HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Per Honble the Acting Chief Justice. 08/03/2017
1. By way of these appeals, all the appellants, the original writ petitioners have challenged the judgment and order of the learned Single Judge dated 08.02.2017, whereby the learned Single Judge has dismissed the writ petitions and has not interfered with the prayer, which has been claimed by the petitioners.
2. The basic question, which has been put for our consideration is the judgment delivered by the learned Single Judge and the advertisement issued by the Rajasthan Public Service Commission (hereinafter referred to as RPSC), which was subject matter of the writ petitions before this Court (Jaipur Bench), being S.B.Civil Writ Petition No.15028/2016 decided on (19 of 38) [SAW-186/2017] 08.11.2016. In the said judgment and order dated 08.11.2016, following directions have been issued:
This Court rejects the argument raised by Mr. M.F. Baig believing in the fairness of the persons at the helm of the affairs at RPSC, as this Court believes that the RPSC has nothing to hide in their cupboard. Transparency not only inspire confidence of the persons in the system but also ensure that merit is only yardstick to which RPSC is committed and RPSC shall make every effort that the teachers are spotted on the touchstone of merit alone. This Court shall follow the maxim that fairness in recruitment should not only be followed but should also appear to have been followed. Therefore, to achieve highest standards of transparency, following directions are issued:- (a) That the revised answer key alongwith report of experts shall be uploaded on the website of RPSC within one week from the receipt of certified copy of this order. (b) That after the needful is done by the RPSC, no objections shall be entertained by RPSC and the revised answer key shall be final and shall be followed by RPSC for computation of the result. (c) That only qua the answer to the question which as per revised answer key is palpably wrong and is unacceptable to the experts having authority in the subject, court shall be able to entertain the challenge made to the revised answer key and if two views are possible due credence shall be given to the one view if same is in consonance with the revised answer key approved by the experts. (d) That for a period of fifteen days, after uploading of the revised answer key, the computation of the result shall be kept in abeyance to enable any aggrieved person to approach the court in case revised answer key to a question is palpably wrong and is against all the accepted principles or cannons of the subject. (e) That in pursuance of the selection made, any appointment/posting letter already issued, shall be kept in abeyance for a period of fifteen days from receipt of certified copy of this order by RPSC and the State Government.
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3. The RPSC has proceeded on the basis of the direction issued by the Jaipur Bench and acted in view of the clause, which was referred in the judgment. This is second round of litigation, wherein the present set of appeals are arising out of an order of the learned Single Judge.
4. The thrust of the argument of the counsel for the appellants right from Mr. N.S. Choudhary with Mr. C.S. Bhati, Mr. B.S. Sandhu for Mr. H.S. Sandhu, Mr. Mahaveer Bishnoi, Mr. Kuldeep Mathur with Mr. K.D.S. Charan, Mr. Kailash Jangid, Mr. Kishan Bansal, Mr. Mohit Singh Choudhary, Ms. Pooja Muhya, Mr. H.S. Sidhu, Mr. Sanjeet Purohit, Mr. Ankur Mathur and Mr.Vinay Kothari is that by the deletion, the meritorious people are left out and non-meritorious people are getting precedence over the meritorious people, and majority of the persons, who have not attempted the questions, which are deleted, they have wrongly been given pro-rata marks for 18 questions, are given uniformly to all.
5. Strong reliance has been placed on the judgments of this Court as well as the Supreme Court starting from Rajesh Kumar & Ors. vs. State of Bihar & Ors. [(2013) 4 SCC 690]. Paras 13, 14, 15, 19 & 22 of the said judgment read as under:-
13. We have in the above backdrop heard learned counsel for the parties at some length who have taken us through the impugned orders and other material placed on record.
14. Appearing for the appellants, Mr. P.P. Rao, learned senior counsel, argued that the High Court had committed an error in quashing the entire selection (21 of 38) [SAW-186/2017] process even when the petitioners had not made any prayer to that effect. Mr. Rao was at pains to argue that a relief which was not even prayed for by the writ petitioners could not be granted by the Court whatever may have been the compulsion of equity, justice and good conscience. Reliance in support of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234 and State of Orissa & Anr. v. Mamata Mohanty (2011) 3 SCC 436.
