Telangana High Court

Minhaz Noushin vs The State Of Telangana on 25 November, 2022

Bench: T.Vinod Kumar

                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.

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

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.

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

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

(2008) 3 SCC 512

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

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.

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

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

1981 SCR (1) 1184=1981 AIR 588

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

2019 SCC OnLine Pat 1802

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

2004 SCC OnLine All 224

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

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

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

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

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.

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.'

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.

(2013) 14 SCC 623

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:

(2017) 4 SCC 357

"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

(2002) 6 SCC 127

(2007) 8 SCC 100

(1991) 3 SCC 368

(2006) 12 SCC 724