D.P.S. Chawla vs Union Of India & Ors.
2011 Latest Caselaw 5199 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 24th October, 2011.

+                         W.P.(C) 6201/2011
%      D.P.S. CHAWLA                                      .......Petitioner
                          Through:      Mr. Sudarshan Rajan, Mr. Hitesh
                                        Kumar Saini & Mr. Narender Pal
                                        Singh, Advocates.
                                     Versus
    UNION OF INDIA & ORS.                    ..... Respondents
                  Through: Mr. Alakh Kumar, Adv. for BSNL.
CORAM:-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may       Yes
       be allowed to see the judgment?

2.     To be referred to the reporter or not?            Yes

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner impugns the order dated 22 nd March, 2011 of the

Central Administrative Tribunal (CAT) dismissing O.A. No.3582/2010

preferred by the petitioner.

2. Notice of the petition was issued and vide detailed order dated 26 th

August, 2011 the respondent directed to file an affidavit furnishing the

information mentioned therein. Affidavit has so been filed and to which

response has been filed by the petitioner.

3. The petitioner working as a Junior Telecom Officer (Assistant

Manager) in the respondent Bharat Sanchar Nigam Limited (BSNL)

appeared in the Limited Departmental Competitive Examination-2007 held

for promotion to the grade of Sub-Divisional Engineer (Telecom). As per

the scheme of the said examination, all candidates securing 50% marks in

each of the two papers were to be declared successful and eligible for

promotion. In the result declared, the petitioner was shown to have secured

49% marks in the first paper and 58% marks in the second paper; he was

accordingly not declared successful.

4. The case of the petitioner is that the Question No.2 in the first paper in

which he was awarded 49% marks, was as under:

"Which of the following is valid GSM downlink frequency band?

       (a)    890-915 MHz                      (b) 1710-1785 MHz
       (c) 935-960 MHz                         (d) 1900-1975 MHz"

5. It is undisputed that the petitioner exercised the option (c) i.e. "935-

960 MHz". The said answer of the petitioner was marked wrong and no

marks awarded therefor. The petitioner contends that his answer was correct

and if marks are awarded therefor, he would have 50% marks in the first

paper also, making him successful in the examination.

6. The petitioner in this regard relied on the answer key for the aforesaid

first paper in which the correct answer was shown as "(b) 935-960 MHz".

The contention of the petitioner is that the correct answer is "935-960 MHz

but in the answer key the said correct answer has been erroneously given

against option (b).

7. The representation of the petitioner having not met with any success,

ultimately the O.A. No.3582/2010 under Section 19 of the Administrative

Tribunals Act, 1985 was preferred.

8. The Tribunal, in the impugned order has noticed that Rule 15

contained in Appendix 37 (Rules Relating to Departmental Examinations)

specifically prohibits re-evaluation of answer sheet and relying on H.P.

Public Service Commission Vs. Mukesh Thakur (2010) 6 SCC 759 (laying

down that in the absence of any provision of statute or statutory

rules/regulations, the Court should not generally direct re-evaluation) held

that no re-evaluation can be directed and dismissed the application.

9. It is the contention of the petitioner that the present is not a case of re-

evaluation but of re-computation and of correction of a mistake. On the said

contention of the petitioner, vide order dated 26 th August, 2011 (supra) the

respondents were directed to file an affidavit as to whether the answer of

"935-960 MHz" given by the petitioner was correct or not.

10. The respondents in the affidavit filed have failed to controvert that the

answer given by the petitioner is correct. It is however stated that total 8594

candidates had appeared in the examination and of which 1867 were

declared successful on 8th July, 2008; that all answer sheets were examined

in an impartial manner; that the paper setter besides the question paper had

also provided an answer key; that the answer sheets were evaluated by fairly

high level officers of the department who are experts in the subject; that the

answer sheets were distributed to a number of evaluators all of whom were

to, besides being guided by the answer key, also use their own wisdom; that

the examiner is the final authority in the matter of evaluation; that the result

has attained finality; that the next examination is scheduled to be held in

December, 2011/January, 2012. It is however admitted by the respondents

that some of the other examiners/evaluators had marked the answer (c) "935-

960 MHz" to be correct and awarded marks therefor. It is however pleaded

that if the matter is to be reopened, it needs to be reopened qua all the

candidates who had appeared in the examination and which is not possible

as the answer sheets have since been weeded out.

