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2017 DIGILAW 351 (RAJ)

Santara Bai Bairwa v. State of Rajasthan

2017-02-01

AJAY RASTOGI

body2017
JUDGMENT : Ajay Rastogi, J. 1. Instant batch of writ petitions have been filed by the candidates who have participated in the selection process held for the post of Nursery Teacher Training (NTT) included in the Schedule appended to the Rajasthan Woman and Child Development (State & Subordinate) Service Rules, 1998 & notified vide advertisement dt. 27.08.2013. 2. The facts, in brief, as consented, have been noticed from Writ Petition Nos. 8464/2016 & 1422/2016 are that the advertisement for 1148 vacancies of Nursery Teachers Training (NTT) came to be notified by the respondents vide advertisement dated 27.08.2013 and the selection is based solely on the written examination and the syllabus is of pre-primary level and related to the overall development of child from 0 to 6 years and such of the candidates who are holding Senior Secondary with two years diploma in NTT recognized by NCTE and affiliated by SCERT are eligible to participate in the process. 3. It may be relevant to note that initially the department issued an advertisement holding selection process pursuant to the advertisement dt. 27.08.2013 and it reveals that thereafter the selection process was handed over to the Rajasthan Subordinate and Ministerial Service Selection Board (hereinafter referred to 'the Board') and in furtherance thereof, press note was released on 21.03.2016 laying down the procedure to be followed by the Board and as per its Cl. 12 opportunity was afforded to the candidates to submit their objections on-line within 72 hours if there is any error in the question paper and the candidates participated in the written examination without any demur, held on 03.04.2016, which was a multiple choice question paper of one mark each, according to the syllabus available on their website and assessible to the candidates and on the instruction sheet provided to the candidates there was Note-6 that 1/3 part of the mark (s) of each question will be deducted for each wrong answer and there will be negative marking for wrong answers. 4. After the written examination was held on 03.04.2016 invoking cl. 4. After the written examination was held on 03.04.2016 invoking cl. (12) of the press note inviting on-line objections from the candidates regarding error in question paper within 72 hours, it has come on record that in all objections were received for 7 questions and that was referred to by the Board to the expert committee and after examined by the Key Validation Committee it was placed before the Board in its 38th Meeting and on the recommendations made by the expert committee & Key Validation Committee question No. 56 of 'A' series and corresponding series was deleted and the result was forwarded to the State Government of those candidates who secured minimum 40% qualifying marks in the written examination on 28.04.2016 (Annex.R-2/2). In furtherance thereof, the State Government declared category-wise cut-off marks and result of the selected candidates on 06.05.2016. 5. Some of the candidates, under Right to Information Act, 2005 asked for answer key which was made available to them, on demand, on 09.05.2016 (Annex.9) and thereafter the aggrieved candidates approached this court by filing the batch of writ petitions on many-fold grounds which are summarized as under:- "(1) Similar cut-off marks have been notified of male and female which is not possible and this appears to be an apparent error in the process of selection. (2) The answer key was not uploaded and made available only on demand under the Act of 2005, that has deprived the candidates in submitting their objections in reference to the answer key and their right of fair selection has been seriously affected and the procedure followed by the respondents cannot be said to be fair and transparent, needs indulgence. (3) There is also an objection that there is no provision of negative marking provided under the scheme of rules and such practice which has been adopted by the respondents is in contravention of the scheme of Rules. (4) Few of the candidates have objected regarding the procedure adopted by the Board who was mere the recruiting agency and not holding any competence to call for the objections and examine the same." 6. It has been prayed to quash the result and conduct the examination afresh and because of the interim protection granted by the court not to make appointments vide order dt. 09.08.2016, with the consent of the parties the matter was finally heard. 7. It has been prayed to quash the result and conduct the examination afresh and because of the interim protection granted by the court not to make appointments vide order dt. 09.08.2016, with the consent of the parties the matter was finally heard. 7. Counsel for the petitioner jointly submit that the cut-off marks of written examination which have been notified are same of male & female in the respective category which is practically not possible and it appears that there is some error in the procedure followed by the respondents and it requires interference by this court. 8. Counsel submits that answer key was not uploaded by the respondents and that has deprived them of their valuable right to raise objections and in support of the same what has been pleaded in the writ petition is stereotyped in all the writ petitions. As there was two question booklets of A & B Series, this court is taking note of 'B' Series which is by & large pleaded by the petitioners in totality has been indicated in the tabular chart in para-14 of the writ petition, which reads ad infra:- “Question Booklet – Series ‘B’ Question S. No. of  Booklet ‘B’ Right Answer as  per Board Right answer as per petitioner, according to book “shiksha Manovigyan” & Kilol 11 D A 24 A C 32 A C 35 B C 41 D - 57 A D 74 B A 79 D C 87 A D 90 A C 9. It may be noticed at this stage that no tangible evidence has been placed by either of the petitioners on record to support that answers, as proposed in the key booklet, are incorrect and how far the answer which they have proposed for the above questions are the only correct answers. This court would further like to record that except the tabular chart, satisfactory evidence in support has not been placed on record and the extract of the books relied upon placed along with the rejoinder reaches to no conclusion. 