Ram Ratan Yadav vs R.P.S.C. and Others

Veerender Singh Siradhana, J.—In response to advertisement dated 13th August, 2008 issued by the Rajasthan Public Service Commission (hereinafter referred to as the ''RPSC'', for short), for direct recruitment to the post of Teacher Grade-II, the petitioner submitted his application for consideration of his candidature for appointment for the post under Code 50 for the subject of Social Science. Out of 170 vacancies advertised for the subject of Social Science, 33 vacancies were reserved for Other Backward Classes (''OBC'', for short) category. The petitioner participated in the examination with Roll No. 754507. The question paper consisted of 150 questions of objective type in 4 different series as "A", "B", "C" and "D" with multiple options as answers. Objective type questions were formulated with multiple options. The process contemplated 1/3 part of the marks of each questions to be deducted for each wrong answer. The respondent-Commission declared the result on 24th June, 2011, indicating cut off marks for Social Science subject for OBC category as 305.45 whereas the petitioner secured 304.08 marks, as a consequence, the petitioner was not selected.

It is pleaded case of the petitioner that the respondent-Commission did not issue the answer key of the said examination whereas it has been a practice of the respondent-Commission to declare the answer key so that the candidates may verify the result from the options. According to the petitioner, question No. 132 of Series "C" for the paper of Social Science was a wrong question, and therefore, he preferred SBCWP No. 10095/2011 (Ram Ratan Yadav Vs. RPSC and Ors.), questioning the action of the respondent-Commission in not disclosing the answer key of the examination.

In response to the notice of the writ application, the respondent-Commission, in their counter affidavit stated that question No. 132 of Series "C" has been deleted from computation as the same was found disputed, however, no reasons for not disclosing the answer key were pleaded. This Court taking the note of the fact that the answer key was not disclosed and further that the respondent-Commission itself admitted certain questions to be disputed; disposed of the writ application, of the petitioner, on 19th December, 2011, in view of the subsequent developments, reserving liberty to the petitioner for inspection of answer key and to address a representation.

The petitioner after inspection of the answer key, addressed a representation to the respondent-Commission with reference to question No. 41 and 71 of series ''C'', which were wrongly assessed. In support of his plea, while assailing the question No. 41, as wrongly assessed, the petitioner detailed out the reasons, which were corroborated by the authentic publication approved by the Government of India and Government of Rajasthan. While contending his answer to be correct as to question No. 71 of series ''C'' is the District with highest number of Muslim population, out of four options provided, the petitioner submitted report of Census Department indicating ''Ajmer'' as the correct District (option) rather than ''Jaisalmer''.

The representation having evoked no response, another writ application SBCWP No. 5776/2012 (Ram Ratan Yadav Versus RPSC, Ajmer and Ors.) was preferred, which was decided vide order dated 25th April, 2012 by a Coordinate Bench of this Court directing the respondents to decide the representation within a period of one month.

Alleging the non-compliance of the directions made on 25th April, 2012, the contempt proceedings were instituted by the petitioner for non-discloser of reasons as to how the petitioner failed to fulfill the criteria of cut off marks as well as for delay in deciding the representation. However, the Court did not find any deliberate disobedience and closed the contempt proceedings with liberty to the petitioner to take legal recourse, as observed by the learned Judge while passing the vide order dated 25th April, 2012. It is in the back drop of these facts the present writ proceedings have been instituted.

In response to the notice of the writ application, the respondent-Commission has filed its counter affidavit, admitting the fact that question No. 132 of series ''C'' of Social Science was deleted and accordingly, the result was revised. With reference to question No. 41 and 71 of series ''C'', it is further stated that question No. 41 was found disputed, and therefore, the same has been deleted whereas no change was suggested in the answer to question No. 71 of series ''C'' by the Expert Committee and after revision, the result-the last cut off marks for the OBC category in General were 308.17 whereas the marks of the petitioner totalled to 306.80 marks, and therefore, was not entitled to any relief and thus, the writ application merits rejection.

