Delhi High Court
Prabha Devi And Ors. vs Govt. Of Nct Of Delhi And Ors. on 12 May, 2016
$~29 to 31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) Nos.8055/2015, 8847/2015 & 9267/2015
Date of decision: 12th May, 2016
+ W.P.(C) 8055/2015, CM No.16629/2015
PRABHA DEVI AND ORS. ..... Petitioners
Through: Mr. Shanker Raju with Mr. J.S.Mann,
Mr. Nilansh Gaur &
Ms. Himankita Saini Gaur, Advs.
versus
GOVT. OF NCT OF DELHI AND ORS. ..... Respondents
Through: Mr. Devesh Singh, ASC for GNCTD.
Ms. Mansi Gupta, Adv. for SDMC.
+ W.P.(C) 8847/2015, CM No.19824/2015
MANJEET & ORS ..... Petitioners
Through: Mr. Shanker Raju with Mr. J.S.Mann,
Mr. Nilansh Gaur &
Ms. Himankita Saini Gaur, Advs.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Satyakam, ASC for R-1 & 2/GNCTD
with Mr. Nilesh Kumar,
Office Superintendent.
Mr. Ajay Digpaul with
Ms. Mohita, Advs. for R-3/SDMC.
+ W.P.(C) 9267/2015, CM Nos.5310-5311/2016
RAVI RAJ & ORS ..... Petitioners
Through: Mr. Jasbir Singh Malik, Adv.
W.P.(C) Nos.8055/2015, 8847/2015 & 9267/2015 Page 1 of 21
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Peeyoosh Kalra, ASC with
Ms. Mahua Kalra, Adv. for R- 1 & 2.
Mr. Jayendra, Adv. for SDMC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
1. The aforestated three writ petitions impugn a common order
dated 27th May, 2015 passed by the Principal Bench of Central
Administrative Tribunal, New Delhi („Tribunal‟ for short) in
several OAs raising identical or similar issues.
2. In the present set of writ petitions, we are concerned with
only one facet or issue decided by the Tribunal in the impugned
order with which the petitioners are aggrieved.
3. In order to appreciate the controversy, we would set out the
relevant facts. By advertisement No.004/2009, Delhi Subordinate
Services Selection Board of the Government of NCT of Delhi
(„DSSSB‟ for short) had invited applications for the post of
Teacher(s) (Primary) vide Post Code 70/09. The petitioners herein
had applied for the said post and had participated in the objective
type multiple choice questions test held in terms of the
corrigendum dated 4th March, 2014. The minimum qualifying
marks prescribed were 40% for general category and 30% for
reserved category candidates. The petitioners herein did not secure
the aforesaid qualifying marks and hence were not included in the
select list, although all the vacancies as advertised could not be
filled. The subject matter of the present writ petitions arises from
the findings and decision recorded in paragraphs 31 to 33 of the
order of the Tribunal:-
"31. Another vital issue raised in the OA was
regarding the situation cropped up on account of two
questions being found confusing i.e. according to
applicants the questions had two correct answers. The
stand of counsel for the applicants is that when the
questions were wrong, each applicant should have
been given 2 grace marks. The respondents have dealt
with the situation by reducing the total marks from
200 to 198 and the qualifying mark are computed with
reference to total 198 marks instead of 200 marks.
The confusion in certain questions in any examination
is an accidental and speculative situation. No hard
and fast rules or guidelines can be laid down to deal
with such kind of situation and it is for the concerned
administrative authority or recruiting agency to evolve
a solution to the problem with reference to the given
circumstances. They may:-
(i) Cancel the examination itself;
(ii) Give grace marks to all the candidates
(iii) Reduce the total marks and may not give any
credit to the confusing/wrong question.
32. Once an authority takes a decision to evolve one
of the apposite possible methods to solve the problem,
the same should not be judicially interfered with.