11. The counsel for the respondents has also placed reliance on Pramod

Kumar Srivastava Vs. Bihar Public Service Commission AIR 2004 SC

4116 and on Secretary, All India Pre-Medical/Pre-Dental Examination,

C.B.S.E. Vs. Khushboo Shrivastava 2011 (9) SCALE 63 both deprecating

the practice of directing re-evaluation in the absence of any provision

therefor.

12. Per contra, the counsel for the petitioner refers to Guru Nanak Dev

University Vs. Saumil Garg (2005) 13 SCC 749 and to Manish Ujwal Vs.

Maharishi Dayanand Saraswati University (2005) 13 SCC 744 where in

the face of defects in the answer key it was held that merit should not be a

causality.

13. It is also the contention of the counsel for the petitioner and not

controverted by the respondents that vacancies in the post to which the

petitioner would become entitled to be promoted if declared successful,

exist.

14. The petitioner has also placed before this Court independent material

to show that the answer given by him of "935-960 MHz" is the correct

answer.

15. The judgments relied upon by the Tribunal as also by the counsel for

the respondents before us are relating to questions requiring essay type

answers and do not relate to answers to multiple choice questions, as the

subject question in the present case was. While in the evaluation of an essay

type answer, subjective assessment of the examiner/evaluator assumes

importance and is prohibited under the Rules, it cannot be said to be so in

case of answers to multiple choice questions. In multiple choice questions,

generally, there is only one correct answer and evaluation of such answers

requires the examiner/evaluator to only evaluate whether the correct choice

has been exercised by the examinee and if so to award marks therefor; there

is no scope of controversy or possibility of different examiners awarding

different marks for the correct choice exercised. In multiple choice

questions, the examiner/evaluator strictly speaking is left with no role

whatsoever and in fact most of the examinations with multiple choice

questions have now substituted the examiners/evaluators with an Optical

Mark Reader (OMR). Thus, the Rule prohibiting re-evaluation framed with

respect to the essay type answers cannot be said to be applicable to the

answer to multiple choice questions.

16. From the record before this Court, it is amply established that the

correct answer to the question aforesaid was "935-960 MHz" as answered by

the petitioner and which was placed in the question paper as option (c) but in

the answer key was erroneously shown as option (b). Once, it is established

that the answer is correct, the error in not giving the marks for the same, is

but an error akin to a mistake / re-totaling which under the Rules (supra) of

the examination also is permitted. We are therefore of the opinion that the

Tribunal erred in applying the prohibition under the Rule as to re-evaluation

to such a mistake also.

17. We may notice that the Supreme Court recently in CBSE Vs. Aditya

Bandopadhyay (2011) 8 SCC 497 has held the examinees to be entitled to

inspection of their answer sheets under the Right to Information Act, 2005.

Such right to inspection has to be given a meaning and cannot be made to be

an empty exercise. Right to inspection carries with it a right to seek judicial

review of error/mistake as has occurred in the present case and is intended to

eliminate arbitrariness and injustice.

18. In the present case we find injustice to have been meted out to the

petitioner. Instead of being declared successful, owing to the mistake/error

of the respondents themselves, he has been declared unsuccessful. This

Court in exercise of powers of judicial review is not called upon to

undertake any exercise of re-appreciation/re-assessment of the answer of the

petitioner but to only correct the obvious mistake. We therefore are of the

opinion that the power of judicial review cannot be denied in such cases.

19. As far as the contention of the counsel for the respondents of the

petitioner alone being not entitled to the benefit of the error/mistake in the

answer key and it being not possible to re-evaluate of answer sheets of

others is concerned, we have before this Court the case of the petitioner only

who has been agitating the same since the declaration of the result. No other

candidate is stated to be so pursuing the matter. Moreover, the answer

sheets having been reported to have been weeded out, the possibility of grant

of relief to petitioner opening flood gates of litigation by others also does not

arise.

20. We accordingly allow this petition and set aside the order of Tribunal.

The application under Section 19 of the Administrative Tribunals Act

preferred by the petitioner is allowed. The marks secured by the petitioner

in the first paper are enhanced from 49% to 50%. Axiomatically, the

petitioner is declared successful in the examination and declared eligible for

promotion in pursuance thereto. The respondents are directed to within six

weeks hereof so promote the petitioner with effect from the date when others

similarly situated as him were promoted and to within eight weeks hereof

also pay all consequential benefits to the petitioner.

21. Though the petitioner has suffered owing to the mistake of the

respondents and the cussedness of the respondents in, inspite of

representations of the petitioner, not correcting the same but we refrain from

imposing any costs on the respondents.

RAJIV SAHAI ENDLAW, J.

ACTING CHIEF JUSTICE OCTOBER 24, 2011 bs