The learned counsel for the petitioner reiterating the pleaded facts and grounds emphasized that the respondent-Commission itself admitted the fact of wrong answers to the questions with multiple choice as would be evident from the fact that question No. 132 of ''C'' series was deleted from competition as the same was found disputed, however, no reasons were disclosed and the answer key was also not published while the petitioner instituted the writ proceedings i.e. SBCWP No. 10095/2011. On a representation made by the petitioner, after inspection of the answer key, as directed by the Court, the respondent-Commission admitted the fact that question No. 41 of ''C'' series was disputed, and therefore, the same has been corrected. The learned counsel would further submit that the question No. 71 of ''C'' series is also disputed and this fact is fortified from the reply of the respondent No. 5 (Census Department, Government of India, Jaipur). According to the data of Census-2001, "Jaipur District'' has the highest Muslim Population, admittedly, which was not in the options in the multiple four options. For other 31 Districts of the State, the total Muslim population is, ''Ajmer'' with 2,44,341 and the total Muslim persons in Jaisalmer are 1,20,174. Thus, the respondent-Commission has brushed aside the report of the Census Department, who is entrusted with the procedure of systematically acquiring and recording the information about the members of a given population. Moreover, the Indian Census is most credible source of information on demographic (population characteristics) economic activity, literacy and education, housing and house-hold amenities, urbanization, fertility and mortality, Scheduled Castes, Scheduled Tribes, having relation and migration, disability and many other social, cultural and demographic data since 1872.

It is further contended that the respondent-Commission has not disclosed any reason in the counter affidavit while supporting the option ''Jaisalmer'', as the correct answer to question No. 71 of ''C'' series, duly supported by any text book, prescribed by education Board and approved by the Government. Further, the stand of the respondent-Commission is falsified in view of the data of Census Department, who is primarily entrusted with the duty to maintain the information about the members of a given population.

The learned counsel further urged that the respondent-Commission did not furnish the required information so much so that it was during the course of contempt proceedings that the petitioner was furnished with a copy of the communication dated 9.5.2013 (Annexure-11), disclosing that the revised cut of marks for OBC category i.e. 308.17, is an imaginary figure since the respondent-Commission did not declare and publish the revised cut off marks. Neither the selection list has been revised nor the petitioner was furnished with the copy of the report of the Expert Committee, in spite of the fact that an application seeking the information was preferred under the provisions of Right to Information Act, 2005, but the same was not furnished on the pretext of Section 8 of the Act of 2005. The learned counsel referring to communication dated 9th May, 2013 (Annexure-11) further pointed out that the revision of result was only speculative/imaginary while arriving at the cut off marks as 308.17, and further disclosing that the petitioner secured 306.80 marks. Thus, the respondent-Commission played a game of hide and seek. Moreover, even in the face of revision of speculative/imaginary revision of result, candidates of OBC category with lower merit than the petitioner have been accorded appointment.

Per contra, Mr. D.S. Shekhawat, learned counsel appearing on behalf of the respondent-Commission, supporting the stand of the Commission in the counter affidavit, argued that as a consequence correction of question No. 41 of ''C'' series, the result was revised qua the petitioner, and it was found that the petitioner secured only 306.80 marks whereas the last cut off presumed, was 308.17. The learned counsel would further submit that the issue of wrong answer with reference to question No. 71 of ''C'' series was examined by an Expert Committee, which found no illegality in the action of the Commission while treating ''Jaisalmer'' District as the correct option/answer, with highest Muslim population. Therefore, the issue is not open for debate before the Court of law in the face of an opinion of the Expert Committee. The learned counsel would urge that the entire recruitment has been concluded and long time has elapsed, therefore, it will not be in the interest of justice to unsettle the settled things. Moreover, the candidates already selected and appointed, though would be adversely affected in the ultimate analysis have also not been impleaded as party respondent(s) to the writ proceedings. Reliance has been placed on the opinion of the Division Bench in the case R.P.S.C., Ajmer Vs. Silochna and Anr. in DBSAW No. 493/2014, decided on 7th May, 2014.

I have heard the learned counsel for the parties and carefully considered the competing pleadings as well as the arguments advanced on the basis of materials available on record.

