THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.18748 OF 2023;
WRIT PETITION NO.15680 OF 2023;
WRIT PETITION NO.16901 OF 2023;
WRIT PETITION NO.17079 OF 2023;
WRIT PETITION NO.17490 OF 2023
AND
WRIT PETITION NO.18078 OF 2023
COMMON ORDER
In all of these Writ Petitions, the common issue raised by the
petitioners is that respondent No.2 has not considered the objections
raised by the petitioners and others to the preliminary key published by the respondents pursuant to the final written examination conducted on 30.04.2023 for the posts of SCT PC Civil and/or Equivalent, etc., through Notification vide Rc.No.41/Rect./Admn-1/2022, dated 25.04.2022, as illegal, arbitrary, discriminatory and in violation of principles of natural justice and consequently to direct the respondents to delete the wrong questions and/or wrong options of the questions challenged and to re-evaluate the petitioners' OMR sheets by adding marks to the questions where wrong options were given and to direct respondent No.2 not to publish the Provisional Selection List until the petitioners' OMR sheets are re-evaluated in accordance with the final W.P.No.18748 of 2023 2 & Batch (Total 6 cases) key arrived at after considering the objections raised by the petitioners to the questions and the answers thereto and to pass such other order or orders.
2. Brief facts leading to the filing of the present Writ Petitions are that respondent No.2 has issued a Notification vide Rc.No.41/Rect./ Admn-1/2022, dated 25.04.2022, for the post of SCT PC Civil and/or Equivalent, etc., and the written examination was conducted on 30.04.2023 and the respondents made available the Preliminary Key to the question paper on the official website: www.tslprb.in from 22.05.2023 onwards. The candidates were given an opportunity to submit their objections to the Preliminary Key latest by 5 p.m. on 24.05.2023 by uploading the supporting documents/materials in pdf/jpeg format, as attachments. It is submitted that the petitioners and many others have submitted their objections along with relevant material and thereafter, the final key was published along with results on 30.05.2023 which was made available on the Home page of www.tslprb.in. The petitioners submit that except a few, none of the objections raised by the petitioners have been taken into consideration while arriving at the final key and hence, the present Writ Petitions have been filed.
W.P.No.18748 of 2023
3 & Batch (Total 6 cases)
3. It is submitted that for conduct of examination, there were four Booklet Codes issued i.e., A, B, C, D, containing the same questions, but numbers are jumbled. The questions for which the objections are now raised in these Writ Petitions are in respect of Booklet Code-C and Booklet Code-B and total number of questions for which the objections are raised by all the petitioners herein are 23. The petitioners have given their reasons for the objections raised by them to the answers given by the respondents in the final key and the respondents have also filed a counter affidavit stating that the objections raised by the candidates have been considered by the Expert Committee and that the final key by the Committee was published on 30.05.2023.
4. In W.P.Nos.18078, 17079, 15680 and 18748 of 2023, the objections raised are in respect of the following questions in Booklet C - 21, 42, 57, 72, 75, 84, 93, 94, 96, 99, 102, 117, 122, 130, 144, 147, 175, 176 and 186.
5. In W.P.Nos.16901 and 17490 of 2023, the objections raised are in respect of the following questions in Booklet B - 47, 52, 60, 73, 75, 80, 89, 103, 123, 127, 132, 138, 141, 142, 149, 150 and 194.
W.P.No.18748 of 2023
4 & Batch (Total 6 cases)
6. The corresponding questions in Booklets B and C as given in the written instructions/counter affidavit of the respondents are as follows:
Question Numbers Book Code- 65 95 127 75 80 180 150 194 47 123 61 B Book Code- 72 75 94 96 102 144 147 175 42 84 93 C Question Numbers Book Code- 22 93 B Book Code- 21 126 57 99 117 122 130 176 186 132 160 170 C Thus, it is noticed that the respondents have given the justification for the final key in respect of the answers to 13 questions only. In respect of other questions, the respondents are silent.
7. At the time of hearing, the learned respective Senior Counsels appearing for the petitioners submitted that the petitioners are not pressing their objections for the Questions No.42, 72, 96, 170 and 186 in Booklet-C and the corresponding questions in Booklet-B in all the Writ W.P.No.18748 of 2023 5 & Batch (Total 6 cases) Petitions and therefore, these five questions are not pressed by the petitioners.
8. In respect of other questions, it is noticed that there are three questions i.e., Questions No. 122, 130 and 144 in booklet C in respect of which the objection is that the question and answers thereto have not been translated into Telugu, but have only been given in trans-literature and hence, cannot be considered as translated and held in Telugu language.
