Nand Kishore & Ors. vs Delhi Subordinate Services ...
2010 Latest Caselaw 3140 Del

*             HIGH COURT OF DELHI : NEW DELHI

+          WP (C) No. 11522/2010


Nand Kishore & Ors.                      .....       Petitioners
                      Through: Mr. Ajay Kumar, Adv.

                      Versus

Delhi Subordinate Services
Selection Board                         .....       Respondent
                     Through: Ms. Zubeda Begum with
                              Ms. Sana Ansari, Advs.

                                  AND

             WP (C) No. 12461/2009

Sheetal & Ors.                           .....        Petitioners
                      Through: Mr. Ajay Kumar, Adv.

                      Versus

Delhi Subordinate Services
Selection Board                         .....       Respondent
                     Through: Ms. Zubeda Begum with
                              Ms. Sana Ansari, Advs.

                                  AND

             WP (C) No. 14071/2009

Sandeep Rana & Ors.                      .....        Petitioners
                      Through: Mr. Ajay Kumar, Adv.

                      Versus

Delhi Subordinate Services
Selection Board                          .....       Respondent
                     Through: Mr. S.Q. Kazim with Mr. Alim
                              Mizaj and Mr. Haris Usmani, Advs.

Judgment reserved on              : June 02, 2010
Judgment pronounced on            : July 07, 2010

Coram:


WP (C) No. 11522/2010, WP (C) No. 12461/2009
& WP (C) No. 14071/2009                                       Page 1 of 9
 HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        No

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes

MANMOHAN SINGH, J.

1. The present writ petitions have been filed by the petitioners

under Article 226 of the Constitution of India against the respondent for

carrying out arbitrary and incorrect marking by ill-equipped teachers in

the examination conducted on 15.02.2009 for the post of Assistant

Teacher (Primary). Following is the relief sought by the petitioners :

a. call the record of the evaluators and all the answer sheets of

the Petitioners, first thirteen toppers of the Pre-Exam/Part-I of the

impugned primary teacher exam and ten copies of the toppers of

the Main Exam/Part-II of the impugned primary teacher

examination.

b. to set an inquiry against the respondent to check the drastic

irregularity in the examination pattern and irregularity in the

appointment of the evaluators of the Part-II main impugned

examination A-1.

c. if the evaluators are non-expert of the subjects/questions given

in question paper of Part-II of the impugned primary teacher

examination then either direct the re-evaluation of the whole of

the Part-II Answer sheets by competent subject experts or strike

WP (C) No. 11522/2010, WP (C) No. 12461/2009

(sic) down the impugned examination A-1.

2. The petitions under consideration are inter-connected as the

petitioners in all three petitions appeared for the above mentioned

examination in the hope of being appointed to the post of Assistant

Teacher (Primary) and therefore, as the facts and contentions as well as

the allegations are similar, the petitions shall be considered and adjudged

by this common order and it is not necessary to exposit them separately.

3. The common facts on which the petitions have been filed are

that the defendant published an advertisement in various newspapers with

regard to vacancies for the post of primary teachers in MCD schools

which was responded to by the petitioners. An exam was carried out for

the said post on 15.02.2009 which consisted of two portions, Part-I which

had objective type questions and was a qualifying test and Part-II which

had subjective type questions and was merit based.

4. The main grievance of the petitioners is that there is a wide

disparity between the marks obtained by them in Part-II of the above said

examination which are shockingly less and the marks obtained by them in

Part-I of the same examination as well as by the marks obtained by most

other examinees in Part-II of the exam. This disparity has been

underscored by various details including the fact that the first thirteen

toppers of Part-I of the exam have not been selected in Part-II of the

exam. Thus the present writ petitions have been filed.

5. It is alleged by the petitioners that the answer sheets of Part-II

WP (C) No. 11522/2010, WP (C) No. 12461/2009

of the examination have been checked by non subject experts who are not

qualified enough to check the same and in fact have no connection with

the subjects concerned which is why the marking has been incongruent

and arbitrary. Further, no instructions or key-answers were given to any

of the examiners to aid them in the process of correcting the answer

sheets, thereby resulting in wrong and random checking. Various other

allegations have been leveled at the respondent such as that there was

lack of planning the logistics of the examination, the language in which

the questions were to be answered was changed from the option of

English or Hindi to mandatorily Hindi on the day of the examination etc.

Further, the teachers who checked the answer sheets have been alleged to

not have been connected to the Hindi language as well, making it

impossible for them to correctly check the same.

6. On these grounds the petitioners have sought that the answer

sheets of the petitioners, toppers of Part-I of the examination and toppers

of Part-II of the examination be called along with the record of the

evaluators who checked the same; that an inquiry be initiated against the

respondent to check the irregularity in the examination pattern and in the

appointment of the evaluators of Part-II of the examination and if it is

found that the examiners were non experts, to direct re-evaluation of Part-

II of the examination or to strike down the entire examination. The

petitioners have also placed on record copies of the Part-II question

papers, list of petitioners with the marks secured by them in Part-I and

Part-II of the examination, typed copy of the result of the first thirteen

WP (C) No. 11522/2010, WP (C) No. 12461/2009

toppers of Part-I and Part-II of the examination, copies of part of the

result and copies of answer sheets of Gayatri and Nikita Gupta and their

own answer sheets as well.

