Rahul Sangram Parida vs National Council Of Educational Research And Training (NCERT) And Another

Dr. B.R. Sarangi, J

The petitioner, who belonged to Economically Weaker Section, has filed this writ petition seeking direction to the opposite parties to include his name in the list of merit scholarship under the National Talent Search Examination, 2019-20 conducted by National Council of Educational Research and Training, and to provide him extension of time to undertake necessary formalities for getting scholarship.

The factual matrix of the case, in brief, is that as per the National Talent Search Scheme, the scholarship is awarded to the candidates for pursuing courses in science and social science up to doctoral level and in professional courses like medicine and engineering up to second stage level subject to fulfillment of the conditions provided in the brochure prescribed therein. In order to find out eligible candidates under the scheme, certain procedures have been adopted for identification of talent comprising of two stage selection processes. While the individual State/UT conducts the first stage selection, the second stage selection at the national level is carried out by the National Council of Educational Research and Training (NCERT), New Delhi. In view of above procedure, the candidate, who qualified stage-one examination conducted at State level, can only be called upon to appear in the stage-two examination for national level examination, which has to be conducted by the NCERT. The petitioner, having qualified stage-one examination, was allowed to appear stage-two examination conducted by the NCERT. But he has not been selected on the plea that he secured 62 marks out of 99 in Mental Ability Test (MAT) and 38 marks out of 96 in Scholastic Aptitude Test (SAT) and combining the marks though he secured 100 marks, but could not secure minimum marks in SAT. Therefore, the petitioner was declared as disqualified, though candidates securing 81 marks in the Economically Weaker Sections were qualified pursuant to resolution published on 16.07.2021. Hence this application.

Mr. Pitambar Acharya, learned Senior Counsel appearing along with Mr. S. Rath, learned counsel for the petitioner contended that stage-two National Talent Search Examination consists of two papers, i.e., Paper-I, MAT and Paper-II, SAT. Both the papers are consisting 100 multiple choice type questions, with four alternatives and each of them carries one mark. The stage-two NTS examination was held on 14.02.2021 and the qualifying mark for the students belonging to SC and ST category was 32%, whereas for students belonging to other categories was 40%. It is further contended that the first answer key was released on 23.03.2021 and all the questions of both the papers were valid. But when the provisional result along with final answer key was published on 24.06.2021, the petitioner came to know that one question from MAT and three questions from SAT were not considered while calculating the final marks, thereby the total marks of MAT come to 99, where as SAT to 97. But it appears that in SAT, instead of total marks as 97, it has been come down to 96 marks, which is apparent from the mark sheet issued in favour of the petitioner in Annexure-6 series at page-44 of the brief. Thereby, four questions in SAT have not been taken into consideration and, as such, out of total questions of 100, since four questions have not been taken into consideration, it comes to 96, of which the petitioner secured 38. It is contended that in spite of securing 38 marks in SAT, the petitioner was not qualified and, as such, disqualification of the petitioner is arbitrary, unreasonable and contrary to the provisions of law and outcome of non-application of the mind of the authority.

Mr. B. Dash, learned Central Government Counsel appearing for opposite party no.1-NCERT vehemently contended that a candidate, excluding SC/ST/PH category, is required to acquire 40% of the total mark for being selected for award for scholarship under National Talent Search Examination. The petitioner, having secured less than 40% of marks in the SAT examination, he does not satisfy the condition embodied in the brochure, wherein under clause-3.2.3, it has been clearly mentioned that 40% will be the qualifying marks for being selected for awarding of scholarship. It is contended that the petitioner secured 62 marks out of 99 in MAT examination, which is more than 40%, but in SAT examination, the petitioner has secured 38 marks out of 97 which is less than 40% and, as such, he has not secured the minimum qualifying marks. Therefore, the petitioner was declared unsuccessful in the said examination. It is further contended that the qualifying marks for MAT and SAT examination comes to 39.6 and 38.8 respectively, whereas the petitioner obtained 62 and 38 marks in the respective subjects. Thereby, he has failed to secure qualifying marks by a margin of 0.8 marks in SAT examination, as a result of which, he was not selected to be awarded scholarship. Thus, it is contended that the writ petition should be dismissed.

Mr. S. Jena, learned Standing Counsel for School and Mass Education Department appearing for opposite party no.2, while elaborating the scheme applicable for selection, specifically contended that in view of the eligibility criteria the petitioner, who was qualified in the stage-one examination, was permitted to appear in the examination conducted by the NCERT in stage-two. As such, since the petitioner was not qualified by securing minimum percentage of marks, he was not selected. Thereby, it is contended that the writ petition is liable to be dismissed.

