that the pattern and ratio of questions in the second paper in the main written examination was somewhat changed and that instead of 75 questions for testing numerical ability, less than 50 questions were provided in the question paper. It has been submitted that this change vitiated the selection inasmuch as the candidates who had special aptitude in numerical ability and had devoted a large part of their preparations for the questions in numerical ability, were discriminated and that changing of the pattern affected the time management during the examination. Much emphasis was laid by the counsels appearing for the petitioners with regard to increase in the questions relating to general knowledge and awareness. In a public examination for the purpose of recruitment in training, the change in the pattern of questions and increasing the number of questions in respect of general knowledge and general awareness, and consequently reducing the question relating to numerical ability, is not of any consequence. All the petitioners were subjected to the 4 2004 SCC OnLine All 224 12 same examination. The advertisement cannot be said to have held out any promise, nor the principle of promissory estoppel can be pressed into service. The advertisement is only an indication about the method and manner in which the candidate will be put to test for selection. There is no statutory rule prescribing the number of questions or marks allocated to any subject. The submission that instead of 75 questions only 48 questions of numerical ability were asked, will not vitiate the main written examination."
32. The Special Leave Petition (SLP) to the Supreme Court against the said order has been dismissed on 21.08.2009 in S.L.P. (Civil) No. 19665 of 2009.
33. In so far as the challenge made on the ground of question paper prepared and issued to the candidates at the written examination conducted, was tough and the time provided to answer the same was not sufficient, it has not been argued by the learned counsel for the petitioners before me, that the question paper issued having questions outside the syllabus mentioned in the notification. That apart, once it is admitted that the questions are within the syllabus prescribed, this Court cannot don the role of exam supervisor to go into the issue of toughness of the question paper issued or the time provided to answer the same being insufficient, inasmuch as it was made known to all the candidates by the notification that the written exam will contain objective type questions numbering to 90 and the time provided therefor is 90 minutes. Since, it is not the contention of the petitioners that the question paper issued contained any questions out of the syllabus mentioned in the notification, on the mere plea of the petitioners that the question paper was tough and that 13 the time provided for answering the same being not sufficient, cannot be the basis for this Court to interfere in the conduct of such examination.
34. Insofar as the other claim of the petitioners that while the notification issued specified the written exam to be for 45 marks, the question paper issued had mentioned the same to be for 90 marks and thus, the same is contrary to the notification condition, also cannot be accepted, for the reason that mere assignment of a higher mark for evaluation and scaling it down equally for all the answers given by itself would not cause any prejudice to the candidates appearing in the exam.
35. In the facts of the present case, though the notification had prescribed half mark for each question, while the question paper issued had specified that each question would carry one mark, since, after evaluating the OMR sheets through which the candidates were required to select the correct answer, the total marks secured having been scaled down to half, would result in making each question to half mark as per the notification condition.
36. Further, as all the questions carried equal marks, mere evaluation of OMR sheets for one mark and scaling it down to 45 marks and declaring the marks secured by each candidate after deducting the negative marks for wrong questions attempted, in the view of this Court cannot be said to be vitiating the entire selection process. Assuming, that if no mention is made on the top of question paper as to the marks as 90, the petitioners would not have even known as to whether the answers given by them for each question 14 is being evaluated for one mark or for half mark, since there is no change in the number of questions specified as per the notification issued or the pattern of allocation of marks like one section of questions having higher marks and the other section having lesser marks etc. This can also be looked from another angle. The respondents without mentioning 90 marks, if only had mentioned that each question would carry equal mark for the purpose of evaluation of the answer sheets, the petitioners cannot claim to have any grievance. It is only on account the slip made by the respondents, the petitioners are seeking to project the same as being contrary to the notification and adopting non transparent method.
37. Thus, this Court finds the explanation given by the respondents by their counter, that the mentioning of 90 marks in the paper book is only for the purpose of convenience of evaluation, is an acceptable defence and no fault can be found with the said method/procedure adopted.
38. Further, the claim of the petitioners that as a result of the question paper being issued for 90 marks with each question carrying one mark and no minimum qualifying mark having been prescribed, thereby, making all the candidates whoever have applied as eligible to take part in the selection process as being illegal, it is to be seen that mere prescription of a qualifying mark and securing such qualifying mark by itself would not confer any right on a candidate for being selected. However, since the selection under the notification is a limited competitive selection, undertaking of selection from 15 and among such limited candidates on the basis merit based on the marks secured cannot be said as invalid method of selection. Further, the challenge by the petitioners on this ground does not appeal to this Court for being countenanced, as the petitioners did not raise any voice against the 'process of selection' or the 'eligible criteria' or 'scheme of examination' and procedure prescribed under the notification. Thus, the claim of the petitioners that as a result of the respondents not specifying minimum qualifying mark or specifying that there are no qualifying marks and every candidate who has taken part in the exam is eligible to be considered and that the vacancies would be filled on the basis of the marks secured, is contrary to the scheme of examination, is also without any merit, for the reason that it is always open for the authority to prescribe the process of selection.
