HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER All these Original Applications are similar and identical in nature hence they are disposed of by this common order.
2. The applicants in O.As are similarly placed and are included in rank lists for appointment to the post of Telecom Technical Assistant in the BSNL. They are included in the waiting list. The applicants are making similar contentions of wrong answer key. In O.A.No.133/2014 the 1 st applicant is at Sl.No.17 and the 2nd applicant is at Sl.No.8 in the waiting list of Malappuram SSA and Alappuzha SSA respectively. In O.A.No.143/2014 the 1 st applicant is at Sl.No.1 and the 2nd applicant is at Sl.No.4 in the waiting list of Kottayam SSA and Ernakulam SSA respectively. In O.A.No.285/2014 the applicant is at Sl.No.11 in the waiting list of Kannur SSA. The applicants aver that they were given a much lower rank than they really deserve on the basis of their performance in the examination. The applicants admit that some of the objections raised by them in their representations regarding the wrong answers given in answer key have been accepted by the respondents. Further it is stated that there are at least 16 mistakes in the revised answer key. Some of the answers given by BSNL are wrong when compared with the standard text books on the subjects such as 'Communication Systems' by 'Simon Haykin', 'Electronic Devices and Circuit Theory' by 'Robert Boylestad' and 'Louis Nashelsky', 'Modern Control Engineering' by 'Katsuhiko Ogata', 'Op-Amps and Linear Integrated Circuits' by 'Ramakant A Gayakwad' etc. Applicants also admit that respondents have given one mark to all candidates for one question each in Part I and Part III, viz. question No.7 in Part I and question No.68 in Part III, on the ground that the choices given for these questions were wrong. Applicants have also made various presumptions on the basis of which they would be placed in a position of advantage in the grant of marks. The applicants in para 17 of the O.A.No.133/2014 have also detailed the changes effected in first and second rank lists wherein ranks have undergone a change after effecting changes in the marks adopted in the first instance. Applicants in para 19 of the O.A.No.133/2014 have challenged the answer to multiple choice questions provided by respondents and suggested what in their opinion would construe as the correct answer. Reliefs sought for by the applicants are to appoint an expert committee in the field of Electronics and Communication Technology for scrutiny of Annexure A-12 and for preparing a correct and proper answer key for the questions given in Annexure A-2 and direct the BSNL to modify Annexures A-13 and A-14 on the basis of that answer key and to make appointments only from that modified rank list.
3. Respondents in their reply argue that information sought by the applicants was supplied to them, except the copy of OMR answer sheet of the candidates. The copy of the answer sheet was not supplied as the applicants are third party in respect of the information required. The information sought is exempted from disclosure under section 8 1(j) of RTI Act 2005. Respondents bring to our notice that the OMR answer sheet of the examination was provided with a carbonless copy. Anything written on the OMR answer sheet will get copied on the carbonless sheet, which is attached with the main OMR sheet. Impression of personal details, choices (answers) given by the candidate in the main answer sheets etc. will be there in the carbonless copy. On completion of the examination this copy is supplied to the candidate. The candidate can keep it as a record for further reference. In the instruction given to candidate while issuing the hall permit, it was instructed that the candidates must ensure to collect copy of his answer sheet (carbonless sheet) from the invigilator after the examination is over. It was also instructed that no correspondence or request afterwards to supply a copy of the answer sheet shall be entertained. The carbon less copy is a true replica of the answer sheet of the candidate. Despite above, the copy of the OMR sheets were supplied when the candidates themselves sought the same under RTI Act 2005. However, answer sheet of third party was not given to applicants since disclosure of the same was exempted under Section 8 1(j) of the Act. Hence the applicants are supplied with the carbonless copy of their answer sheet. They are supplied with marks obtained by them and final answer key under RTI Act.