9. Learned counsel for the petitioners submitted that the question paper was required to be bilingual, i.e., both in English and Telugu and the respondents ought to have translated the questions and the respective answers into Telugu, whereas they have just given either the questions in English or answers in English but in Telugu script and therefore, the questions cannot be considered as properly given in Telugu and therefore, the marks for these questions will have to be awarded to the candidates who have opted to write the examination in Telugu irrespective of the correctness of the answers given by them.
10. In respect of Question No.57, learned counsel for the petitioners submitted that there is a spelling mistake given in one of the options, W.P.No.18748 of 2023 6 & Batch (Total 6 cases) due to which there was bound to be confusion in the minds of the candidates about the correctness of the option and though said mistake was pointed out to the respondents, they are not ready to accept the mistake and the petitioners are going to suffer by their indifferent attitude and therefore, the question should either be excluded or marks should be awarded for the said question to all the candidates. In respect of other questions i.e., 21, 75, 93, 99, 117, 132, 147, 160 and 176, it is submitted that for each of the questions, there is a possibility of more than one answer and therefore, the questions should be referred to the Expert Committee again for a decision on the answers. He therefore, prayed that the respondents be directed to reconstitute an Expert Committee with new members to re-analyse the questions and answers and re-evaluate the OMR Sheets of the candidates and announce the results thereafter.
11. Learned counsel for the petitioners have placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Bihar Staff Selection Commission and Others Vs. Arun Kumar and Others 1, wherein it was observed that where previous re-evaluations were not 1 (2020) 6 SCC 362 W.P.No.18748 of 2023 7 & Batch (Total 6 cases) correct or accurate, a direction for revision of results in a public examination is justified. He also relied upon the common order of this Court in W.P.No.47010 of 2018 and batch and W.P.Nos.11810 and 18335 of 2020, wherein, this Court had directed the respondents to constitute a Committee and refer the questions to the Expert Body consisting of subject Experts to see as to whether all the 19 questions were appropriately framed and the answers to those 19 questions are correct, as determined in the final key. It was also directed in the said case that the Committee shall examine the issue of 14 questions which were printed in English language without being translated into Telugu language. Therefore, the learned counsel prayed that in these cases also, this Court may direct the respondents to re-constitute an Expert Committee and re-evaluate the papers and thereafter, finalise the selections.
12. Learned Special Government Pleader for Home, on the other hand, submitted that an Expert Committee has been formed, which has gone into all the objections received from the candidates and thereafter only, the final key was published. It is submitted that this is the procedure/practice being followed since decades. It is also pointed out W.P.No.18748 of 2023 8 & Batch (Total 6 cases) that in all the notifications, it is prominently mentioned that in case any dispute about any question or answer arises, the decision taken by the Subject Expert Committee shall be final. It is also submitted that the Board does not prescribe any particular text book or publication and is not bound by the material appearing in any book or publication. He also placed reliance upon the decision of a Division Bench of this Court in similar case in W.A.No.37 of 2019 and I.A.No.1 of 2019, wherein this Court has observed that the selection process is regulated by a set of rules and the Board has the requisite operation procedure to carry forward. He also placed reliance upon the decision of Hon'ble Apex Court in the case of Ran Vijay Singh Vs. State of U.P. and others 2, wherein it was held that "with the materials on record, we cannot but hold that if at all there is any doubt in relation to the questions vis-à-vis the answers, the benefit of doubt should go to the examiner, i.e., the Board which conducts the test and not otherwise. It would be inappropriate to order deletion of those questions and recast the remaining result." The learned Special Government Pleader further submitted that the academic exercise concerning the questions is dealt 2 (2018) 2 SCC 357 W.P.No.18748 of 2023 9 & Batch (Total 6 cases) with in a confidential process like recruitment at various stages including (a) paper setting, (b) determination of preliminary key, (c) resolution of objections on preliminary key and determination of final key and (d) any other connected miscellaneous issues. It is submitted that the Subject Experts are consulted at every stage of the process and wherever their recommendations are necessary and therefore, the allegations of the petitioners are baseless. It is further submitted that no material is placed before this Court by the petitioners that the objections now raised by the petitioners were raised by the petitioners against the preliminary key and submitted that there cannot be an endless exercise of re-evaluation of papers. It is thus submitted that the Writ Petitions are not maintainable and are liable to be dismissed. He further placed reliance upon the counter affidavit in which the answers given by the Selection Committee along with the reasons for arriving at such answers are reproduced.
13. The learned counsel for the petitioners, however, referred to the rejoinder filed by the petitioners to the counter affidavit to submit that the respondents have not applied their minds to the objections raised by W.P.No.18748 of 2023 10 & Batch (Total 6 cases) the petitioners and therefore, the Committee formed with some other members should be directed to re-look into the matter.