15. There is, in our view, no merit in that contention. The reasons are not far to seek. It is true that the writ petitioners had not impleaded the selected candidates as party respondents to the case. But it is wholly incorrect to say that the relief prayed for by the petitioners could not be granted to them simply because there was no prayer for the same. The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the Model Answer Key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the Model Answer Key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the Model Answer Key to be erroneous in regard to as many as
45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.
19. The submissions made by Mr. Rao are not without merit. Given the nature of the defect in the answer key the most natural and logical way of correcting the (22 of 38) [SAW-186/2017] evaluation of the scripts was to correct the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh attempt by all concerned. The process of re- evaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case.
22. In the result, we allow these appeals, set aside the order passed by the High Court and direct that - 22.1 Answer scripts of candidates appearing in 'A' series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinha and Prof. KSP Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis. 22.2 Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever. 22.3 In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits. 22.4 Such of the appellants as do not make the grade after reevaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement No.1906 of 2006. 22.5 The needful shall be done by the respondents State and the Staff Selection Commission (23 of 38) [SAW-186/2017] expeditiously but not later than three months from the date a copy of this order is made available to them.
6. Counsel for the appellants have also placed reliance on State of Rajasthan vs. Kamlesh Kumar Sharma & 31 Ors. [2014(1) WLC (Raj.) 349 (D.B.)], paras 29, 30, 36, 38, 40, 43 & 49 being relevant, read as under:-
29. The learned counsel also questioned the stand of the RPSC with reference to 'cut off marks' in round figure for the reason that such an action was not permissible under the law when the competition is so tough and intence that even a fraction of a mark would decide the inclusion and/or exclusion of a candidate subjected to written examination. The learned counsel further submitted that since the ultimate value of each question rose to 1.12 mark and negative marking became 0.373, in that obtaining fact situation, it was not possible for the RPSC to determine 'cut off marks' in round figures. Moreover, in the factual matrix, the merit of the selected candidates could not have been retained the same as declared in the initial result, in view of deletion of questions. The learned counsel further urged that the RPSC appointed as many as four expert committees prior to declaration of the first result and thereafter in view of the representations made, raising objections to the questions, other expert committees were appointed resulting into deletion of
12 questions out of 100. Therefore, in the factual backdrop of the events and challenge to the result declared by the RPSC with reference to the written examination in dispute, the very purity, sanctity, significance and integrity of the selection process is doubtful.
30. From a survey of the judgments cited at bar during the course of arguments, it emerges that inaccuracies in framing of certain questions with multiple correct options in respect of any or some of the questions, the effort of the court is to save the process of selection so that the time and exercise undertaken by the examining body as well as the participating candidates is not wasted, but at the same time purity of the selection process cannot be allowed to be compromised and further, it shall be necessary to see that the process of selection is not arbitrary, that it withstands the test of rationale and the nexus with the object of (24 of 38) [SAW-186/2017] selecting the best and the excellent, and at the same time it must be ensured that no undeserving candidate had any advantage at the cost of deserving candidates.
36. The Hon'ble Supreme Court in case of Manish Ujwal & Ors. Versus Maharishi Dayanand Saraswati University & Ors. - (2005) 13 SCC 744, while dealing with the issue of a wrong and erroneous answer key, held that the students cannot be made to suffer for the fault and negligence of the University. Further, a wrong answer key can result in the merit being made a casualty and since the courts are slow in interfering with the educational matters, it is expected from the authorities to prepare the answer keys with higher responsibility and deprecated the attitute of casual approach in providing wrong and/or erroneous answer keys, as has been noticed by the learned Single Judge.