4. Respondents submit that based on the marks secured by the candidates they were placed in the merit list. Candidates who qualified in the examination and who do not find a place in the merit list were placed in the waiting list, based on the marks obtained by the candidates. In the event of drop out/non availability of successful candidates who have been sent offer letter for appointment as TTA, the waiting list may be operated to fill up only the unfilled notified vacancies arising out of dropouts of successful candidates strictly in the order of merit in the waiting list while cancelling candidature of earlier successful candidate. If there is a dropout lrom OBC quota, one OBC candidate only will be selected from the waiting list. The age limit for OC quota is 27 years as on 13.5.2013. The upper age is relaxable by 5 years for SC, ST and 3 years for OBC candidates ie. for OBC quota the age limit is 30.
5. The result published on 2.1.2014 and 28.1.2014 are produced by respondents as Annexure R2(a) and Annexure R2(b) respectively. In Malappuram SSA Shri Arjun K.P & Abhilash T were included as OC 8 and OC 11 as per merit. They got qualifying marks of general candidates ie. without relaxed standards. But they got relaxation in age as they have crossed
27 years on the cutoff date. As these candidates have got relaxation in age they will be eligible for OBC quota only. On realising this mistake which happened inadvertently, a corrigendum was issued and in the corrigendum it was mentioned that result of some candidates who got age relaxation under OBC quota were inadvertently included in OC list. Due to this, suitable modifications have been made in the result published. At the time of publishing the result it was stated in the result that BSNL reserves the right to cancel/modify the result of any candidate who might have been declared successful mistakenly/inadvertently at any time when ever such mistake is noticed/detected. Thus respondents had notified the possibility of correction of mistakes in the result notification. Shri Arjun KP whose date of birth was 1.4.1986 (age more than 27 years as on the cutoff date ie. 13.5.2013) and Shri.Abhilash T whose date of birth was 16.6.1985 (age more than 27 years as on the cutoff date ie. 13.5.2013) were shifted from OC quota to OBC Quota (OBC 2 and OBC 3). Shri Shamseermon KP who was in OBC quota as OBC 3, who got qualified in general qualifying standards and whose date of birth is 17.12.1989 (age less than 27 years as on 13.5.2013), was shifted to OC quota as OC 14. The first candidate in the waiting list Shri.Jithin Murali was included as OC 13 as per his mark. The last candidate in OBC quota Sri Riyaz C was shifted to waiting list. Due to these changes the serial number of some candidates also was changed and consolidating all these changes the corrigendum was issued.
6. The contention that these corrections were done after the receipt of the RTI applications are absolutely baseless. The fact that SC/ST/OBC candidates should be given relaxation in age was inadvertently omitted during the preparation of results due to which the date of birth of the candidates was not taken into account. After publication of the results some of the SSAs pointed out the mistake that some candidates who are included in the OC quota on the basis of the marks they secured in the examination have to be brought to OBC quota since they had exceeded the age limit for OC quota. On identification of this inadvertent error, all the select lists were re-verified and necessary corrections were incorporated.
7. Respondents argue that the entire recruitment process was transparent and they had given all the documents that does not attract the provisions of Section 8 of RTI Act 2005 to several candidates who had appeared in this examination and made a request thereof. Only 5 candidates from a total of 9757 candidates have raised allegations against the respondents. Respondent submits that as there is no choice in the answers to question number 7 in part 1 and question number 68 in part III, one mark was given to all candidates including the applicants herein. The final answer key was prepared by high level officers who have knowledge in the subject. Copy of the OMR answer sheet as requested in RTI was not given as the request was for the answer sheet of a third party. The candidates who applied directly under the RTI Act 2005 for their own answer sheets, the same has been supplied. It is also submitted that several candidates who had appeared in this examination had requested for a copy of their answer sheets under RTI Act 2005 and they were given the copy of their answer sheets.
