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Judgment
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.
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.
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.
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 38 th 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.
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.
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.
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.
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 tobook "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
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.
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.
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.
It has been averred by the respondents in the reply that
written examination was held on 03.04.20136 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.
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 38 th
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.
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.
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.
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.
This court has heard the counsel for the parties and with
their assistance examined the material on record.
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.
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:-
"VERNACULAR MATTER OMITTED"
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.
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 mark(s)
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.
1/3 part of the mark (s) 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.)"
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 38 th 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.
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 cut-
off 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 vs.
RPSC & Ors. reported in (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. 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. 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.)"
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:-
"Details of cut-off & selected candidates against reserved posts
Open/Males Females Total
General Category
Reserved posts 320 136 456
Selected candidates 217 239 456
Cut off 63.6364 63.6364
OBC Category
Reserved posts 134 57 191
Selected candidates 79 112 191
Cut off 58.2492 58.2492
SC Category
Reserved posts 102 43 145
Selected candidates 89 56 145
Cut off 52.8620 52.8620
ST Category
Reserved posts 77 32 109
Selected candidates 59 50 109
Cut off 48.8215 48.8215
SBC Category
Reserved posts 7 2 9
Selected candidates 5 4 9
Cut off 55.5556 55.5556
Grant Total
910
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 38 th
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.
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
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 38 th
meeting and accordingly question No.56 of Series ''A'' was deleted,
as reveals from the minutes of the Board Annex.R-2/3.
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.
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.
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.
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.
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.
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.
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.
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.
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