38. The Hon'ble Supreme Court in a recent pronouncement in case of Rajesh Kumar & Ors. Versus State of Bihar & Ors. (Civil Appeal Nos.2525-2516 of 2013) dealing with the question of application of erroneous Model Answer Key for evaluation of answer scripts of candidates appearing in a competitive examination observed that an erroneous Model Answer Key is bound to lead to erroneous result and an equally erroneous inter-se merit list of such candidates. Their Lordships in unequivocal terms observed that if the key, which was used for evaluating the answer sheets was itself defective, the result prepared on the basis of the same could be no different. Their Lordships further held that it also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable.
40. The Hon'ble Supreme Court in case of Manish Ujwal (supra) has held that Universities and examining bodies should not adopt an attitude of casual approach in providing key answers as one could very well understand the predicament of a young student at the threshold of his or her career. The Hon'ble Supreme Court under paragraph 10 held thus:-
10. The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to the six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on (25 of 38) [SAW-186/2017] account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answer; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case.
43. The selection process in the case at hand has been subjected, time and again, to judicial scrutiny and there has been judicial intervention, which further speaks volume about the purity, sanctity and significance of the selection process coupled with the advantage gained by the undeserving candidates, who were otherwise not eligible to face the interview, the sole criterion for selection. It is also not gathered from the stand of the RPSC as to why the recommendations made by the committee consisting of three experts, who in unequivocal terms pointed out errors in question No. 34 in Series-A, Hindi version of choice 4 of question No. 34 and with reference to options against question Nos. 23, 27, 29, 44 and 45, were not accepted while referring the matter to yet another committee consisting of two members, who in turn recommended deletion of question No. 98 of Series-A.
49. In the result, the intra-court appeals are adjudicated upon as under: (26 of 38) [SAW-186/2017]
i) the intra-court appeals preferred by the State of Rajasthan and respondent-RPSC fails and are hereby dismissed. ii) the intra-court appeals filed by the writ petitioners are allowed and disposed of quashing the entire selection process including the screening/written test conducted by the respondent-RPSC on 1st December, 2011, in response to advertisement dated 26 May 2011, for appointment to the post of APP Gr. II as well as the impugned select list dated 2nd February 2013 (ANNEXURE 5, annexed to the Writ Petition Number 2142 of 2013). iii) The process of selection shall be conducted afresh. iv) The stay applications stand closed.
v) No order as to costs
7. In Manish Ujwal & Ors. vs. Mahrishi Dayanand Saraswati University & Ors. [(2005) 13 SCC 744], relied upon by counsel for the appellants, the Supreme Court has, in paras 9 & 10, observed as under:-
9. In
Kanpur University v. Samir Gupta, considering similar problem, this Court held that there is an assumption about the key answers being correct and in case of doubt, the court would unquestionably prefer the key answer. It as for this reason that we have not referred to those key answers in respect whereof there is a doubt as a result of difference of opinion between experts. Regarding the key answers in respect whereof the matter, is beyond the realm of doubt, this. Court has held that 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. There is No dispute about the aforesaid six key answers being demonstrably wrong and this fact has rightly not been questioned by the learned counsel for the University. In this view, students cannot be made to suffer for the fault and negligence of the University.
10. The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and (27 of 38) [SAW-186/2017] demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be mace to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reasons. We mention few of those; first and paramount reason being the welfare of the student and a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answer; the second reason is that the courts are slow in interfering in education matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answer is adopted by concerned persons, directions may have to be issued for taking appropriate action, including the disciplinary action, against those responsible for wrong and demonstrably erroneous key answers but we refrain from issuing such directions in the present case.
8. In Kanpur University & Ors. vs. Samir Gupta & Ors. [AIR 1983 SC 1230], whereupon reliance has been placed by counsel for the appellants, the Supreme Court in paras 15, 16,
17 & 20, has observed as under:-
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 (28 of 38) [SAW-186/2017] 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.