When the confusion was regarding two questions only
and instead of giving advantage to all the candidates,
as a grace, the respondents preferred to make
realistic assessment of the suitability of the candidates
i.e. they decided to give credit only to those candidates
who actually attempted the questions, no fault can be
found with them. Such proposition came up for
adjudication before Hon'ble High Court of Judicature
at Bombay in Writ Petitioner No.2209/2013 (Abhijit
Uddhavrao Nikam and Ors. Vs. The Maharashtra
Public Service Commission) with Writ Petition
No.2499/2013 (Mahesh Nemchand Singhal Vs. The
Maharashtra Public Service Commission) and their
Lordships viewed that the corrective action of deletion
of the question adopted by the respondent could not be
found arbitrary and the course of corrective action
proposed by the respondents for allotment of marks to
all the incorrect questions to every candidate could
not have been a solution to the problem. Para 7 of the
judgment reads thus:-
"7. The petitioners have not been able to
establish that the corrective action of deletion of
the questions adopted by the respondent is either
arbitrary or contrary to law. The course of
corrective action proposed by the petitioners of
allotment of marks to all the incorrect questions
to every candidate could not have been a solution
to the problem. Since the evaluation of the
papers involved negative marking, allotment of
marks to incorrect questions would not have
benefited everybody equally. With deletion of the
questions and the marks therefore not only the
marks allotted to the questions but also the
negative marking wherever given got deleted
thereby brining all the candidates to the same
level or position. The assessment of the
candidates then was only on the basis of the
remaining questions that had been attempted by
them. Since, there is neither any arbitrariness not
illegality in the course of action adopted by the
respondent, there cannot be any judicial
interference with the same. In the circumstances,
we find no merit in the petitions. The Writ
Petitions are therefore dismissed with no order as
to costs."
33. Being bound by the view taken by the Hon'ble
High Court (ibid), we cannot interfere with the act of
the respondents to not award grace marks to every
candidate and deduct the total marks by two. In view
of the abovementioned, we are not inclined to grant
the relief sought in these Original Applications. The
same are accordingly dismissed."
4. The respondent, i.e. the DSSSB, had deleted two questions
as a result of which the total marks were reduced from 200 to 198.
Accordingly the qualifying 40/30% marks were computed with
reference to a total of 198 questions of one mark each and not 200
questions. Thus the candidates were required to have a minimum
qualifying score of 40/30% marks out of 198 marks. The
contention of the petitioners is that candidates should be allotted or
given one mark for each of the two deleted questions. In other
words, each candidate who had participated in the examination
would be entitled to one extra percentage point or two marks for
the two questions that were deleted.
5. The Tribunal has rejected the prayer for grant of/awarding
two marks for the deleted questions, relying on the decision of the
Bombay High Court in WP(C) No.2209/2013, Abhijit Uddhavrao
Nikam and Ors. Vs. The Maharashtra Public Service
Commission dated 20th June, 2013. The aforesaid decision had
upheld the decision of the respondents therein of assessment based
on the remaining questions. The procedure adopted in not
awarding or giving full marks for deleted questions it was observed
was not arbitrary or illegal. Therefore, there would not be any
judicial interference.
6. Learned counsel for the petitioners have submitted that the
reasoning given by the Tribunal in the aforesaid paragraphs is not
in consonance with the reasoning given by the Delhi High Court in
Salil Maheshwari Vs. The High Court of Delhi & Anr., 2014
(145) DRJ 225 wherein an identical question had arisen and it was
held that each candidate should be awarded one mark for each
deleted question. Reliance is also placed on the decisions of the
Supreme Court in Subhash Chandra Verma and Ors. Vs. State of
Bihar and Anr. 1995 Supp (1) SCC 325 and Abhijit Sen Vs. State
of U.P. & Ors., 1984 (2) SCC 319. Mr. J.S. Mann, Advocate had
submitted that in some cases the candidates had correctly answered
the two questions which have been removed/deleted on account of
the fact that there were two possible correct answers. He submits
that in this manner the right answer given by the said candidates
was not awarded any mark.
7. Learned counsel appearing for the respondents, on the other
hand, has relied upon the decisions of the Supreme Court in
Kanpur University, Through Vice-Chancellor & Ors. vs. Samir
Gupta & Ors., (1983) 4 SCC 309 and judgment of the Delhi High
Court in Gunjan Sinha Jain vs. Registrar General, High Court of
Delhi, 2012 (188) DLT 627.
8. As noticed above, the issue in question is narrow and
limited. The petitioners claim that each candidate should be given
one mark for each deleted question and there should not be any
negative mark for the deleted questions, whereas the respondents
submit that the deleted questions were removed and should not be
taken into consideration for ascertaining whether the candidates
had secured the minimum eligibility cut off marks of 30% or 40%.
The present situation arises for the reason that the candidates did
not qualify and secure the stipulated minimum qualifying marks
and hence several vacancies could not be filled up. This is not a
case wherein the candidates had qualified the prescribed
benchmark but were not shortlisted for the second stage
examination/viva voice. This relevant fact has to be kept in mind
when we examine the decisions relied upon by the counsel. In the
later case, the issue of awarding an additional mark or deleting the
question altogether may be of academic interest, as it would not
make any difference to the select list of candidates eligible for the
second stage examination/viva voice.
