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2016 DIGILAW 427 (RAJ)

Bajranglal v. State of Rajasthan

2016-03-16

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerender Singh Siradhana, J. 1. This is second round of litigation by the petitioners who participated in the recruitment process initiated by the Rajasthan Public Service Commission (for short, respondent- Commission) for appointment to the post of Ayurved Nurse Compounder Junior Grade by an advertisement dated 13th August, 2008. 2. Briefly, the skeletal material facts necessary for appreciation of the controversy raised are that the petitioners, in response to the advertisement, submitted their candidature for consideration for appointment to the post of Ayurved Nurse Compounder Junior Grade. Having participated in the written examination conducted on 29th June, 2009, the petitioners realized discrepancy in the multiple choice answers to the questions, which was the criteria for assessment of the participants. Relying upon the opinion of the Hon'ble Supreme Court in the case of Kanpur University v. Samir Gupta, AIR 1983 SC 1230 , Lalit Mohan Sharma v. State of Rajasthan and others, 2005 (8) RDD 3071 and Manish Ujjawal v. State of Rajasthan, 2005 (8) RDD 257, the petitioners, along with others, instituted writ petition which was disposed off, vide order dated 26th May, 2011, with a direction to the respondent-Commission to consider the representation along with material furnished by the petitioners with their representation. The Secretary of respondent-Commission, with the concurrence of its Chairman, got examined the disputed questions through an expert body as directed by this Court. Consequent upon decision of the expert body, option No. 1 with reference to question 'Normal Pulse Rate is; 'providing for 72 to 80/mt' was stated to be more correct answer. 3. Similarly, both option No. 1 and 4, to the question as to 'Normal respiration rate': stating it to be 18 to 20/mt' and 16 to 20/mt', were treated to be as correct answers and the petitioners have been awarded marks accordingly. Since the petitioners were not allotted marks for the question with reference to 'Normal Pulse rate' for the 'expert body' opined option No. 1 providing for 72 to 80/mt' as more correct; they have again approached this Court; praying for the following reliefs: "(i) Quash and set aside the impugned order dated 18.10.11 (Annexure 15, 16, 17) and further pleased to. (ii) direct the respondents to re-evaluate the answers of the question Nos. 25, 26 and 61 of the Question Paper of Series 'A' and Question Nos. (ii) direct the respondents to re-evaluate the answers of the question Nos. 25, 26 and 61 of the Question Paper of Series 'A' and Question Nos. 51, 57 and 64 of series B or delete these questions Nos. 25, 26 and 61 of series A and Question Nos. 51, 57 and 64 of Series B from the Question paper and then award the correct number of marks obtained by all the candidates. (iii) direct the respondents to revise the ranking and the merit list and prepare a fresh merit list on the basis of correct answers of the Question Nos. 25, 26 and 61 of the Question Paper Series 'A' and Question Nos. 51, 57 and 64 of Series B and appoint the petitioners on the post of Ayurveda Nurse Compounder with all consequential benefits, if they are found suitable, or (iv) direct the respondents to award 8.15 marks to the petitioners and after adding these 8.15 marks in the secured marks of the petitioners, direct them to appoint them on the post of Ayurveda Nurse-Compounder Junior Grade with all consequential benefits. (v) further pleased to quash and set aside the impugned order dated 10.10.11 (Annexure 20) and 23.8.11 (Annex. 21) passed by the Respondent No. 3 and further pleased to direct the RPSC to supply the report of Expert Committee and the Answer key of the Nurse Gr.II Exam to the petitioners forthwith without any delay." 4. Learned counsel for the petitioners, Mr. Anoop Dhand, reiterating the pleaded facts and grounds of the writ application, emphatically argued that though both the options (1) 72 to 80/mt. and (2) 64 to 72/mt.; are correct and the petitioners answered option No. (2), but in view of the opinion of the expert Committee, option No. (1) being more correct; no marks have been awarded to them. If marks were awarded for the aforesaid question No. 25 in Series 'A' and same question No. 51 in Series 'B'; the petitioners would have been in the select list for the last cut off marks is 97.92. According to the learned counsel, petitioners (Pyarelal and Bajranglal), would have secured 2.04 marks in addition and subtracting the component of negative marking to the extent 0.679, their total marks would have been more than the last cut off aforesaid. 