20. Twenty-seven students in all were concerned with these proceedings, out of whom 8 were admitted to the B.D.S. course, 3 were admitted to the M.B.B.S. course last year itself in place of the students who dropped out and 5 have succeeded in getting admission this year. Omitting 8 of the respondents who have been already admitted to the M.B.B.S. course, the remaining (29 of 38) [SAW-186/2017]
19 shall have to be given admission as directed by the High Court. If the key answer was not wrong as it has turned out to be, they would have succeeded in getting admission. In view of the findings of the High Court, the question naturally arose as to how the marks were to be allotted to the respondents for the three questions answered by them and which were wrongly assessed by the University. The High Court has held that the respondents would be entitled to be given 3 marks for each of the questions correctly ticked by them, and in addition they would be entitled to 1 mark for those very questions, since 1 mark was deducted from their total for each of the questions wrongly answered by them. Putting it briefly, such of the respondents as are found to have attempted the three questions or any of them would be entitled to an addition of 4 marks per question. If the answer-books are reassessed in accordance with this formula, the respondents would be entitled to be admitted to the M.B.B.S. course, about which there is no dispute. Accordingly, we confirm the directions given by the High Court in regard to the reassessment of the particular questions and the admission of the respondents to the M.B.B.S. course.
9. Lastly, reliance has been placed by counsel for the appellants on Guru Nanak Dev University vs. Saumil Garg & Ors. [(2005) 13 SCC 749], wherein in para 12, the Supreme Court observed thus:-
12. There is yet another problem, namely, that of seven questions which are so vague that they are incapable of having a correct answer. The appellant University, in respect of those seven questions, has given the credit to all the students who had participated in the entrance test irrespective of whether someone had answered the questions or not. We do not think that that is the proper course to follow. It is wholly unjust to give marks to a student who did not even attempt to answer those questions. This course would mean that a student who did not answer say all the seven questions would still get 28 marks, each correct answer having four marks. The reasonable procedure to be followed, in our opinion, would be to give credit only to those who attempted the said questions or some of them. Having regard to the circumstances of the case, we direct that for the students who attempted those questions or some of (30 of 38) [SAW-186/2017] those questions, insofar as they are concerned, the said questions should not be treated to be part of the question paper. To illustrate, if a student answered all the said seven vague questions, insofar as that student is concerned, total marks would be counted out of 772
i.e. 800 less 28 and likewise depending upon number of such questions, if any, answered by the student. The seven vague questions are Question 4 in Physics, Questions 76 and 89 in Chemistry, Questions 147 and
148 in Botany and Questions 156 and 163 in Zoology of Question Paper Code A.
10. It is also contended that the RPSC inspite of several judgments is not improving and every time there is difference between the key answers, and always the opinion of the expert committees, which are appointed, will go contrary to the standards prescribed answers, and the anomalies being committed are deprecated by this Court.
11. One of the counsel for the appellants has taken us to question No.3 and 58 alongwith the answers, which inspite of being correct, are not accepted, and the expert committee has given different opinion. In that view of the matter, it is contended that the correct answers are not being accepted and the incorrect answers have been gone into, and an attempt has also been made that the key answer, if it is calculated, which reads as under:- As per point no 1 of advertisement issued by Scheme of Examination and syllabus for the post of School lecturer:-
The competitive examination shall carry 450 marks
Means merit shall be determinate by 150 marks of 1st question paper and 300 marks of 2nd question paper After deleting 18 questions from first paper, per question, marks would be carry equal to, 150/57=2.63125 Now we prepare two different candidates A & Bs results (31 of 38) [SAW-186/2017] CANDIDATE A CANDIDATE B Paper
Correct numbers
answers Marks Weighatage Total Paper
Correct numbers