39. The reliance placed by the petitioners on the decision of the Supreme Court in K.Manjusree's case (1 supra) to claim that the rules of game cannot be changed either while the game is being played or after it is played, the rules of the game in the view of the this Court, for the purpose of the notification under consideration are : (i) educational qualification, which in the facts of the present case, is prescribed as possessing SSC as one time measure with a condition to acquire the required educational qualification of degree within 5 years after selection as Extension Officer Grade-II; (ii) having 50 years and below of age, as on 01.01.2016, with relaxation granted as one time measure in terms of G.O.Rt.No.57, dated 02.07.2018; and (iii) having ten 16 years of continuous service as Anganwadi Teacher, as on 01.07.2021. The petitioners do not dispute that none of the above conditions as to the eligibility criteria specified in the notification stand altered. Once, the eligibility criteria is not altered after issuance of the notification or after the conduct of examination, the principle laid down in K.Manjusree's case (1 supra), does not get attracted and thus, the reliance placed on the same is misplaced.
40. Further, the claim of the petitioners that non-prescription of minimum marks in an examination is unknown and there need to be minimum marks prescribed, in order to know whether a candidate has qualified or not, as stated above, since the selection process is through limited competitive examination restricted to AWTs, it is always open for the respondents to prescribe the mode of selection, which in the facts of the present case is on the basis of merit of the candidates who have taken part in the examination conducted. Mere non-specification of the minimum qualifying mark would not by itself make the conduct of the selection process through written exam illegal or adopting non-transparent procedure for it to be declared as invalid.
41. However, in case where no minimum marks are prescribed, it is obvious that the selection takes place through merit, and on that basis, the candidates, against the vacancies notified, would be selected. Therefore, the contention of the petitioners that no minimum marks were prescribed making the entire selection process vitiated, is liable to be rejected.
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42. It is apposite to refer to the judgment of the Supreme Court in K.Manjusree's case (1 supra), on which, reliance was placed by the petitioners themselves, wherein it was held at para 33 that an authority conducting exam may or may not prescribe minimum marks, which reads as under:
'33. The Resolution dated 30-11-2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.' 18
43. A reading of the above, it would clear that mere non-prescription of minimum marks thus by itself does not vitiate or make the conduct of exam invalid.
44. This Court also finds no substance in the claim of the petitioners that the respondents after conducting the examination on 02.01.2022 having issued communication mentioning that there are no pass marks for the exam conducted and the selection to the vacancies would be made from and among the 16,815 candidates on the basis of their marks secured in the written examination, as amounting to change of selection criteria in the midstream.
45. The Supreme Court in the case of Yogesh Yadav v. Union of India5, held that 'no' fixation of bench mark, would not amount to change in the criteria of selection in the midstream, when there is no such stipulation in that regard.
46. In the facts of the present case, as noted above, though the notification under the heading 'process of selection' mentions of minimum qualifying marks, in the absence of such mark being specified and on the other hand making all the candidates who have taken part in the examination as eligible for being considered based on the marks secured in the written examination, cannot be considered as change of selection criteria.
5 (2013) 14 SCC 623 19
47. Further, it is also to be seen that after issuance of Notification No.501/2021 dt.03.11.2021, 16,815 AWTs, including the petitioners, having applied, no deficiency or fault was found/noticed by any one of them with regard to the procedure of selection. Further, the petitioners even after submitting their applications, which were duly processed, whereafter the date for conducting written examination on 02.01.2022 was notified, and the petitioners being issued with hall tickets to take part thereat, and the petitioners actually having taken part in the written examination, till the date of respondents releasing the final key on 18.01.2022, did not find any flaw in the process adopted by the respondents. It is only after the respondents have released the final key, the present writ petition came to be filed on 24.01.2022. Thus, the conduct of the petitioners in keeping silent all through the period of two months i.e. from the date of notification till the release of the final key, would only go to show that the claim made by the petitioners now after going through the process by submitting application and taking part in the examination without any protest or demur is not genuine and are precluded or prevented from challenging the process of selection/criteria as being illegal and arbitrary.
48. The Supreme Court in Ashok Kumar v. State of Bihar6, had held at para 13 as under:
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(2017) 4 SCC 357 20 "13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla7, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar 8, this Court held at para 18 that:
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil9 and Rashmi Mishra v. M.P. Public Service Commission10)."
49. The Supreme Court in Madan Lal v. State of Jammu and Kashmir11 also held that a candidate having participated in selection process without any protest, cannot be allowed to question the very process having failed to qualify.
50. In the light of the settled position of law, as detailed above, the petitioners, in all these writ petitions, having not raised any objection to the 'process of selection' from the date of issuance of notification, submission of application till the final key was released on 18.01.2022 for the written 7 (2002) 6 SCC 127 8 (2007) 8 SCC 100 9 (1991) 3 SCC 368 10 (2006) 12 SCC 724 11 (1995) 1 SCR 908 21 examination held on 02.01.2022, cannot now term the procedure adopted as being illegal, arbitrary and non-transparent.
51. However, having regard to the fact that there is an apprehension of the respondents adopting non transparent mechanism for selection of candidates, and also taking note that negative marking system is applied, this Court is of the view that the respondents can be directed to disclose / display the marks of all the candidates who have taken part in the written examination, the marks for correct answers, negative marks and the net marks secured as per evaluation of OMR sheets and the scaled down marks on the basis of which selection process is undertaken.
52. For all the above reasons, this court is of the considered view that the challenge in these writ petitions to Notification No.501/2021, dt.03.11.2021 issued by the 3rd respondent is without merit and the writ petitions are liable to be dismissed and are accordingly dismissed.
53. Pending miscellaneous petitions, if any, in these writ petitions shall stand closed. No order as to costs.
_________________ T. VINOD KUMAR, J Dt:25.11.2022 GJ 22 THE HON'BLE SRI JUSTICE T. VINOD KUMAR WRIT PETITION Nos.3691, 3882, 4366, 4900 and 5064 of 2022 .11.2022 GJ