5. According to the learned counsel, petitioners (Pyarelal and Bajranglal), would have secured 2.04 marks in addition and subtracting the component of negative marking to the extent 0.679, their total marks would have been more than the last cut off aforesaid. 5. In response to the notice of the writ application, the State-respondents as well as respondent-Commission, have filed their counter affidavits separately. While supporting the stand of the Rajasthan Public Service Commission in declining the selection of the petitioners even after revision of the merit list, it is contended that the matter with reference to disputed questions was referred to an expert body; in compliance of the directions issued by this Court in earlier writ proceedings. The expert body on a consideration of the matter, has furnished its opinion, and accordingly the marks have been revised in the answer-sheets of the petitioners. For there was no change in the marks secured by the petitioner-Madan Lal Bhambu, he is not entitle to any relief. In the case of Bajrang Lal Sharma, the earlier marks obtained 93.84, increased to 95.88. Similarly, in the case of Pyare Lal, who earlier obtained 92.48 marks, on a revision of the assessment, secured 94.52 marks. Thus, even after increase in the marks, the petitioners were found far below than the last cut off marks i.e. 97.92. 6. Learned counsel, Mr. S.N. Kumawat, appearing for respondent-Commission, while supporting the stand in the counter-affidavit, vehemently argued that the controversy raised herein is no more res-integra in view of the opinion in the case of Subash Chandra Verma & Others v. State of Bihar & Others, 1995 Supp. (1) SCC 325, wherein the Hon'ble Supreme Court while distinguishing the case of the Kanpur University v. Samir Gupta, (1983) 4 SCC 309 relied upon the case of Shantanu Singh (Dr) v. State of U.P. AIR 1993 All 85 and observed that the candidates are required to tick mark the answer which is the most appropriate out of the plurality of answers. Furthermore, the same difficulty must have been felt by all the participants to the recruitment process, therefore, the petitioners alone cannot complain of the alleged discrepancy. 7. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 8. Furthermore, the same difficulty must have been felt by all the participants to the recruitment process, therefore, the petitioners alone cannot complain of the alleged discrepancy. 7. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 8. Indisputably, on an earlier occasion when the petitioners approached this Court complaining of discrepancy in the questions and multiple answers wherein the plural options could be treated as correct answer; this Court while disposing off the writ application, along with other connected matters, observed thus: "Petitioners may therefore make representation to the Secretary of respondent Rajasthan Public Service Commission and produce along-with that books/authorities/relevant material, on the basis of which they claim answers of above referred questions to be incorrect. The Secretary of respondent RPSC with concurrence of its Chairman, may then issue order for examination of those questions through expert body from the filed of subject. If, on consideration of that representation, it is found that grievance of petitioners is genuine, it may revise the merit list. However, consideration of petitioner for the appointments may be confined to the posts which have either remained vacant out of the notified/advertised posts pursuant to the advertisement in question, or are otherwise lying vacant with the department in addition thereof. The petitioners may make such representation with all material available with them, within a period of two weeks and necessary exercise shall be undertaken by the RPSC within a period of three months thereafter. All the writ petitions accordingly stand disposed of." 9. In response to the representation addressed by the petitioners along with the books/authorities/relevant material, the matter was referred to the expert body with reference to the two questions (No. 25 and 26 of question paper series 'A' and question No. 51 and 57 of question paper series 'B'), which reads thus:- “Question No. 25 in Series ‘A’ Question No. 51 in Series ‘B’ Normal Pulse rate is: (1) 72 to 80/mt. (2) 64 to 72/mt. (3) 80 to 90/mt. (4) 84 to 94/mt. Question No. 26 in Series ‘A’ Question No. 57 in Series ‘B’ Normal respiration rate: (1) 18 to 20/mt. (2) 14 to 18/mt. (3) 20 to 30/mt. (4) 16 to 20/mt. 10. (2) 64 to 72/mt. (3) 80 to 90/mt. (4) 84 to 94/mt. Question No. 26 in Series ‘A’ Question No. 57 in Series ‘B’ Normal respiration rate: (1) 18 to 20/mt. (2) 14 to 18/mt. (3) 20 to 30/mt. (4) 16 to 20/mt. 10. The expert body on a consideration of the alleged discrepancy with reference to question No. 25/'A'-51/'B' opined that option No. 1, which provided for 72 to 80/mt., as more correct answer. With reference to question No. 26/'A'-57/'B' relating to 'Normal respiration rate', the option providing for '(1) 18 to 20/mt.' has been treated to be correct. However, according to petitioners option '(4) 16 to 20/mt', as they answered, is also correct. 