This Court heard Mr. P. Acharya, learned Senior Counsel appearing along with Mr. S. Rath, learned counsel for the petitioner; Mr. B. Dash, learned Central Government Counsel appearing for opposite party no.1-NCERT and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department appearing for opposite party no.2 by hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.

The National Council of Educational Research and Training (NCERT) was established by the Government of India in the year 1961 with a view to brining about qualitative improvement in school education in the country. No sooner the council was set up than it mounted a number of programmes in this direction. One such programme was to identify and nurture the talented students. This programme took up the shape of a scheme called National Science Talent Search Scheme (NSTSS) in the year 1963, which provided for the identification of talented students and awarding them with scholarships. During the first year of the implementation of the scheme, it was confined to the Union Territory of Delhi, wherein only 10 scholarships were awarded to the Class XI students. But in the year 1964, the scheme was extended to all the States and the Union Territories in the country with 350 scholarships for the student of Class XI. These scholarships were awarded on the basis of written examination, a project report and interview. The written examination comprised the science aptitude test and an essay on a given scientific theme. The candidates were to submit the project report at the time of the written examination. A stipulated number of candidates selected on the basis of these three components were then subjected to personal interview. The performance of the candidates on these four components was eventually employed for the purpose of awarding scholarship. These scholarships were awarded for pursuing education only in basic science up to doctoral level. Consequent upon the introduction of 10+2+3 pattern of education, the NSTS scheme also underwent a change in the year 1976. It was no longer confined to only basic sciences but was extended to social sciences, engineering and medicine as well. It was renamed as National Talent Search Scheme (NTSS). Since the education system in the country was undergoing a change, the scheme was made open to the students of Classes X, XI and XII and separate examinations were conducted for each class. The number of scholarship was raised to 500. The selection procedure was also changed. The candidates were subjected to two objective types written tests, namely, the Mental Ability Test (MAT) and the Scholastic Aptitude Test (SAT). A stipulated number of candidate qualifying these two tests were subjected to face-to-face interview. The final awards were made on the basis of composite scores obtained in the MAT, the SAT and the interview. The number of scholarships was again enhanced from 500 to 550 in the year 1981. These 50 scholarships were exclusively meant for Scheduled Castes (SC) and Scheduled Tribes (ST) candidates. The number of scholarships was once again escalated to 750 in the year 1983 with a provision of 70 scholarships especially for SC/ST candidates. This arrangement continued until the scheme was decentralized in the year 1985. In the year 1985, the scheme was re-casted and was completely centralized and partially decentralized and was confined to only Class-X. Under the new arrangement, the selection of candidates for the awards became a two-tier process. The States and the Union Territories were entrusted with the responsibility of conducting the first tier screening examination known as State Level Talent Search Examination. Each State and Union Territory was to select and recommend a stipulated number (as per the State quota) of candidates for the national level examination to be conducted for about 3000 candidates by the NCERT. The number of scholarships, however still continued to be 750 including 70 for SC/ST candidates. The State and the Union Territory quota was to be computed proportionately on the basis of the student enrolment at secondary level with a minimum of 10 for a Union Territory and 25 for a State and maximum of 500 for either of the two. This quota was to be reviewed every three years. The States and Union Territories had complete autonomy to design and conduct their written examinations. However, they were advised to follow the national pattern which comprised MAT and SAT. The MAT, which consisted of 100 multiple choice type questions, was to be attempted by all the candidates. The SAT consisted of 200 questions containing 25 multiple choice type questions each on eight subject areas namely Mathematics, Physics, Chemistry, Biology, History, Geography, Civics and Economics. The candidates could choose any four out of these eight subjects and had to answer a total of 100 questions in the SAT. A stipulated number of candidates, who qualified at the national level examination, were called for face-to-face interview. The award of scholarships was finally determined on the basis of the candidates' scores obtained in all the three components namely the MAT, the SAT and the interview. As such, the scheme has undergone for evaluation from time to time. The present scheme relates to the scholarship awarded to the candidates for pursuing courses in science and social science up to doctoral level and in professional courses like medicine and engineering up to second stage level subject to fulfillment of the conditions provided in the brochure prescribed therein. As on date 2000 scholarships are awarded in the country with reservation of 15 percent for SC, 7.5 percent for ST, and 27 percent for other backward classes, and 4 percent for group of students with benchmark disabilities.