14. Having regard to the rival contentions and the material on record, this Court finds that the petitioners have challenged the answers to certain questions published in the final key arrived at by the Expert Committee for the examination conducted for the post of SCT PC Civil for the final written examination held on 30.04.2023. In order to adjudicate this issue, this Court finds support from the decision of the Hon'ble Supreme Court in the case of Ran Vijay Singh Vs. State of U.P. and others (2 supra), wherein the Hon'ble Supreme Court was considering the case of the examination conducted by U.P. Secondary Education Services Selection Board for recruitment of trained graduate teachers and the result of the written examination was declared and the unsuccessful candidates had filed Writ Petitions in Allahabad High Court. All the Writ Petitions were dismissed by a learned Single Judge holding that there was no provision for re-evaluation of answer sheets by U.P. Secondary Education Services Selection Board Act, 1982 and the Rules framed thereunder. However, another batch of Writ Petitions came to be listed before another learned Single Judge of the High Court W.P.No.18748 of 2023 11 & Batch (Total 6 cases) who admitted the said Writ Petitions and held that the 7 questions which were challenged had incorrect answers and that out of the 7 questions, the answers given were incorrect and therefore, a direction was given to re-evaluate the question papers and declare the result and if the writ petitioners were selected on such re-evaluation, those at the bottom of the select list would automatically have to be pushed out. The matters were thereafter carried to the Hon'ble Supreme Court and the Hon'ble Supreme Court has observed that in Kanpur University and others Vs. Samir Gupta and others 3, the Apex Court has taken the view that the key-answers 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 rationalisation but 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 it as correct. Therefore, it was observed that such burden was on the candidate and that the said burden is rather heavy on the candidate and the Constitutional Courts must be extremely cautious in entertaining a plea challenging the correctness of a key-answer and to prevent such 3 AIR 1983 SC 1230 : 1984 SCR (1) 73 W.P.No.18748 of 2023 12 & Batch (Total 6 cases) challenges, the Court recommended the steps such as (i) establishing a system of moderation; (ii) to avoid any ambiguity in the questions, including those that might be caused by translation; (iii) prompt decision be taken to exclude the subject question and no marks be assigned to them. The Hon'ble Supreme Court further observed that the principle laid down by the Apex Court in Maharashtra State Board of Secondary and Higher Education Vs. Paritosh Bhupesh Kumar Seth 4 was affirmed by the Apex Court in its decision in the case of The Secretary, West Bengal Council of Higher Secondary Education Vs. Ayan Das and others 5, wherein it was reiterated that there must be finality attached to the results of a public examination and in the absence of statutory provision, re-evaluation of answer scripts cannot be permitted and that it could be done only in exceptional cases and as a rarity. Further, the Hon'ble Supreme Court has observed that the Court should presume the correctness of key-answers and proceed on that assumption and in the event of a doubt, the benefit should go to the examination authority rather than to the candidate. The Court also observed that sympathy or compassion does not play any role in the 4 (1984) 4 SCC 27 5 Appeal (Civil) No.4560 of 2007 dt.28.09.2007 W.P.No.18748 of 2023 13 & Batch (Total 6 cases) matter of directing or not directing re-evaluation of an answer sheet and if an error is committed by the examination authority, the complete body of candidates suffers and 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. It was observed that all candidates suffer equally, though some might suffer more, but that cannot be considered as material for setting aside an examination since mathematical precision is not always possible. It was observed that the Apex Court has shown one way out of an impasse, i.e., exclude the suspect or offending question. This decision of the Division Bench of the Apex Court was reaffirmed by the Larger Bench of the Hon'ble Supreme Court in the case of Vikesh Kumar Gupta and another Vs. State of Rajasthan and others 6. The Hon'ble Supreme Court held that though re-evaluation can be directed if rules permit, but that the Court has deprecated the practice of re-evaluation and scrutiny of the questions by the Courts which lack expertise in academic matters. It was further held that it is not possible for the High Court to examine the question 6 (2021) 2 SCC 309 W.P.No.18748 of 2023 14 & Batch (Total 6 cases) paper and answer sheets by itself, particularly when the Commission has assessed the inter se merit of the candidates and the Courts have to show deference and consideration to the recommendation of the Expert Committee which have expertise to evaluate and make recommendations. As regards the scope of judicial review with regard to re-evaluation of answer sheets, the Larger Bench of the Hon'ble Apex Court has referred to its decision in the case of Ran Vijay Singh Vs. State of U.P. and others (2 supra) that the Court should not re-evaluate or scrutinise the answers of a candidate as it has no expertise in the matter and the academic matters are best left to academics. The Hon'ble Supreme Court concluded that it was not open to the Division Bench of the High Court to examine the correctness of the questions and the answer-key to come to a conclusion which is different from that of the Expert Committee and has referred to its earlier decision in the case of Richal Vs. Rajasthan Public Service Commission 7 where the Hon'ble Supreme Court interfered with the selection process only after obtaining the opinion of an Expert Committee but did not enter into the examination of the correctness of the questions and answers by itself.