10. Counsel further submits that there is no provision of negative marking under the scheme of Rules and has been adopted by the respondents in the present process which is violative of Art.14 of the Constitution and beyond their competence unless prescribed in the Rules, the procedure of negative marking could not have been acted upon by the respondents. 11. 10. Counsel further submits that there is no provision of negative marking under the scheme of Rules and has been adopted by the respondents in the present process which is violative of Art.14 of the Constitution and beyond their competence unless prescribed in the Rules, the procedure of negative marking could not have been acted upon by the respondents. 11. Reply to the petitions have been filed by the respondents and so also by the selected candidates participating as an intervener under orders of the court. 12. It has been averred by the respondents in the reply that written examination was held on 03.04.2016 and there were 100 multiple choice questions and in the instructions booklet made available to the candidates there was a specific Instruction No. 6 that there will be 1/3 negative marks for every wrong answer and every student was aware of this fact that if he attempt a wrong answer, there will be 1/3 negative marking. 13. It has been further stated that the on-line objections were invited immediately after the written examination was held by the candidates within 72 hours, in terms of cl. (12) of the press note dt. 21.03.2016 and by & large there were objections against 7 questions and after the objections were received, the same were examined by the Expert Committee and by the Key Validation Committee and their report was placed before the Board in its 38th meeting held on 12.04.2016 question No. 56 of 'A' Series was deleted and accordingly the result was forwarded to the State Government on 28.04.2016 of those candidates who secured minimum 40% marks in the written examination which is the minimum qualifying marks and accordingly the result & cut-off marks of each category was notified by the Government on 06.05.2016. 14. In fact the reservation of female being horizontal reservation and the representation of female was more than the reservation provided in the overall merit of the vertical reservation in General, OBC, SC/ST & SBC categories, thus the horizontal reservation of all the categories remain the same. 15. 14. In fact the reservation of female being horizontal reservation and the representation of female was more than the reservation provided in the overall merit of the vertical reservation in General, OBC, SC/ST & SBC categories, thus the horizontal reservation of all the categories remain the same. 15. It has been further stated that although the answer key was not uploaded but on demand under the Right to Information Act, it was made available to the candidates on 19.05.2016 and it is not their legal or statutory right, at the same time, in none of the petitions, no cogent & satisfactory evidence has been placed on record to support that answer key which is made available to the candidates have any manifest error to controvert the opinion of Experts. 16. Counsel for respondents submits that a fair procedure of selection has been followed, as prescribed under the scheme of Rules, 1998 and merely because the present petitioners have not been selected or unable to qualify the minimum qualifying marks, that in itself will not give a cause to them to question the process of selection and they have failed to project how their legal or statutory rights, in any manner, are being infringed. 17. This court has heard the counsel for the parties and with their assistance examined the material on record. 18. It is settled principles of law that a person who has consciously taken part in the selection process cannot thereafter turn around and question the method of selection/procedure and its outcome. At the same time, the action which is per se violative of statutory Rules or there is an infringement of legal or fundamental rights enshrined in the Constitution, that will not preclude the candidate from assailing the same even after participating in the process and there may not be any estoppel. 19. In the instant case, the process was initiated by the respondents pursuant to its advertisement dt. 27.08.2013 holding selection against 1148 posts of Nursery Teachers Training (NTT) which is included in the Schedule appended to the Rajasthan Woman and Child Development (State & Subordinate) Service Rules, 1998 and thereafter the process was handed over to the Board and a press note was published on 21.03.2016 laying down the procedure to be followed by the Board and u/cl. (12) of the press note, opportunity was afforded to the candidates to submit their objections on-line within 72 hours if there is any error in the question paper and the candidates participated in the selection process without raising any objection/demur appeared in the written examination held on 03.04.2016. Cl. (12) of the press note being relevant is reproduced ad infra:- 20. It may be relevant to note that the select list was prepared based on the written examination which is the sole consideration & touchstone in holding the process of selection. The syllabus of the written examination was uploaded on the website & accessible to the candidates. The syllabus of the written examination has been customized to teach infants children from 0 to 6 years to test their basic knowledge/skill of teaching at the nursery level. 