9. In Kanpur University (supra) an identical issue had arisen
and the Supreme Court had held as under:-
"18. If the State Government wants to avoid a
recurrence of such lapses, it should compile under its
own auspices a text-book which should be prescribed
for students desirous of appearing for the combined
Pre-Medical Test. Education has more than its fair
share of politics, which is the bane of our Universities.
Numerous problems are bound to arise in the
compilation of such a text-book for, various applicants
will come forward for doing the job and forces and
counter- forces will wage a battle on the question as to
who should be commissioned to do the work. If the
State can succeed in overcoming those difficulties, the
argument will not be open to the students that the
answer contained in the text-book which is prescribed
for the test is not the correct answer. Secondly, a
system should be devised by the State Government for
moderating the key answers furnished by the paper
setters. Thirdly, if English questions have to be
translated into Hindi, it is not enough to appoint an
expert in the Hindi language as a translator. The
translator must know the meaning of the scientific
terminology and the art of translation. Fourthly, in a
system of 'Multiple Choice Objective-type test', care
must be taken to see that questions having an
ambiguous import are not set in the papers. That kind
of system of examination involves merely the tick-
marking of the correct answer. It leaves no scope for
reasoning or argument. The answer is 'yes' or 'no'.
That is why the questions have to be clear and
unequivocal. Lastly, if the attention of the University is
drawn to any defect in a key answer or any ambiguity
in a question set in the examination, prompt and
timely decision must be taken by the University to
declare that the suspect question will be excluded from
the paper and no marks assigned to it."
(underlining added)
The last and emphasized portion of the said quotation lays
down a ratio that a wrong question should be deleted and excluded
from the paper and no marks should be assigned to it. It should be
treated as a zero mark question. This rule or ratio was adopted by
the respondents in the present case. In the aforesaid quotation from
Kanpur University (supra), the Supreme Court has elucidated that
care should be taken to ensure that the questions included in a
multiple choice objective type test do not have ambiguous import,
as the said system of examination involves merely marking the
correct answer. There should not be scope for reasoning or
argument and the answer should be either „yes‟ or „no‟. The
questions should be clear and unequivocal. In an earlier portion of
the same judgment, the Supreme Court had observed:-
"15. The findings of the High Court raise a question
of great importance to the student community.
Normally, one would be inclined to the view,
especially if one has been a paper setter and an
examiner, that the key answer furnished by the paper
setter and accepted by the University as correct,
should not be allowed to be challenged. One way of
achieving it is not to publish the key answer at all. If
the University had not published the key answer along
with the result of the test, no controversy would have
arisen in this case. But that is not a correct way of
looking at these matters which involve the future of
hundreds of students who are aspirants for admission
to professional courses. If the key answer were kept
secret in this case, the remedy would have been worse
than the disease because, so many students would
have had to suffer the injustice in silence. The
publication of the key answer has unravelled an
unhappy state of affairs to which the University and
the State Government must find a solution. Their sense
of fairness in publishing the key answer has given
them an opportunity to have a closer look at the
system of examinations which they conduct. What has
failed is not the computer but the human system.
16. Shri Kacker, who appears on behalf of the
University, contended that no challenge should be
allowed to be made to the correctness of a key answer
unless, on the face of it, it is wrong. We agree that the
key-answer 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. It 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 as correct. The
contention of the University is falsified in this case by
a large number of acknowledged text-books, which are
commonly read by students in U.P. Those text-books
leave no room for doubt that the answer given by the
students is correct and the key answer is incorrect.
17. Students who have passed their Intermediate
Board Examination are eligible to appear for the
entrance Test for admission to the Medical Colleges in
U.P. Certain books are prescribed for the
Intermediate Board Examination and such knowledge
of the subjects as the students have is derived from
what is contained in those text-books. Those text-
books support the case of the students fully. If this
were a case of doubt, we would have unquestionably
preferred the key answer. But if the matter is beyond
the realm of doubt, it would be unfair to penalise the
students for not giving an answer which accords with
the key answer, that is to say, with an answer which is
demonstrated to be wrong."