11. In the backdrop of the opinion furnished by the 'expert body', the assessment of the petitioners was revised and accordingly in the result there was a change in the marks of petitioner-Shri Bajrang lal Sharma wherein his marks increased from 93.84 to 95.88. The marks of petitioner-Shri Pyarelal got increased from 92.48 to 94.52, whereas there was no change in the marks of the petitioner-Shri Madan Lal Bhambu, who secured 92.48 marks. Thus, even after reassessment of the answer-sheets of the petitioners they were found far below the last cut off marks being 97.92, which has resulted into their non-selection. 12. In the case of Subash Chandra Verma (supra), the Hon'ble Supreme Court while examining several grounds of challenge as to the objective test as well as the viva voce, held thus: "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. Mr. Kamla Kant Tripathi in his counter affidavit talks of only two questions. 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. Mr. Kamla Kant Tripathi in his counter affidavit talks of only two questions. The High Court had come to the conclusion that 24% questions are confusing and controversial and do not adhere to the multiple type of questions. Mr. M.L. Verma, learned Counsel relying on Kanpur University and Others v. Samir Gupta and Others, (1984) 1 SCR 73 would submit that the finding of the High Court on this aspect is fully justified. We are unable to uphold this contention. Normally speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise. In Kanpur University's case (supra) relied upon by Mr. M.L. Verma, the following observations occur at pp. 81-82: 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 rationalization. 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. 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. 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 penalize 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. That is not the position here. In Dr. Shantanu Singh v. 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." 13. Learned counsel for the respondent-Commission has also referred the recent opinion of the Division Bench in the case of Umesh Kumar Sharma & Others v. Sudarshan Gaur & Others, (Civil Special Appeal (Writ) No. 345/2013), along with connected matters, decided on 11th April, 2014, wherein with reference to the view expressed by the expert Committee, the Division Bench observed thus: "The views expressed by the expert committee in the case in hand vis-à-vis the disputed questions/answer key, as has been dilated hereinabove, in our estimate, ought to be accorded due paramountcy. No allegation of bias or mala fide or extraneous consideration for collateral objectives has been levelled, and rightly. In the overall factual background and the noted litigational events encompassing the same recruitment process with strikingly common orientations, we are of the unhesitant opinion that the impeachment of the writ petitioners of the results declared on 18.11.2012 and the final answer key published on 19.11.2012, does not merit acceptance. It thus fails. In the overall factual background and the noted litigational events encompassing the same recruitment process with strikingly common orientations, we are of the unhesitant opinion that the impeachment of the writ petitioners of the results declared on 18.11.2012 and the final answer key published on 19.11.2012, does not merit acceptance. It thus fails. In the face of the determination made hereinabove and the overwhelming singular factual backdrop, as evidenced by Praveen Singh & Others (supra), we are of the view that the debate on the manner of distribution of marks does not merit further scrutiny and that too, at the instance of the present writ-petitioners. Our attention as well has not been drawn to any enjoinment in the Rules or a conscious decision of the Commission in this regard." 