21. It is not the case of the petitioners that either of the question in the written examination was out of syllabus and the examination was held in two series i.e. A & B with 100 questions of one mark each and in the instructions, which is on the top of the booklet, it was made known to each of the participant/candidate that each question has four alternative responses and the candidate has to darken only on circle or bubble indicating the correct answer using the prescribed pen. At the same time, there was also instruction-6 on the booklet that 1/3 part of the marks of each question will be deducted for each wrong answer. It will be relevant to quote the Instruction Nos. 5 & 6 of the Instructions available on the question booklet provided to the candidates being relevant for the present purpose, which read ad infra:- "5. Each question has four alternative responses marked serially as 1. 2. 3. 4. you have to darken only one circle or bubble indicating the correct answer on the Answer Sheet using BLUE BALL POINT PEN. 6. 1/3 part of the marks of each question will be deducted for each wrong answer. (A wrong answer means an incorrect answer or more than one answers for any question. Leaving all the relevant circle or bubble of any question blank will not be considered as wrong answer.)" 22. The written examination was held on 03.04.2016 and as per cl. 1/3 part of the marks of each question will be deducted for each wrong answer. (A wrong answer means an incorrect answer or more than one answers for any question. Leaving all the relevant circle or bubble of any question blank will not be considered as wrong answer.)" 22. The written examination was held on 03.04.2016 and as per cl. (12) of the press note, objection could be submitted on-line within 72 hours of the examination and it has come on record that Board received in all nine objections and if we take note of the objections, the same received in regard to Series 'A' for the question Nos. 1, 25, 55, 64, 72, 79 & 100. After having received the objections, it was placed before the Experts and after taking their opinion, the matter was placed before the Key Validation Committee and it recommended to delete Question No. 56 of Series 'A', as reveals from the minutes of the 38th meeting of the Board (Annex.R-2/3) and thereafter the result was forwarded to the State Government of those candidates who secured 40% qualifying marks in the written examination on 28.04.2016. 23. 23. It is true that cut-off marks of male & female of all the categories are common but the reason for common cut-off marks, which has come on record, reveals that number of female candidates selected in each category on their own merit are more than the number of vacancies reserved for them and this being a horizontal reservation, if the women candidates are selected on their own merit to the quota reserved for them, obviously the cutoff marks as notified for male & female in the respective category will certainly remain the same and this being the settled principle of law & observed by the Apex Court in Rajesh Kumar Daria v. RPSC & Ors., (2007) 8 SCC 785 that the principle applicable to vertical reservations will not apply to horizontal reservations and where a horizontal reservation for women is provided, the proper procedure is first to fill up the quota of vertical reservation in the order of merit and one has to find out the number of candidates who belong to vertical reservation including the women and if the number of horizontal reservation in select list is equal to or more than the number of horizontal reservation quota, then there is no need for further selection towards the horizontal quota and that can be invoked only if there is any shortfall in the requisite number of horizontal reservation including women and can be taken from the bottom of the list in the order of merit. Para 9 of the judgment being relevant is reproduced ad infra:- "9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3)are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, Who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for Scs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) But the aforesaid principal applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within in vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example: If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)" 24. In the instant case, the selection has been made of female candidates in their horizontal quota which is much more than the vacancies reserved and the submission made is without substance. It will be appropriate to take note of the cut-off and selected candidates against the reserved vacancies with their horizontal reservation for male & female, which reads ad infra:- 25. It is true that answer key was not uploaded on the website of the Board but under the Right to Information Act, 2005, that was made available to the candidates who have demanded on 19.05.2016, Annex.9 on record. At the same time, after the press note was released on 21.03.2016 inviting objections u/cl. (12) from the candidates regarding any error in the question paper. The on-line objections were made by the candidates in regard to seven questions, of which reference has been made, that was examined by the Experts and thereafter by the Key Validation Committee and the recommendations were placed before the Board in its 38th meeting and finally a decision was taken to delete question No. 56 of series 'A' and accordingly, the process was initiated declaring the result of the candidates who secured 40% qualifying marks by forwarding the result to the State Government. 26. It will be relevant to note that against 1148 vacancies, 5118 applications were received and in all 3388 candidates appeared and 2326 secured minimum qualifying marks and the list of candidates who secured qualifying marks was forwarded to the State Government. 26. It will be relevant to note that against 1148 vacancies, 5118 applications were received and in all 3388 candidates appeared and 2326 secured minimum qualifying marks and the list of candidates who secured qualifying marks was forwarded to the State Government. In furtherance thereof, the State Government declared category-wise cut-off and result on 06.05.2016 and further process is to be followed to consider the selected candidates for appointment on fulfillment of the overall suitability, as prescribed under the scheme of Rules, 1998. 