Clause-3 of the scheme deals with selection procedure for identification of talent which comprises two-stage selection process, while the individual State/UT conducts the first stage selection, the second stage selection at the national level is carried out by the NCERT. Clause-3.1 deals with state level examination, which provides that each State/UT conducts its own examinations. They have the autonomy to lay down their own norms for the purpose of determining the eligibility of the candidates. Clause-3.1.1 deals with eligibility which speaks that all students studying in class X in any type of recognized school including Kendriya Vidyalaya, Navodaya Vidyalaya, and Sainik School etc. will be eligible to appear at the State Level Examination from the State in which the school is located. The mode of submission of application and medium of examination has been provided under clasuses-3.1.2 and 3.1.3 respectively. Clause-3.1.5 deals with examination, wherein it has been provide that the State level examination may have two parts; Part-I Mental Ability Test (MAT) and Part-II Scholastic Aptitude Test (SAT) for nominating the required number of candidates for the second level test to be conducted by the NCERT. Clause-3.2 deals with national level examination and clause-3.2.1 deal with eligibility, which provides that it is open for the students of Indian nationality whether they study in India or abroad at Class-X level. Clause-3.2.1.1 deal with candidates studying in India, whereas clause-3.2.2 deals with syllabus, which provides that there is no prescribed syllabus for the NTS examination. However, the standard of items shall be conforming to the level of classes IX and X. A separate booklet called "Learn about the Test" containing sample items for both the tests-MAT and SAT is available in print as well as on the NCERT website. Clause-3.2.3 deals with scheme of testing which provides Part-I and Part-II relating to MAT and SAT examination respectively with number of questions and marks as 100 each, and qualifying marks as 32% for SC, ST and PWD, and 40% for others (General & OBC) category separately in both papers. Clause-3.2.4 deals with written examination, whereas clause-3.2.5 deals with Mental Ability Test and clause-3.2.6 deals with Scholastic Aptitude Test. Clause-3.2.13 deals with conduct of examination and clause-3.2.14 deals with marking, which provides that in each item in both the tests shall carry one mark each. A candidate shall get one mark for correct response. There will be no negative marking in either of the tests. But it was cautioned that nevertheless, candidates are advised not to resort to blind guessing, which may not be of any help to them. Clause-3.2.16 deals with declaration of result, whereas clause-3.2.17 deals with rechecking. Under the brochure, so far as State quota of Odisha for the year 2018-19 and 2019-20 is concerned, it was 259 and this quota is revised after every three years.

The petitioner, who belonged to Economically Weaker Section, knowing fully well the conditions stipulated as per the brochure, had appeared in the stage-one State level examination for the year 2019-20 and qualified in the said examination held on 03.11.2019 conducted by the Directorate of Teachers Education and SCERT, Orissa, Bhubaneswar. Consequentially, the petitioner became eligible to participate in the national level test stage-two conducted by the NCERT on 14.02.2021. Accordingly, the petitioner appeared in the stage-two National Level examination in Paper-I Mental Ability Test (MAT), and secured 62 out of 99 marks and, as such, one question being wrong, one mark has been reduced from the full mark. Similarly, in Paper-II Scholastic Aptitude Test (SAT) the petitioner secured 38 out of 96 marks. As four questions were wrong out of 100, calculation has been made out of total 96 questions, which is evident from the mark sheet provided to the petitioner vide Annexure-6 series. The petitioner was not selected on the plea that he has not secured 40 percent marks which is required to be eligible for participating in the viva voce test. There is no dispute that the petitioner secured 40 percent marks in MAT, Paper-I by securing 62 marks out of 99. As such, 40 per cent of 99 would be 39.6, which is rounded to whole number as 40. But so far as SAT is concerned, the petitioner secured 38 out of 96 marks. As four questions were wrong, thereby, total marks have been reduced to 96, out of which 38 marks have been awarded to the petitioner. If 40 percent thereof would be taken into consideration, it comes to 38.4. As point four (.4) is less than the decimal fraction of point five (.5), it cannot be construed to be a whole number. Thereby, the minimum marks should be construed as 38. But in the counter affidavit, it has been stated that three questions in SAT had gone wrong and, therefore, total questions, i.e., 100-3=97, and if 40 per cent thereof would be taken into consideration, it comes to 38.8. As point eight (.8) is more than the decimal fraction of point five (.5), it will construe as 39. Thereby, the petitioner, having not secured 40 per cent marks, was not eligible to participate in the process of selection and was declared disqualified.