The only issue for consideration of this Court is whether the respondent-Commission did carry out revision of the result in the face of deletion of question No. 41 of ''C'' series, which was admitted to be wrong by none-else but the respondent-Commission. The learned counsel for the petitioner was allowed time to procure the relevant record and produced it for perusal of the Court. During the course of arguments, the fact that the result was, in fact, revised so as to determine the position of the petitioner and a list was prepared, which resulted into exclusion as many as about 15 candidates, were still continuing and one of the candidate was lower in merit than the petitioner. However, the revision of result has not been acted upon. No reasons have been put-forth either in the counter affidavit or orally for not giving effect to the revision of result on account of correction of question No. 41 of ''C'' series, which has, in fact, changed the result and has an effect of displacing the selected candidates already working, whose names, have been detailed out in the list that has been prepared separately.

With reference to the question No. 71 of ''C'' series, the learned counsel for the respondent-Commission produced the report of the Expert Committee, which discloses the names of private publication, which has been treated to be the basis for arriving at the conclusion while treating ''Jaisalmer'' district to be the correct option/answer of the multiple choice to question No. 71 of ''C'' series as to the maximum Muslim Population in the district. Respondent No. 5 i.e. Census Department, Government of India, Jaipur, in its counter affidavit on the basis of data and Census of 2001, has indicated total Muslim Population in the State of Rajasthan as 47,88,227 persons, out of which 24,82,394 are males and 23,05,833 are females Jaipur has been indicated to be a district with the highest Muslim Population of 5,15,124 persons, out of whom 2,68,523 are males and 2,46,601 are females. For other 31 Districts of the State of Rajasthan document Annexure-R/5/1 has been placed on record showing the total Muslim population in the descending order. With respect to the Districts, which are given as four multiple options to question No. 71 of ''C'' series with maximum Muslim population have been indicated in a tabular form in reply to para No. 23 which reads thus:

"The Muslim Population of other 4 districts as mentioned in Question No. 71 are shown in following table:-

A glance at, the data of Census furnished by the Census Department, Government of India, Jaipur, with reference to the Four Districts, which were supplied as options to question No. 71 of ''C'' series with reference to Muslim Population indicates ''Ajmer District'' with the maximum Muslim Population.

Thus, there remains no elements of doubt that the correct answer to question No. 71 as opined by the Expert body i.e. Census Department, Government of India, Jaipur, is ''Ajmer'' and cannot be ''Jaisalmer''.

Moreover, the respondent-Commission has not furnished any reason, supported by the text book duly and approved by the Government and available for the students for study, which could support the option ''Jaisalmer'' as correct answer to question No. 71 of ''C'' series to be the district with maximum Muslim Population whereas the Census Department, Government of India, Jaipur, in no uncertain terms, has detailed out the data of census for 31 Districts of the State of Rajasthan in descending order(Annexure-R/5/1); which indicates ''Ajmer'' as the correct answer from the option made available for answer to question No. 71 of ''C'' series.

The Expert Committee was expected to base its opinion referring to publications/books approved by the Government. Surprisingly, the Expert Committee has relied upon books of private publishers which at times contains incorrect information/answer in absence of any authentication by the competent authorities.

In the case of Rajesh Kumar and Others etc. Vs. State of Bihar and Others etc., , the Hon''ble Supreme Court held that application of an erroneous "model answer key" for evaluation of answer scripts of candidates, appearing in a competitive examination, is bound to lead to erroneous results and an equally erroneous inter se merit list of such candidates.

The Hon''ble Supreme Court repelling the contention for grant of relief which was not even prayed for in quashing the entire selection process, observed that the High Court was entitled to mould the relief prayed for in the writ application and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.

It will be relevant to consider the text of para 15 of the judgment in the case of Rajesh Kumar (supra), which reads thus:

"15. There is, in our view, no merit in that contention. The reasons are not far to seek. It is true that the writ Petitioners had not impleaded the selected candidates as party Respondents to the case. But it is wholly incorrect to say that the relief prayed for by the Petitioners could not be granted to them simply because there was no prayer for the same. The writ Petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the "Model Answer Key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "Model Answer Key" was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "Model Answer Key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in ''A'' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to ''A'' series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key." 22. Thus, the contention raised on behalf of the respondent-Commission for non-impleadment of the selected candidates as party-respondents to the case is without any substance and is hereby rejected.