10. The petitioners, referring to paragraph 17 of the aforesaid
judgment, argue that they are being unduly penalized by not being
given additional marks for the deleted questions. Once the
questions are deleted the candidates are prejudiced and suffer for
the score obtained by the said candidates is to be decided out of the
remaining questions. This disadvantage can be rectified by
awarding additional marks and not by treating the questions as zero
mark questions. It is difficult to accept the said proposition as
universally applicable. The earlier quoted observations in Kanpur
University (supra), it is apparent, were with reference to ambiguity
in the questions itself. In such a situation it was directed that the
question should be deleted and treated as a zero mark question.
This principle, it appears has been extended, as noticed below, to
two or more ambiguous suggested answers in multiple choice
objective type tests. Kanpur University (supra) was relied upon by
the Delhi High Court in Gunjan Sinha Jain (supra) with reference
to situations where a question has two possible answers and it was
observed as under:-
"........But, as there cannot be two correct answers for
the same question in the scheme of the 'OMR Sheet'
based test, the question would have to be removed
from consideration so that neither those candidates
who chose option (1) nor those who chose option (4)
are negatively marked."
Thereafter, the Division Bench of the High Court on the
question of marking and award of marks had given the following
directions:-
79. Let us first consider the condition with regard to
minimum qualifying marks. When there were 200
questions, the maximum possible marks were 200 on
the basis of one mark for each correct answer.
Consequently, the minimum qualifying marks for
general candidates was 120 (60% of 200) and for
reserved candidates it was 110 (55% of 200). Because
we have directed that 12 questions be removed from
the purview of consideration for the purposes of re-
evaluation, the minimum qualifying marks would also
change. It would become 112.8 (60% of 188) for
general candidates and 103.4 (55% of 188) for the
reserved categories.
A reading of the aforesaid paragraph from Gunjan Sinha
Jain (supra) would clearly illustrate and show that in the said case,
the deleted questions had to be removed and treated as zero mark
questions. No marks were to be awarded for the said questions.
Qualifying or merit marks had to be awarded on the basis of
answers to the remaining questions. Thus, the aforesaid judgment
supports the view and the reasoning given by the Tribunal and also
the stand taken by the respondents.
12. Learned counsel for the petitioners, however, submits that
the decision in Salil Maheshwari (supra) takes a contrary view
and our attention is drawn to paragraph 22 of the said decision
which is as under:-
"22. The very finding that a key answer is not the
objective, single, correct answer of the four options
provided, and that another answer is "correct"
according to those well-versed in the subject, itself
would merit the awarding of additional marks to
candidates who had chosen the latter answer. There
arises no need to "evaluate" or examine a response of
a candidate for a second time, since all candidates
who have answered in accordance with the answer key
that the experts in the field affirm, are automatically
entitled to the award of additional marks. The
precedents on re-evaluation are only applicable in the
context of examinations which permit subjective
written answers, and not objective, multiple-choice
questions that permit the selection of just one
"correct" answer." (underlining added).
13. In Salil Maheshwari (supra) reference was made to Gunjan
Sinha Jain (supra). In Salil Maheshwari (supra) the writ petition
was dismissed. Further the candidates had secured the minimum
cut off eligibility marks but were not short listed as they had not
secured adequate merit rank. Short listing was on comparative
merit rank, as the candidates eligible for second stage were not to
exceed 10 times the number of the vacancies advertised.
Pertinently, as the writ petition was dismissed, the question of
grant of additional marks or zero marks was not an issue to be
determined as in the present case. However, we have taken note of
the aforesaid observations.
14. Our attention is also drawn to paragraph 12 in Salil
Maheshwari (supra), which reads as under:-
"12. Three propositions of law emerge from Kanpur
University (supra), on the permissible extent of
judicial review of an answer key. First, the answer
key must be presumed to be correct and must be
followed, even in the face of a mere doubt, second,
only if a key answer is demonstrably wrong, in the
opinion of a reasonable body of persons well-versed
in the subject, it may be subject to judicial review,
and third, if the answer key is incorrect beyond doubt,
then a candidate cannot be penalised for answers at
variance with the key. This position was reiterated
in Manish Ujwal and Ors. v. Maharishi Dayanand
Saraswati University and Ors., (2005) 13 SCC 744
and DPS Chawla v. Union of India, 184 (2011) DLT
96." (emphasis supplied)
We have already examined the said aspect and observe that
it cannot be stated as a precept that prejudice was caused to the
petitioners herein as two questions were deleted but additional
marks were not awarded and the deleted questions were treated as
zero mark questions. This would be contrary to the ratio and view
expressed in Kanpur University and Gunjan Sinha Jain (supra).