Now, the only question to be taken into consideration by this Court is, whether the marks awarded/provided to the petitioner, i.e., 38 will be taken into consideration as out of 96 or 97, as has been stated in the counter affidavit, for determining the eligibility criteria to qualify in Paper-II SAT examination conducted by the authority.

In paragraph-8 of the writ petition, the petitioner has specifically pleaded to the following effect:

"8. That when the final result was published on 16.07.2021, the petitioner came to know that the total mark for MAT and SAT has been reduced to 99 and 96 respectively. In such event the qualifying marks becomes 40% of 99 and 96, which shall be 39.6 and 38.4 respectively. If the same is rounded off the qualifying mark for MAT and SAT should be 40 and 38 respectively. It is pertinent to state here that in the final result published on 16.07.2021 the petitioner has secured 62/99 in MAT and 38/96 in SAT. It is further significant to state here that whereas the cut off mark for the EWS students was 81 marks in total, the petitioner has secured 100 marks in total which is well above the cut off mark."

But, in paragraph-5.4 of the counter affidavit filed by opposite party no.1, in reply to the paragraph-8 of the writ petition, it has been stated as follows:-

"That in response to para-8 it is most respectfully submitted that the qualifying marks for MAT and SAT examination comes to 39.6 and 38.8 respectively whereas the petitioner obtained 62 and 38 in the respective subject. Therefore it is crystal clear that the petitioner has obtained qualifying marks in MAT whereas he failed to secure qualifying marks by a margin of 0.8 in SAT examination as a result of which he was not selected to be awarded scholarship. If procedure of rounding off is adopted then also the petitioner does not satisfy the conditions since by rounding off 39.6 is to be treated as 40 so also 38.8 is to be treated as 39 sine more than the decimals fraction of .5 is to be treated as a whole number."

On perusal of the above mentioned pleadings, it is made clear that in SAT examination the total marks was fixed to 96 and, as such, the mark-sheet issued in his favour has not been disputed by the opposite partyno.1 in the counter affidavit. More so, the document, which was issued in his favour vide Annexure-6 series at page-44 of the writ petition scrupulously indicates that the petitioner has secured 38 out of 96 and opposite party no.1 has not denied the same. If the pleadings made in paragraph-8 of the writ petition, which corroborates the documents in Annexure-6 series to the writ petition, would be taken into consideration together with the averments made in paragraph-5.4 of the counter affidavit, there is no denial to such documents nor any specific pleadings is there that in SAT out of 100 marks three questions were wrong and total questions reduced to 97. More so, there is no pleadings made by opposite party no.1 in the counter affidavit that mention of marks of SAT as 38 out of 96 in the documents, which had been issued in favour of the petitioner in Annexure-6 series, is a mistake and that the same has to be rectified. In absence of such specific pleadings, the contention in the counter affidavit cannot sustain in the eye of law.

The law is well settled by the Constitution Bench of the apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 that:

"........ when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.

Orders are not like old wine becoming better as they grow old".

Similar view has also been taken by this Court in M/s Ranjit Construction v. State of Odisha, 2018 (I) OLR 808.

Nothing has been placed on record to indicate that the mark sheet which has been issued in favour of the petitioner in Annexure-6 series at page-44 of the brief is a mistake and the same requires correction or a fresh mark sheet is to be issued in his favour. Rather, in the counter affidavit, only it has been stated that total mark was 97, so far as SAT is concerned, and 40% thereof would become 38.8 and if it is rounded off, it will come to 39. Thereby, the petitioner was not qualified. The reasons which have been mentioned in the counter affidavit cannot be accepted as has been provided in the shape of affidavit or otherwise. Thereby the documents, which have been placed on record, have to be taken into consideration, and according to that, if the petitioner secured 38 out of 96, 40% thereof comes to 38.4, and as it is less than the decimal fraction of point five (.5), it would be rounded off to 38, then the petitioner would be considered for eligible as he has secured 40 per cent marks in SAT. The issue with regard to rounding off marks had come up for consideration before this Court in Kabita Dhal v. State of Orissa, 2014 (II) OLR 290, wherein this Court decided that the same is permissible in respect of marks secured by the candidates. Therefore, there is no dispute that since the petitioner has secured 38 marks out of 96, he cannot be declared as disqualified.