8. The respondents contest the comparative study of questions and answers in paragraph 19 of the Original Application No.133/2014. The provisional answer key was reviewed by the paper setter on the basis of representations received from the candidates. The comments of the paper setter based on the representations of the candidates were placed before an expert committee consisting of senior level officers of BSNL who have several years of experience in the field of telecommunications with thorough knowledge and understanding on the subject. The decision taken by the expert committee was approved by the competent authority in BSNL. We find no reason to disbelieve the contention in the sworn affidavit that experts from the respondent department had been engaged in the exercise to prepare the answer key.
9. Respondents quoting from Swamy's Compilation on Reservation & Concessions submit that 'Rosters are only an aid to determine the entitlement of different categories with regard to the quota reserved for them. They are not to determine seniority.' Annexures A7 and A8 produced along with the Original Applications are rank list according to the merit obtained in the examination showing the quota in which they are accommodated. Respondents also contest the averments made by the applicants regarding Roster points in para 26. DoPT has revised quantum of reservation for SCs, STs & OBC in case of direct recruitment to Gr.C & Gr.D posts normally attracting candidates from a region vide OM No. 36017/1/2004-Estt.(Res) dated 5.7.2005. As per the directions contained in the said OM, the quantum of reservation to be followed in Kerala Circle is, 10% for SC, 1% for ST and 27% for OBC. The cadre of TTA being Gr.C cadre and recruitment being done regionally, the percentage of reservation for direct recruitment quota is followed as such and 100 point roster is maintained. Respondents in para 14 have given the details of roster points which have not been challenged with any detailed arguments in the rejoinder by the applicants.
10. Heard the counsel for the applicant and respondent and perused the written submissions made. The applicants have not made the affected parties a party to these proceedings and hence the interest of those selected vis-a-vis the examination remain un-represented.
11. The direct recruitment selection for the post of TTA was through a competitive examination based on total marks of 200. This paper comprised three parts - Part I for General Ability (20 marks), Part II Basic Engineering (90 marks) and Part III Specialization (90 marks). Each question carried one mark and for each wrong answer 25% of the marks for that question will be deducted. The minimum qualifying marks in the paper was 40% for general category and 33% for reserved and PH category. The minimum qualifying marks in each of the three parts of the paper was 30% for OC and 20% for reserved category. For OC minimum marks for a pass in each of the three parts was 6, 27 and 27 respectively. In respect of reserved category the same was 4,
18 and 18 respectively. The exam notification carried the information that all instruction/information relating to the exam will be published in the website and all applicants were instructed to refer to the website regularly.
12. 9757 candidates appeared for the exam from Kerala State. Provisional answer key of the exam was published in 15.7.2013 and candidates were given
11 days to send emails regarding discrepancies noted if any. Final answer key was not published. It was however supplied to all who had made request for the same under RTI Act. Responding to the allegation of applicants regarding selection of Shibin Sathar it is stated that he had secured 9.25, 55.75 and 28 marks respectively in the three parts ie. 105.75 marks. Similarly Rahul V.K had got 6.75, 56.75 and 38.45 for the three parts ie. 101.75 marks. Applicant Rejin K.R got only 93 marks which was very much less. The final selection was to be made on total marks secured in the three parts and raising a controversy or citing marks in one part for qualifying may not be making an appropriate representation. All candidates were allowed to carry away the carbonless copy of answer sheet and those who requested for copies of their answer sheets under RTI were also provided the same. Hence there is no lack of transparency in the examination process.