answers Marks Weighatage Total
1 40 2.6315 105.26 1 32 2.6313 84.208
2 120 2 240.00 2 130 2 260.00 Total 160 345.26 Total 162 344.208 In above condition candidate A will be selected. If we keep carry mark remain as 2, than result would CANDIDATE A CANDIDATE B Paper Correct numbers answers Marks Weighatage Total Paper Correct numbers answers Marks Weighatage Total
1 40 2 80 1 32 2 64
2 120 2 240.00 2 130 2 260.00 Total 160 320.00 Total 162 324.00 In above situation the Candidate B will be selected. So by dividing weightage marks of deleted questions to the remain questions, many candidates suffer a contrary impacts on their marks If we distribute deleted questions marks as bonus equally to all candidates then condition will be CANDIDATE A CANDIDATE B Paper Correct numbers answer Marks Weigha tage Bonus Total Paper Correct numbers of answer Marks Weighat Bonus Total
1 40 2 36 116 1 32 2 36 100
2 120 2 - 240 2 130 2 - 260 Total 160 356 Total 162 360 In above situation the Candidate B will be selected (32 of 38) [SAW-186/2017]
12. Counsel for the respondents Mr. J.P. Joshi, Sr. Counsel with Mr. Tarun Joshi, Mr. Siddharth Joshi & Mr. Khet Singh, Mr. B.L. Bhati, Goverment Counsel and Mr. Manoj Bhandari have supported the judgment and order of the learned Single Judge. Their contention is that in the government schools, which are awaiting appointment of teachers, which are more than 13000, out of which only 4000 to 5000 have been given appointment in 9 subjects. Rest of the teachers are still to be appointed. In this regard as also with regard to the contention that the non- deserving candidates will be given precedence over the deserving candidates, the argument, which has been advanced by Mr.B.L.Bhati, Government Counsel in the tabular form, is as under:- Status of 13098 Lecturer Status Subject Advert- ised Order Issued COUNSELLIN G DONE BUT POSTING ORDER NOT ISSUED Form & Recomm endation received from RPSC Form & recommend- ation not received from RPSC Total
1 ENGLISH 860 0 0 0 860 860
2 HINDI 3237 0 0 0 3237 3237
3 HISTORY 1968 0 0 0 1968 1968
4 POL. SCIENCE 2256 0 0 0 2256 2256
5 HOME SCIENCE 107 0 0 0 107 107
6 GEOGRAPHY 1210 0 0 1051 159 1210
7 SANSKRIT 364 0 0 312 52 364
8 ECONOMICS 180 0 0 154 26 180
9 PHYSICS 822 0 718 0 104 822 (33 of 38) [SAW-186/2017]
10 BIOLOGY 599 0 533 0 66 599
11 COMMERCE 247 0 236 0 11 247
12 DRAWING 145 139 0 0 6 145
13 RAJASTHANI 8 5 0 3 0 8
14 SOCIOLOGY 11 9 0 2 0 11
15 SINDHI 6 4 0 2 0 6
16 CHEMISTRY 799 742 0 0 57 799
17 MATH 276 249 0 0 27 276
18 MUSIC 2 1 0 0 1 2
19 PHILOSOPHY 1 1 0 0 0 1 Total 13098 1150 1487 2524 8937 13098
13. We have heard counsel for the parties.
14. The grievances, which have been raised in this set of appeals, are serious in nature and are required to be adjudicated in an appropriate proceedings.
15. In these appeals, which are intra court appeals, looking to the litigation, we are deciding these appeals only on the ground, which have weighed with the learned Single Judge, and the learned Single Judge, while considering the matter, has considered the facts as well as the law. We are not reproducing the judgment. In fact, right from internal page 55 to 66, the learned Single Judge, while considering the issue has dealt with each of the circumstances. The first issue regarding deletion has been dealt with by the learned Single Judge, which reads as under:- (34 of 38) [SAW-186/2017]
Learned counsel for the petitioners, however, argued that as a consequence of the 18 questions out of 75 having been deleted, the marks of the deleted questions have been distributed in remaining questions proportionately making it 2.63 marks for each question. The paper-I was divided in five parts and these parts were carrying different weightage marks. Any meritorious candidate who has answer the deleted questions asked amongst the five sections as per the scheme of the examination correctly has been put on the same pedestal to that of the candidate who has answered these questions wrong. In these circumstances, the adoption of dividing the marks on pro-rata basis would not cure the defect in the examination as it clearly put meritorious candidates in a disadvantageous position. The said argument has to be rejected outright. The deletion of the question and the distribution of their marks proportionately in remaining questions does not discriminate between the candidates. All are treated similarly and equally applies to all. The deleted questions stand deleted qua all the aspirants. None of the candidates are allotted marks on the basis of these deleted questions. Hence, no ground is made out to interfere on the basis of deleted questions.
