Sudarshan Gaur and Others vs RPSC and Others <BR> Devendra Kumar Saini Vs State of Raj. and Others

Munishwar Nath Bhandari, J.—These writ petitions pertain to the post of Headmaster for which selection has been conducted by the Rajasthan Public Service Commission, Ajmer (for short "RPSC"). Two issues have been raised before this Court.

The first issue is in reference to answer key published by the RPSC. It is alleged to be containing either wrong answers as correct or question itself is incorrect. Many questions and answers were shown to this Court to substantiate argument/s that all the options given therein were either incorrect, requires deletion of question/s or the correct option was not accepted in the answer key, rather incorrect answer/s set as correct effecting result of those, who have correctly answered the question. In substance the grievance is raised regarding correctness of answer key published by the RPSC after seeking expert opinion.

The second issue pertains to allocation of marks for Paper I and II, which is divided in many subjects. The aforesaid was referred in the advertisement pursuant to amendment in the rules vide Notification dated 29.06.2011. For paper I, five subjects were set in the syllabus with the allocation of marks for each subject. Similar provision exists for the paper II divided in six subjects.

Learned counsel for the petitioners submit that if paper I is looked into, it is divided in five subjects and number of questions to be given for each subject along with marks have been specified under the rules. The value of each question is of 2 marks. The RPSC while finding certain questions having incorrect answer or question was found to be incorrect, thus deleted, evaluated the marks again. While doing so, the valuation was not made in reference to the subject but was made overall on the paper itself having many subjects. In the background aforesaid, for some subjects, value of the marks gone beyond what has been prescribed under the rules. The RPSC should have given weightage of the question deleted or corrected in reference to the subjects of the concerned paper itself. Failure to do so has also effected the result.

Learned counsel elaborated the arguments regarding first issue. It is submitted that question No. 70 and 101 of paper I are almost similar apart from the fact that question No. 70 is having difference in Hindi and English. Similarly argument is made in reference to question No. 119 of paper II where name of Prime Minister of China was asked and none of the options given therein contains correct name yet it was held to be correct answer with option ''C'' given therein.

The argument in reference to other questions is also raised but not required to be elaborated because prima facie either the questions are incorrect or their options have not been rightly marked in the answer key and even ignored by the experts. It is in view of the fact that having dispute regarding certain questions, the RPSC constituted two member''s committee to seek their opinion and is being submitted before this Court. The prayer of learned counsel for the petitioners is accordingly to send the matter to an independent expert committee so as to submit their opinion instead to justify the answer/s set in the key.

For that purpose, a reference of judgment in the case of Guru Nanak Dev University v. Saumil Garg reported in (2005) 13 SCC 749 is given. Therein, direction of the High Court to constitute a Committee of independent members by engaging an agency was held to be justified.

Learned Additional Advocate General, on the other hand submits that so far as correctness of question or its answer is concerned, expert committee was constituted and on getting opinion, corrections have been made. One question has been deleted whereas other question has been corrected. The revised mark list is yet to be issued. It is submitted that once expert report comes, this Court may not allow to question it. A reference of judgment of this Court in the case of Joga Ram Choudhary & Ors. v. State of Rajasthan & Ors. in DB Civil Special Appeal No. 38/2013 on 10th January, 2013 is given. Therein, referring to the judgment of Hon''ble Apex Court in the case of Kanpur University and Others Vs. Samir Gupta and Others, and other judgments, appeals were decided. It is also stated that judgment of Division Bench is in respect of same recruitment, which is involved in these petitions.

Coming to the second issue, it is submitted that rules were amended pursuant to Notification dated 29.06.2011, however, amended rules do not provide requirement to possess minimum marks in each subject. The syllabus has been prescribed by amended rules along with number of question to be set for each subject and marks for it. While preparing the paper, it was not set subject-wise as indicated in the syllabus but questions were set in jumbled number. In the background aforesaid, while correcting the answer of some questions or deleting the questions, revision of marks is allowed on each paper instead of each subject of the paper.

Referring to selection for the post of Accountant/s, it is submitted that revision of marks was for each subject looking to the fact that one was required to possess minimum marks, which is not the requirement herein. The RPSC, thus took decision to allocate revised marks on total marks of the paper and not of a subject.

I have considered the rival submissions made by learned counsel for the parties and perused the record.

First question is in reference to certain questions either not rightly set or are containing wrong answers and in few cases, does not have any correct answer, thus prayed for deletion. The matter was sent to the expert committee consisting of two members and opinion has been produced before this Court. As per the opinion, two questions are found requiring correction, out of which, one was deleted and other was corrected. The result is yet to be revised. To questioning the opinion of the experts, learned counsel for the petitioner/s referred questions No. 70 for illustration, which is reproduced hereunder for ready reference:

Which district had the highest growth of population in Rajasthan during 2001-2011?