13. The response of examinees to provisional answer key was sent to paper setter for comments. An expert committee of senior officers having knowledge and experience of the subject was also constituted to scrutinize the answer key, the representations received, comments of paper setter and thereafter final answer key was drawn up. Hence the relief of applicants of an expert panel to assess answers has already been complied. The respondents contest the allegation that the revised answer key contains mistakes. Of 9757 candidates who appeared in the exam only 5 candidates have raised objections to the answer key and hence dissatisfaction, if any, was limited to this small number only. The same answer key was applied for all the 9757 candidates and there has been no discrimination in the standard of evaluation applied. The same yardstick has been applied to all who appeared in the examination. Simply because a candidate expects selection, he does not get any vested right for appointment or a right to determine in which way a question paper is to be answered. As long as respondents have taken care to constitute an expert committee to address the applicants contentions and finalized the answers thereon, the applicants should not have any apprehensions. It is settled law that a candidate who had taken part in the selection process as per procedure laid down and intimated and of which he was fully aware, is not entitled to question the same. Only because the result and outcome of the exam is not palatable to him, he cannot question the process of exam as unfair and quote lacuna thereof [See the decisions of Hon'ble Supreme Court in Pitta Naveenkumar Vs. Raja Narasaiah Zangiti (2006) 10 SCC 261, Munindra Kumar Vs. Rajiv Govil (1991) 3 SCC 368, Rashmi Mishra Vs. MP Public Service Commission (2006) 12 SCC 724].
14. Wherever there were no choice of answer, all examinees have been treated equally by giving them one mark for the question including the applicants and no person has been given any advantage. The applicants contention that their answer was correct and hence only they should be awarded marks and marks denied to others who did not have a similar answer is not acceptable. It is for the respondents to set the question paper and also draw up the answer response from the multiple choice provided. The respondent has called for responses from candidates to the answer key, taken note of the same with the help of the question setter and an expert committee and made corrections wherever necessary. It is not a case as if the persons who appeared and attempted the examination should be allowed the last word on the correctness of the answers as all examinees, in the normal nature in such a situation, may carry the view that his answer is correct and he carries the right to be selected. It is not for the applicants to demand that their point of view is to be treated as final and binding. Somewhere there is a need to draw a line or the system of award of marks would turn into a endless process of debate on what is right or wrong. The applicants have no case of ambiguous import in the multiple choice. Applicants only contest the correctness of choice of answer made and their observations have been submitted and taken note of by expert committee constituted for the purpose. The Tribunal is not a Telecom Engineering expert who can comment on the correctness of the answers provided. Though applicants contend that the final answer was not published, the respondents aver that they have provided the answer key to any person who had made a request under RTI. Hence it is also not a case where the answer key was kept under wrap and not disclosed. Even carbonless copy of answer sheets of examinee was provided to all examinees before they left the exam hall. Request for answer sheet under RTI has also been complied with. However, when such a request for answer sheet of another examinee was made, the same was denied under the provisions of Right to Information Act, 2005 as non disclosure to third party.
15. The Tribunal while doing judicial review should not enter findings on facts for which it may not possess the expertise. The respondents have taken care to publish the provisional key, invite objections, got the objections scrutinized by question setter and a committee of experts who must be treated as having acted bonafide and not in any manner actuated by malice did their part correctly. High Court of Kerala has held that this method is to be followed in the said examination system in Nowfal H Vs. Kerala Public Service Commission, Trivandrum 2014 (3) KHC 349.
16. Apex Court in a catena of decisions has held that judicial review is not an appeal from a decision but a review of the manner in which the decision was made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. In these cases applicants have been given a chance to express their views on the correctness of answers and the same was placed before an expert committee. They considered it and a final answer list was drawn up. There is no need to convert this exercise into a process of endless scrutiny and review. Further only 5 out of 9757 candidates have come forward with these allegations. That itself will falsify the allegation so put forward. We are not here to question the erudition, knowledge or the expertise of the experts nor are we to question the competency of such experts. There was no large scale discontentment among the candidates. There was no unfairness or unreasonableness also. Only 5 among the candidates (nearly ten thousand) have come forward with the allegation as stated in these O.As. There is no illegality or unfairness in the conduct of the selection process nor is there any malafides or favourtism. The whole selection process involving nearly ten thousand candidates cannot be upset because of such allegations made by 5 among them. We find no reason to interfere with the selection process undertaken by the respondents.
17. Hence these O.As lack merit and are accordingly dismissed. No order as to costs. (Dated this the 2nd day of September 2016) (P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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