16. We are in full agreement with the view taken by the learned Single Judge as the limitation, which has been put by the judicial pronouncement are rightly and aptly accepted by the learned Single Judge. Even the other issues, which has been raised by learned counsel for the appellants have been considered by the learned Single Judge, while relying on the judgment of the Apex Court in H.P.Public Service Commission Vs. Mukesh Thakur & Anr. [(2010) 6 SCC 759]. The relevant extract of the same reads as under:- . . . . . .It would be apt to reproduce the following observations:
20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a (35 of 38) [SAW-186/2017] discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent No.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.
In view of the aforesaid exposition of law, it is absolutely clear that this Court in exercise of its writ jurisdiction should restrain itself from exercising its power to judicially review in the decision taken by the experts in so far it relates to revised key answers in the absence of malafide. The candidates may have had a case wherein no expert committee had been constituted to go into the objections. But once, the expert committee has been formed and there is no allegation of bias or malafide, any further interference would only unsettle the settled legal position that the Courts have to show deference to the recommendation of the expert committee consisting of able and distinguished experts in the field. The view expressed by the expert committee requires to be given paramount consideration specially as there is no allegation of bias and malafides or even a whisper of extraneous consideration. In view of the above, this Court is not inclined to interfere either in the question paper or the answer keys when the correctness of all the questions has been re-examined by the expert committee.
17. Taking into consideration the jurisdiction of the appellate court, we are of the opinion that the view taken by the learned Single Judge declining to exercise the discretion has been rightly done. Even after the expert committee, the view which has been taken for deletion is the call of the day on the given date and it is well known that every opinion put forth on one day, changes on the next day and the learned Single Judge has rightly accepted the same. Even in our opinion, changing the view taken by the (36 of 38) [SAW-186/2017] learned Single Judge would be bad in law. But ultimately the sufferers are the students and their guardians.
18. Taking into consideration the fact that 13000 teachers are awaiting the government schools, in absence whereof poor students and their guardians are the sufferers. In that view of the matter, to put an end to the controversy, we are opinion that the view taken by the learned Single Judge is required to be accepted and the same is accepted. However, by this order, we are issuing certain directions to the RPSC, which are required to be implemented forthwith. (a) The RPSC will ensure that the answer keys are in place with the help of an experts opinion at the time of finalization of the question papers. If the question paper or answer key are found to be erroneous, the person concerned who has prepared the same shall be debarred from the appropriate position of examination at RPSC, and his remuneration shall be stopped. (b) If such person/expert is a government servant then appropriate departmental action shall be initiated against such person for playing with the life of candidates and causing disruption of recruitment process where masses of unemployed youth are participating. Therefore, the RPSC shall have direct responsibility to ensure zero error in the question paper (37 of 38) [SAW-186/2017] and answer key before letting them out in the public domain. (c) The RPSC shall have take all necessary steps for appointment of the expert committee/person so as to ensure that disputed question papers and Answer Keys giving rise to mass litigation and generating perennial frustration to the unemployed youth is brought down to considerable level. (d) The RPSC itself shall constitute a committee of three of its members who shall study the process being adopted by UPSC and other State PSC and submit a report to this Court within a period of 60 days so as to ensure that the mass disruption of selection process does not take place on account of wrong question papers and wrong answer keys. Such report shall be placed before the concerned Division Bench before being made applicable and if necessary, further orders shall be passed by this Court at that stage. The report shall be implemented thereafter and it is expected that in future, such harassment is not caused to the teaming millions of unemployed youth.
19. We regret that we are dismissing these appeals. But with heavy heart, we have issued the aforesaid directions and (38 of 38) [SAW-186/2017] hope that in future, the RPSC will not adopt this practice. Hence, the appeals being devoid of merit deserve to be dismissed.
20. These appeals are dismissed accordingly. (DR. PUSHPENDRA SINGH BHATI)J. (K.S. JHAVERI)ACTING C.J. Skant/Mohit Tak