The NCERT provided national talent scheme and has taken laudable steps in the matter of education, which is an investment made by the nation in its children for harvesting a future crop of responsible adults productive of a well functioning society. However, children are vulnerable. They need to be valued, nurtured, caressed and protected. It is important to provide adequate educational opportunities for all since it is education, which ultimately shapes life. It is the source of that thin stream of reason which alone can nurture a nation's full potential. Moreover, in a democratic society, it is extremely important that the population is literate and is able to acquire information that shapes its decisions. In the present system of education, the system of examinations is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by Court in every case may lead to unhappy results making the system of examination a farce. For instance, we cannot but strongly condemn copying in the examination which has grown into canker of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in order that the innocent and intelligent students are not affected. But here is a case, where the petitioner, having appeared in the written examination as per the scheme both in MAT and SAT, and having qualified in MAT, has been declared unsuccessful in SAT as because he secured 38 out of 96 marks, for allegedly not securing 40% marks for eligibility. But on scrutinizing carefully the mark-sheet provided by opposite party no.1 this Court finds that the petitioner has secured 40 percent out of total marks of 96, for which he is eligible for selection.

In Keshav Ram Pal v. U,P.H.E.S.C., (1986) 1 SCC 671, the apex Court (O. Chinnappa Ready, J. speaking for the Court) held that "(.....) the written examination assesses the man's intellect and the interview test the man himself and the twain shall meet for a proper selection.

In Pankaj Sharma v. State of J&K, (2008) 4 SCC 273, the apex Court held that where there were discrepancies in question papers of the preliminary examination conducted by the Jammu and Kashmir Public Service Commission for appointment to the State services, the Public Service Commission took a decision to delete defective questions and add marks on pro rata basis, the decision was held to be valid and not irrational or arbitrary.

Applying the principles enunciated above to the present context, this Court finds that the petitioner and similar examinees were appeared in the examination for 100 marks and as one question was wrong in MAT examination, one mark was deducted from 100 and calculation has been made out of 99. Similarly, in SAT examination since four questions were gone wrong out of 100, calculation has been made out of 96, though in the counter affidavit it has been stated as 97, since according to opposite party no.1 three questions were wrong. But nothing has been placed on record with regard to actually how many and exactly which questions were wrong. On the basis of documents provided to the petitioner, which have been corroborated by the marks sheet issued to the petitioner under Annexure-6 series, it is evident that the petitioner has been awarded with 38 marks out of 96 and such fact has remained un-rebutted. Thereby, on careful calculation it is construed that the petitioner secured 40 percent marks in SAT examination and is thus qualified in the examination under the Economically Weaker Section category.

In Sanjay Singh v. U.P. Public Service Commission, (2007) 3 SCC 720, the apex Court held that "marks awarded" or "marks obtained in the written papers" do not refer only to the actual marks awarded by the examiner. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. Award of marks by the examiner is only one stage of the process of valuation. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be "the final marks awarded to the candidate".

Even applying the above principle to the present context, as nothing has been placed on record with regard to change of marks awarded by the opposite party no.1 in favour of the petitioner and, as such, no revised mark sheet has also been issued to the petitioner nor any pleadings thereof have been made in the counter affidavit that there was error in calculation of the marks awarded to the petitioner, it can be construed that the marks contained in the mark sheet are final marks awarded to the candidate, i.e., the petitioner herein.

In view of the facts and circumstances, as well as the law, as discussed above, this Court comes to an irresistible conclusion that if 40% marks awarded in SAT would be taken as qualifying marks, the petitioner, having secured 38 out of 96 marks, has already qualified in the said examination. More so, under the Economically Weaker Section category the cutoff mark has been fixed as 81. Therefore, if the total marks secured by the petitioner in both MAT and SAT, which comes to 100, is taken into consideration, it would be seen that the petitioner has secured 19 marks more than the cutoff marks. Thereby, otherwise also, the petitioner is eligible to be considered for selection under Economically Weaker Section category. More so, while entertaining this writ petition, this Court passed interim order on 01.09.2021 to the effect that one seat under the EWS category may not be filed up till 14th September, 2021 and such interim order was extended from time to time. Thereby, this Court directs that the petitioner, having qualified in both MAT and SAT examinations conducted by the NCERT, should be considered forthwith for future course of action in accordance with the scheme.

In the result, the writ petition is allowed. However, there shall be no order as to costs.