7
(2018) 8 SCC 81
W.P.No.18748 of 2023
15 & Batch (Total 6 cases)
Thus, it was concluded that Courts should be very slow in interfering with the expert opinion in academic matters and the assessment of the questions by Courts itself to arrive at a correct answer is not permissible. The Hon'ble Supreme Court in the case of Bihar Staff Selection Commission and others Vs. Arun Kumar and others 8 (relied upon by the learned counsel for the petitioner) also has held that the scope of judicial review under Article 226 of the Constitution of India in matters concerning evaluation of candidates, particularly for purpose of recruitment for public services is narrow and in the absence of any provision for re-evaluation of answer sheets, judicial review should be exercised only under exceptional circumstances. The Division Bench of this Court in W.A.No.37 of 2019 and I.A.No.1 of 2019 has observed that if there is any doubt in relation to the questions vis-à-vis answers, the benefit of doubt should go to the examiner, i.e., the Board which conducts the test and not otherwise. Thus, we are guided by the decision of the Hon'ble Apex Court in Ran Vijay Singh Vs. State of U.P. and others (2 supra) in this regard.
8 Civil Appeal Nos.2414 - 2416 of 2020 dt.06.05.2020 W.P.No.18748 of 2023 16 & Batch (Total 6 cases)
15. In view of the same, this Court is of the opinion that under Article 226 of the Constitution of India, this Court cannot go into the correctness or otherwise of the answers in the final key to the questions prepared by the Board as the final key was published only after the Expert Body/Committee has looked into the objections received from the candidates. Therefore, for the objections raised by the petitioners to the questions No.21, 75, 93, 99, 117, 132, 147, 160 and 176 that there are more than one possible answers, this Court cannot go into the correctness or otherwise of the same and the decision of the Expert Body has to be accepted as final.
16. However, with regard to questions No.122, 130 and 144, it has been demonstrated clearly that the questions were given in Telugu script but either the questions or the answers to them were in English. Therefore, it is evident that there is no proper translation in Telugu in respect of these questions. For the purpose of clarity and ready reference, the relevant questions and answers are reproduced hereunder.
W.P.No.18748 of 2023
17 & Batch (Total 6 cases)
W.P.No.18748 of 2023
18 & Batch (Total 6 cases)
On a bare perusal of the said questions and the answers thereto, it is clear that the Board has not provided for true translation of the English words which have been referred to in the questions or the answers. The argument of the learned Special Government Pleader was that only graduates were eligible to write the examination and therefore, they were expected to understand the questions and answers given thereunder cannot be accepted. Once the Board has clarified that the examination would be conducted in both languages, i.e., English and Telugu, they are required to give the questions and answers translated in both languages. The Hon'ble Supreme Court in the case of Ran Vijay Singh Vs. State W.P.No.18748 of 2023 19 & Batch (Total 6 cases) of U.P. and others (2 supra) has observed that if an error is committed by the examination authority, the complete body of candidates suffers and therefore, the entire examination process does not deserve to be derailed. It suggested that in such circumstances, the answer would be that such questions would have to be excluded in order to give parity to all the candidates.
17. Therefore, this Court deems it fit and proper to direct the respondents to delete the marks to all the candidates for questions No.122, 130 and 144 since the Telugu medium candidates were put to disadvantage because of non-translation of the said questions or answers into Telugu language.
18. In respect of Question No.57 also, this Court finds that there is a spelling mistake given in option 1, i.e., instead of mentioning it as 'Paradeep Port', it is mentioned as 'Pradeep Port' and Paradeep is admittedly in Gujarat and the question was to identify the State where Port is located and match the Ports with the States. Since the name of the Port itself is given wrongly, there is every possibility that the candidates would have given a wrong option. Therefore, this Court is of the opinion that the marks for this question also have to be excluded.
W.P.No.18748 of 2023
20 & Batch (Total 6 cases)
19. In view of the same, the Writ Petitions are allowed to the extent of directing the respondents to exclude the marks given to the Questions No.122, 130 and 144 which were not translated into Telugu in respect of all the candidates and also to exclude the mark for Question No.57 for the reason given above and re-evaluate the papers and publish the provisional selection list accordingly and thereafter proceed with the selection process. No order as to costs.
20. Pending miscellaneous petitions, if any, in all these Writ Petitions shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 09.10.2023 bak/Svv