The Expert Committee, whose report was produced before the Court, was not enclosed with the counter affidavit filed on behalf of the respondent-Commission and it appears to be for the obvious reasons as the Expert Committee has not independently applied its mind while adjudicating upon the correct option out of four supplied for answer to question No. 71 of ''C'' series. The Committee has not referred to even a single text book approved by the Government. Moreover, in the face of the report furnished by the petitioner along with his representation, has not been discussed at all and no reasons have been detailed out either in the counter affidavit or in the report that was produced for perusal of the Court as to how and for what good reason ''Jaisalmer'' was adopted to be a correct answer out of the four options supplied as answer to question No. 71 of ''C'' series.

The data of Census with reference to maximum Muslim Population in the four Districts in unequivocal terms indicates ''Ajmer'' as the district with maximum Muslim Population, and therefore, has to be adopted to be correct answer to question No. 71 of ''C'' series. The Coordinate Bench of this Court in the case of Hari Singh and Ors. Vs. RPSC and Ors.; SBCWP No. 121621/2009 held thus:

"As regards expert committee report placed on record (Ann. R/1), suffice it to say that expert committee has not independently applied its mind while examining as to which is the correct answer to Q. 20 of Series "A" in regard to which grievance has been raised in instant petitions, which was expected from it but the committee has only taken note of a single text book of 20 years old Edn (1986), which is not prescribed and approved by the Government in support of its report so as to affirm the key answer (option (2)-Badyani) to Q. 20 and in support of answer supplied by paper setter and what has been expressed by expert committee in its report is not its independent opinion, which could have been said to be made after scrutiny of material placed on record, which no reasonable prudent man well versed in a particular subject would regard it as correct." 25. In view of the above and what has been observed by the Hon''ble Supreme Court in the case of Manish Ujawal (supra), the answer attempted by the petitioner while answering question No. 71 of ''C'' Series indicating ''Ajmer'' as the district with maximum Muslim Population out of the four districts of State of Rajasthan, supplied as multiple choice, appears to be correct answer duly supported by the data furnished by the Census Department, Government of India, Jaipur, an expert body entrusted with the duty to maintain the information about the members of a given population.

It will be unfair to penalise the petitioner for not awarding him proper marks for an answer, which is correct and finds corroboration even in the opinion of an expert body i.e. Census Department.

It is well settled law that if the irregularities in evaluation could be noticed and corrected specifically and undeserving select candidates be identified and in their place deserving candidates be included in select list, then no illegality would be said to have crept in the process of re-evaluation.

In the instant case at hand, the respondent-Commission in view of the deletion of question No. 41 of ''C'' series did revise the result, which indicated that 15 candidates were to be excluded from the select list but have not proceeded to do so for reasons best known to the concerned. The four districts of State of Rajasthan, which were supplied as multiple choice to question No. 71 of ''C'' series, for correct option to be answered by a candidate as to district with maximum Muslim Population, is ''Ajmer'', as would be reflected from the counter affidavit of respondent No. 5 i.e. Census Department, Government of India, Jaipur.

The expert committee has not furnished any reason worth the name as to why the data of census furnished by the Census Department, Government of India, Jaipur, was not relied. There is no reason forthcoming from the materials available on record as to why the expert committee treated ''Jaisalmer'' as the correct answer to question No. 71 of ''C'' series, in absence of any authenticated opinion from a text book approved by the Government. In order to maintain the purity of selection process and also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key, the answer attempted by the petitioner is treated to be correct. It is necessary in the interest of justice that the result is revised in view of the deletion of question No. 41 of ''C'' series, for which the exercise has already been undertaken and list prepared, but has not given effect to.

In the result, the writ petition succeeds and is hereby allowed.

The respondents are directed to treat the option No. 1-''Ajmer'' as correct answer to question No. 71 of ''C'' series and its corresponding question of other series as correct answer thereto and accordingly the petitioner as well as those who have not approached this Court but attempted option No. 1-''Ajmer'' to question No. 71 of ''C'' series and its corresponding questions of other series as their answer thereto.

The result be revised afresh and the names of the candidates, including the petitioner, if finds place in the select list, as a consequence of revision of the result, may be considered for appointment for the post of Teacher Grade-II, pursuant to the advertisement dated 13th August, 2008.

Compliance of this order be ensured within a period of six weeks from the date of receipt of certified copy.

However, in the facts and circumstances of the case, there shall be no order as to costs.