14. Similar view was expressed by the another Division Bench while adjudicating upon a Batch of Writ applications lead case being Civil Writ Petition No. 12277/2015 (Kanhya Lal Sain v. Registrar, Examination, RHC), vide judgment and order dated 6th October, 2015, relying upon the opinion of the Hon'ble Supreme Court in the case of Dr. Basavaiah v. Dr. H.L. Ramesh and Others, (2010) 8 SCC 372 and Sajeesh Babu K. v. N.K. Santhosh and Others, (2012) 12 SCC 106 , holding thus: "It is true that in the 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 and that kind of system of examination involves merely the tick-marking of the correct answer and it leaves no scope for reasoning or argument. The answer is 'yes' or 'no' and that is why the questions have to be clear and unequivocal and if the attention is drawn to any defect in a model key answer or any ambiguity in a question, set in the examination, it is always advisable to take a prompt and timely decision before declaring the final result of the Examination to rule out all the errors & possibilities as far as possible. The law is clear that if there is a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for the petitioners only, thus, no interference is required. The law is clear that if there is a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for the petitioners only, thus, no interference is required. This has also been settled by the Apex Court that in academic matters, the court should be extremely reluctant to substitute its own view in preference to those formulated by professional persons possessing expertise and rich experience on the subject and the opinion of the Experts ordinarily cannot be made the subject of judicial scrutiny simply because some authors expressed their views differently in their books or articles on the subject. Interference by the Court in such matters should be in rare and exceptional circumstances, if it is found beyond the realm of doubt that key answer published by the expert is incorrect. At the same time, even if in case there is doubt as to which of the answer is correct then too answer as accepted by the subject expert should be given preference and adhered to. This is necessary to keep the whole system of examination workable and intact and this Court always endeavor to see that examination system is not rendered unworkable by creating doubts and uncertainties." 15. In the case of Ramdhan Kumawat vs. The State of Rajasthan & Another, Civil Writ Petition No. 10622/2014, along with connected matters, decided on 18th November, 2014, a Coordinate Bench of this Court examined the controversy wherein the recruitment to the post of Teacher Gr. III (Level I and Level II) made in various Districts for various subjects, on the basis of examination conducted in pursuant to the advertisement dated 24-2-2012, wherein the result was revised time and again. From a glance of the factual matrix, it is evident that the facts of the case are entirely different and distinguishable from one operating in the instant case at hand. Hence, the opinion of the Coordinate Bench is of no help to the petitioners. 16. In the case of Dr. Basavaiah v. Dr. H.L. Ramesh & Others, (2010) 8 SCC 372 , the Hon'ble Apex Court of the land held thus: "21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. 16. In the case of Dr. Basavaiah v. Dr. H.L. Ramesh & Others, (2010) 8 SCC 372 , the Hon'ble Apex Court of the land held thus: "21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointment were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture." 17. Similarly, in the case of Sajeesh Babu K. v. N.K. Santhosh & Others, 2012 (12) SCC 106 , the Hon'ble Supreme Court held that Courts should be slow to interfere with the opinions expressed by the experts, observing thus: "20. It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala-fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala-fides against the three experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee." 18. From the materials available on record, it is evident that the discrepancy, noted by the petitioners, was examined by the Expert Committee. The result of the petitioners has been revised in the backdrop of the opinion of the Expert Committee. From the materials available on record, it is evident that the discrepancy, noted by the petitioners, was examined by the Expert Committee. The result of the petitioners has been revised in the backdrop of the opinion of the Expert Committee. However, despite of enhancement of marks in case of two petitioners, they were still found far below the last cut off and in the case of one of the petitioners (Madan Lal Bhambu), no change in the marks was recorded. 19. For the reasons and discussions hereinabove, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed. 20. Ordered accordingly. 21. However, in the facts and circumstances of the case, there shall be no order as to costs.