15. Mr. Jasbir Singh Malik, Advocate, has submitted that the
Division Bench of the High Court had observed that the answer
key must be presumed to be correct and therefore the petitioners
who had given "correct" answers to the two deleted questions
should be awarded one mark for each question. It is not possible to
accept the said submission for the reason that in the present case,
by applying the Kanpur University test, the respondents
themselves have deleted two questions accepting that the questions
are not correct. If the argument is to be accepted then the two
questions should not have been deleted. They should be counted.
Simply, the argument must fail.
16. Reliance placed on Subhash Chandra Verma (supra) is also
misconceived and not apposite. Our attention was drawn to the
following observations in the said judgment:-
"25. (3) Several controversial questions were set and in
relation to some questions, there could be more than one
answer: In an objective type of test, more than one
answer are given. The candidates are required to tick
mark the answer which is the most appropriate out of the
plurality of answers. The questions and answers were
prescribed by the experts in the field with reference to
standard books. Therefore, it is incorrect to say that a
question will have more than one correct answer. Even if
the answers could be more than one, the candidates will
have to select the one which is more correct out of the
alternative answers. In any event, this is a difficulty felt
by all the candidates......................................................
In Shantanu Singh (Dr) vs. State of U.P., it is
stated at page 87 as under:
"In proceedings under Article 226 of
the Constitution it is not possible for
this court to further probe into the
matter and on the basis of affidavits
and documents on record it has not
been established that more than 6
questions had dual correct answers
resulting in any disadvantage to the
candidates who attempted the said
questions. The University has directed
that no negative marking on the
disputed 6 questions should be done
and as such no prejudice has been
caused to the students who appeared
in the examination. It is noteworthy
that the University suo motu examined
this aspect after the examinations were
over and constituted a Committee of
Experts to ensure that the students did
not suffer on this score."
In the circumstances quoted above, the question of
appointment of a Committee of Experts suo motu by
the Commission did not arise.
It requires further to be noted that the Commission
had given clear instructions to the evaluators to award
full marks to the candidates in cases where (a)
candidate has put tick mark against the correct
answer and has also put correct answer in the box; (b)
candidate has put only tick mark against the correct
answer but has not written anything in the box; and
(c) the candidate has written correct answer in the box
but has not put any tick mark against the correct
answers. No candidate was put to any disadvantage in
awarding marks because of any discrepancy,
ambiguity or duplicity, Moreover, there being no
negative marking, no disadvantage was caused to any
candidate on this account."
(emphasis supplied)"
The first part of the aforesaid quotation refers to a position where
the candidates appear in an objective type test and are required to
tick-mark the appropriate answers out of the plurality of
suggestions or answers. Here, the Supreme Court has said that the
correct answer would be the one prescribed by the experts in the
field with reference to the standard text books. It was observed
that if there are more than one correct answers, the candidate
should select the answer which is more correct out of the
alternative answers. In any event, this would be a difficulty felt by
all the candidates. The second reasoning reflects the neutralising
effect for all candidates face the same difficulty. The aforesaid
observations are general observations and nothing favourable
would flow to the petitioners in view of the said observations.
17. The second quote from Subhash Chandra Verma (supra)
refers to findings recorded in Shantanu Singh (Dr) vs. State of
U.P., AIR 1993 All 1985 and the observations of the Supreme
Court. A careful reading of the passage from Dr. Shantanu Singh
(supra) would reveal that the High Court had observed that the
questions did not have dual correct answers resulting in any
disadvantage to the candidates. Yet the university had directed that
there would not be any negative marking for the said questions.
Therefore no prejudice was caused to the candidates who had
appeared in the examination. In the said discussion, the Supreme
Court upheld the marking criteria adopted in respect of the said
questions. Lastly, candidates in the case of Subhash Chandra
Verma (supra) were required to tick mark the correct answer and
also put a correct answer in the box. Thus the answers had to be
given on two separate papers. Keeping in view this requirement, it
was held that candidates would not be put to any disadvantage
because they had marked the answer in one of the sheets and not in
another.
18. The last judgment relied upon by the counsel for the
petitioners is the case of Abhijit Sen (supra). This decision arises
out of the same examination which was the subject matter of the
judgment in the case of Kanpur University (supra) i.e. Multiple
Choice Objective-type questions test for medical entrance. With
reference to one question, the Supreme Court observed that there
were two correct answers namely, alternative Nos. 2 and 3 but the
appellant therein had marked alternative No.1. In these
circumstances, the Supreme Court held that the appellant therein
was not entitled to one additional mark on the ground that there
were two possible correct answers. The Supreme Court observed:
"3. ...In our view both the alternatives together
(alternatives Nos. 2 and 3) would be the correct answer.......