7. I have perused the record and submissions made by both the

parties. The questions on which this entire matter hinges are (i) whether

there was any irregularity in the appointment of the examiners who

checked the answer sheets of the petitioners, (ii) whether the said

examiners were non experts and whether if so, re-evaluation of Part-II of

the examination can be directed or the entire exam struck down.

8. The respondent has submitted that there has been no

irregularity in appointing the examiners of the answer sheets as the

selection process is very transparent and it is the Directorate of Education

which considers various parameters and then forwards the names of

responsible officers for conducting evaluation work to be done by the

respondent. The teachers recommended for selection work under the

domain of the Directorate of Education and the same cannot be

disregarded as not qualified enough to carry out the work they are

selected to do. Further, it must be kept in mind that the selection process

undertaken by the respondent was for the post of school teachers at the

Primary level i.e. up to Class V.

9. It has been argued that there can be no question of bias in the

minds of the examiners and no disparity in their evaluation as the policy

followed by the respondent in this regard is that the examiners never

know the identities of the examinees as the respondent follows a

WP (C) No. 11522/2010, WP (C) No. 12461/2009

confidential system of dummy roll numbers. Further, the evaluated answer

sheets are counter checked by another examiner to minimize the chances

of any error or discrepancy.

10. As regards the disparity between the scores obtained in Part-I

and Part-II of the examination, the respondent has countered that both

Parts have different consequences insofar as Part-I is only a qualifying

exam and the competency of the examinees cannot be adjudged on Part-I

as the same only qualifies which examinees shall be eligible to appear for

Part-II. It is Part-II which is the sole criteria to decide the suitability of the

examinees vis-à-vis the post.

11. As far as the allegation of changing the language in which the

examination was to be held to Hindi is concerned, the respondent has

submitted that as per the advertisement for the post, passing of Hindi as a

subject at the secondary level was mandatory and thus the candidates

were required to be proficient at Hindi.

12. It appears to me that there has been no irregularity in the

selection/ appointment procedure of the examiners who evaluated the

answer sheets of the petitioners as the entire process in very clear cut and

simple. A policy of transparency is followed by the respondent and the

onus of selecting adequately qualified persons lies on the Directorate of

Education and seems to have been carried out satisfactorily by the same.

13. Nothing has been placed on record to prove that the examiners

were lacking in the standard of qualifications required by the Directorate

of Education to make them eligible for selection. It is also very pertinent

WP (C) No. 11522/2010, WP (C) No. 12461/2009

to note that the examination was conducted to fill the post of an Assistant

Teacher of primary school, i.e. the said examination was not a highly

technical or unyieldingly competitive examination which would require

top notch experts in their respective fields/ subjects to be evaluating the

answer sheets and further, the Directorate of Education would have its

own guidelines to decide what qualifications are necessary for evaluators/

examiners to be able to responsibly and correctly evaluate answers for

each post. Therefore, I am of the considered view that no irregularity has

occurred in the appointment process of the examiners, therefore, this

Court feels that it is not needful or proper to discuss and compare the

answer sheets of the petitioners with those of the successful candidates.

14. As regards the question of directing re-evaluation of the

answer sheets of the petitioners, reliance can be placed on the case of

H.P. Public Service Commission Vs. Mukesh Thakur & Anr., Civil

Appeal No. 907/2006 decided on 25.05.2010 by a Division Bench of the

Supreme Court wherein the question of re-evaluation of answer sheets has

been laid to rest. The relevant paragraph of the said judgment is

reproduced hereunder :

"24. The issue of re-evaluation of answer book is no more res integra. This issue was considered as length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmasheth etc. AIR 1984 SC 1543, wherein this Court rejected the contention that in absence of provision for re- evaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/ Regulations not providing for rechecking/ verification/ re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. ...."

WP (C) No. 11522/2010, WP (C) No. 12461/2009

The judgment then goes on to cite several cases wherein this

view has been upheld and followed.

15. Another pertinent case which can be referred at this point is

titled Nirbhesh Saxena Vs. Central Board of Secondary Education

Through Secretary, WP (C) No. 10374/2004 decided on 06.08.2004

wherein this Court held that the dispute as to re-evaluation poses no

constitutional question or significance as "the right to the information

even as a facet of the right to freedom of speech and expression cannot

possibly be claimed by a candidate in relation to the evaluation of his

performance in a competitive examination. The concept of freedom of

speech and expression or the philosophy underlying the extension of the

said right to newer areas like receipt or dissemination of information

does not have any correlation or nexus with the process of evaluation of

an answer script of the assessment of the merit of a candidate who has

appeared in a competitive test or examination. ..."

16. In the present petition, no statutory provision or any Rule has

been placed on record or referred which provides for re-evaluation of the

answer sheets. In such case where the requisite provision is not there,

clearly the Court cannot direct for re-evaluation when no statutory

authority provides for the same. The same judgment of H.P. Public

Service Commission (supra) states in paragraph 19 that the Courts may

not examine answer sheets from which the Commission had assessed the

inert-se merit of the candidates. Further, in case of any discrepancy in

evaluation, the same would be for all the candidates appearing and not the

WP (C) No. 11522/2010, WP (C) No. 12461/2009

petitioners only.

17. In the facts and circumstances of the present matter, this Court

is bound by precedent and no direction as to re-evaluation of the

petitioners' answer sheets or striking down of the examination can be

given.

18. There is no merit in the present petitions. Writs dismissed. No

costs.

MANMOHAN SINGH, J.

JULY 07, 2010

WP (C) No. 11522/2010, WP (C) No. 12461/2009