27. So far as their objection which has been strongly raised by the petitioners jointly that answer key was not uploaded on the website of the Board depriving the candidates from submitting their objections and opportunity has not been afforded to the petitioners & their right of fair consideration and participation in the process being jeopardized may not be of any substance for the reason that on-line objections were invited in terms of cl. (12) of the press note dt. 21.03.2016 within 72 hours and it has come on record that objections were received against seven questions and that were examined by the Experts and also by the Key Validation Committee which was finally looked into by the Board in its 38th meeting and accordingly question No. 56 of Series 'A' was deleted, as reveals from the minutes of the Board Annex.R-2/3. 28. At the same time, mere objection that answer key has not been uploaded that itself is not suffice to annul the process unless it is found beyond the realm of doubt that the key answer published by the Expert is incorrect and in case there is doubt as to which of the answer is correct, then to answer accepted by the Expert should be by and large adhered to, in the instant batch of petitions no unimpeachable evidence has come on record to support that the answer key which was made available to the petitioners, who are raising their voice by filing instant writ petitions, how far being proposed by them can be considered to be a right answer. 29. 29. In all the writ petitions, the pleadings to this effect are noticed from Series-B question paper and in the tabular chart they have provided right answers, as alleged according to the book 'Shiksha Manovigyan' & Kilol and that has failed to satisfy the test beyond the realm of doubt of an apparent error in the key answer, as proposed by the Experts, on the contrary in case there is doubt as to which of the answer is correct, still the answer accepted by the Experts has to be given its due credence. 30. As a matter of caution, it is advisable for the Board to upload the answer key and invite objections which would have enabled the Board in finalizing the answer key to rule out the errors as possible and it has been informed by the Chairman of the Board, who appeared before the court, that in the future selections undertaken by the Board, a decision has been taken to upload the answer key before finalizing the selection process that may be suffice to proceed. 31. In the instant case this court after having heard counsel for the parties is not inclined to pass any order distracting from the view expressed by the Experts in reference to the written examination held by the Board for the post in question for which the dispute has been raised, at the same time, it is not the indefeasible right of the candidate that in all the selections/competitive examinations answer key has to be published/uploaded as a matter of right unless provided under the scheme of Rules which is not the case set up by the petitioners and in the considered opinion of the court, the submission is without substance and deserves rejection. 32. 32. As regards the submission made that there is no provision of negative marking in the scheme of Rules, 1998 and such method could not have been adopted by the respondents is of no substance for the reason that it is made known to the candidates in the examination booklet under the instruction sheet that each question has four alternative responses and what method has to be adopted in attempting the question and what will be the consequences of admitting a wrong answer, being known to the candidates before attempting the examination and rationally followed for every candidate who participated in the selection process, this court finds no error in the procedure being adopted by the respondents in holding the present competitive examination and may not be the requirement of the scheme of Rules, 1998 but such modalities are always open for the recruiting authority to adopt while conducting competitive examination and it is not the case of the petitioners that it has not been rationally followed by the respondents in the process of selection in the instant case. 33. Last feeble attempt of the petitioners that the Board was not competent to call for the objections and examine deserves outright rejection for the reason that the written examination was conducted by the Board and it was for the Board to lay down its procedure in finalizing the selection conducted pursuant to advertisement dt. 27.08.2013. 34. It is true that in the system of multiple choice objective-type test, the recruiting authority must take care to see that questions having an ambiguous import are not set in the papers and more so when the papers of that kind of system of examination involves merely the tick marking of the correct and it leaves no scope for reasoning or argument. 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, as the case may be, it is always advisable to take a timely and prompt decision before declaring the result to rule out all the errors & possibilities as far as possible. 35. 35. At the same time, the Apex Court has strongly worded that in the academic matters, the court should be extremely reluctant to substitute its own view in preference to those formulated by professional persons holding expertise and rich experience on the subject and their opinion ordinarily cannot be made the subject of judicial scrutiny merely because there are different views & opinion of some authors expressed in their books or articles on the subject and interference by the court in the day-to-day holding of examination, academic matters and the opinion of the professional persons possessing expertise and rich experience on the subject is not advisable, at the same time it is the duty and endeavor of the courts to see that examination system is not rendered unworkable by creating doubts and uncertainties. 36. Consequently, all the writ petitions and so also the stay applications are dismissed and the respondents are at liberty to complete the process which was initiated pursuant to the advertisement dt. 27.08.2013. No costs.