..........................................................................................
In this view of the matter we do not think that either of the
appellants is entitled to an addition of four marks as
suggested by counsel on their behalf by reason of their
answer given to Question 31."
The aforesaid passage would therefore not be of any assistance to
the petitioners, rather it would go against the submission made on
their behalf.
Another passage from Abhijit Sen (supra) reads:-
"4. Turning to Question 100 in the Zoology paper (with
which only the appellant Kumari Sunita Khare is
concerned)....
In our view it is a case of tricky question being set by the
paper-setter where one of the essential aspects, namely, the
range has not been indicated anywhere in the question.
Placed in that situation the appellant Kumari Sunita Khare
was right when she ticked alternative No. 4 as being the
correct answer to the question set."
With regard to another question, the Supreme Court came to the
conclusion that the appellant therein had picked and marked the
right alternative and had given the correct answer. In these
circumstances, the Supreme Court had directed that the appellant
therein should be given one mark. A discerning reading of Abhijit
Sen (supra) would indicate that in this case the Supreme Court had
given direction for awarding an additional mark as the candidate
had marked the right/correct answer. The question was not deleted.
The facts of the said case and issue involved are quite distinct from
the present case and therefore the direction given in Abhijit Sen
(supra) would not be apposite and applicable to the present case.
19. A reading of the aforesaid judgments would reflect that there
are four possible options available to the authorities, when they are
confronted with the situation where the question(s) included in the
multiple choice objective type tests is found to be incorrect,
ambiguous or the answers themselves are found to be incorrect,
ambiguous or capable of dual answers. The options are; (i) the
question can be deleted and treated as a zero mark question; (ii) the
question though deleted, each candidate is awarded marks as if the
answer was correct and without negative marking; (iii) the question
is not deleted and the candidates who have given the right answer
are awarded marks, but there is no negative marking; and (iv) if
there are two correct suggested answers, candidates who have
given any of the two answers are awarded full marks. In the latter
case, possibly negative marking may not be mandated. The
aforesaid options can be divided into two categories, where the
question is deleted, and the question is not deleted but option Nos.
(iii) or (iv) are exercised. Which of the two categories would be
applicable would depend upon the question and the suggested
answers. The option to be selected has to be question-wise, i.e.,
with reference to each question. Lastly, while selecting the option,
the authorities must take into consideration two factors, first, the
sanctity of the selection process should be maintained and second,
the students/candidates who have appeared should not suffer
objectionable prejudice and disadvantage. In the present case, the
authorities have exercised the first option, the question has been
deleted and treated as zero mark question. It is possible to urge
that award of additional marks, i.e., the second option is the most
suited and preferred option, for least possible prejudice is caused to
the students/candidates when an additional mark is awarded.
However, it cannot be said that the said option is the only valid and
acceptable option or when the said option is adopted, no prejudice
is caused to any students/candidates. Prejudice may still be caused
because students who have correctly answered the question in spite
of ambiguity, etc., are denied benefit of the correct answer. As
held in Abhijit Sen (supra), all the students/candidates were placed
in a similar position and had felt and faced the same difficulty. In
Kanpur University (supra) and Gunjan Sinha Jain (supra), the
Supreme Court and High Court have preferred to adopt the first
option, i.e., to delete the question and treat the question as a no
mark question. Hence, the exercise of the first option per se would
not be wrong or contrary to law. Onus in such cases would be on
the candidate to show that deleting the question and exercise of the
first option has caused prejudice. To establish the prejudice, the
question and suggested answers, the model key and the answer
given by the candidate have to be adverted to and examined. Only
when the answer given it is observed, is correct or should be
accepted, that additional mark(s) can be awarded. In the present
case, the petitioners have alleged prejudice, but have not been able
to demonstrate and show how and in what manner the method
adopted, i.e., treating the two questions as zero mark questions, is
required to be interfered. It would not be appropriate to reject and
overturn the criteria/option exercised, by referring and relying on
the general perception that the second option is the most fair and
just criteria. The power of judicial review is not an alternative or
an appellate power. It is only when there is an error in the decision
making process, which has to be shown and established by the
petitioner, that the power is exercised.
20. The applications for impleadment are also disposed of in
terms of the aforesaid.
SANJIV KHANNA, J
NAJMI WAZIRI, J
MAY 12, 2016/ak