(1)Jaisalmer

(2)Barmer

(3)Jaipur

(4)Jodhpur

The perusal of question referred to above shows difference if it is read in Hindi and English. In English language, question is about growth of population whereas in Hindi, the growth rate of population. The difference in the question aforesaid has been ignored by the Committee, moreso when, if increase of growth rate of population between year 2001 to 2011 is looked into, according to both the parties, correct answer is Barmer, however, if the growth of population is looked into and not the growth rate then according to petitioner/s, correct answer is Jaipur whereas as per the experts and RPSC, it is Barmer. As per the experts, growth of population means growth rate of population, which has been asked in Hindi language. Prima facie I do not find justification in the opinion of the expert, who have ignored difference between growth of population and growth rate of population. This is moreso when, if question No. 101 is reproduced then opinion would become very clear. For ready reference, question No. 101 is reproduced hereunder:

District having highest decadal population growth in Rajasthan during 2001-11 is:

(1)Jaisalmer

(2)Jodhpur

(3)Barmer

(4)Jaipur

The perusal of the aforesaid reveals nothing but repetition of same question if the English version of question No. 70 is taken note of. It is only with the addition of word ''decadal'', the growth of population between the year 2001 to 2011 is asked. If the total growth of population is looked into, it is highest in Jaipur but if it is assessed in terms of rate, then Barmer. For that noting more is required to be seen then the report of Census Department at Annex. 14 of the writ petition No. 19453/2012. Therein, Census Department has answered both the questions and is reproduced hereunder for ready reference:

DIRECTORATE OF CENCUS OPERATIONS,

RAJASTHAN

Government of India, Ministry of Home

Affairs

No. 92/F.2(16)/Cen/Estt/2013

dated : 07.01.2013

Speed Post

The perusal of the quoted portion not only shows difference between growth and growth rate but different answer in two cases. The experts ignored difference of question in Hindi and English as no option is given and for the question Nos. 70 and 101 Barmer is taken as correct answer contrary to opinion of Census Department of Rajasthan.

In the same manner, question No. 119 of paper II is also reproduced hereunder:

119: Who is the Prime Minister of China?

(1) Hu Jintao

(2) Le Peng

(3) Jen Ziabao

(4) Bo-Xilai

None of the answers are correct yet option (3) has been taken as correct even by the experts. The name of Prime Minister of China is Wen Jiabao whereas correct answer is taken as Jen Ziabao. The word "Wen" cannot be read as "Jen" and same way "Jiabao" cannot be read as "Ziabao". In any case, the experts was not required to justify even an incorrect answer. The effort should have been to the correctness of the answer. The aforesaid are only few illustrations, which have been taken to record prima facie opinion as to whether proper opinion has been given by the experts or not otherwise, many other questions were referred having similar issues. From the aforesaid, a prudent person will not give an opinion in favour of RPSC when answer to the question is incorrect on the face of it.

During the course of arguments, learned counsel appearing for the RPSC was asked to refer the matter in reference to all the disputed questions to an independent committee or an agency like Board of Secondary Education to get opinion as to whether questions are properly set so as the option of answer. If it has incorrect answer then experts should not try to justify it but give fair opinion.

Learned Additional Advocate General though contested the matter/s in reference to judgment of Division Bench but submitted that if direction is given, an independent committee or agency would be engaged by the RPSC to get opinion on the disputed questions.

In view of the above, I am of the opinion that disputed questions need reexamination by an independent committee, which should be preferably of three members and, if need be, from an agency like Board of Secondary Education or parallel agency of the Government. It is to get opinion on correctness of question/s and its answer instead of justification. If any correction is suggested, the RPSC is directed to make it with issuance of merit list afresh at the earliest so that recruitment to the post of Headmaster may not be delayed.

It would be necessary to refer the judgment of Division Bench, which is in reference to the same recruitment. The dispute therein was in regard to three questions, which are not subject matter of this litigation. It is stated by learned counsel for the petitioners that even after the judgment by the Division Bench, out of three questions disputed therein, one question was later on corrected by the RPSC, which was question No. 67 of Paper II Series I. This is to demonstrate that even after the judgment of Division Bench, the RPSC corrected its position, thus judgment aforesaid should not be taken as bar to refer the matter to the expert committee for the question/s disputed herein, rather in all fairness, the RPSC has taken up the matter even after the judgment of Division Bench and corrected the question which was subject matter in special appeal.

In view of the above and in my opinion, instead of making any comment regarding correctness of question or its answer, it would be just and proper to refer the matter to the RPSC with the direction to constitute an expert committee of three members and if possible, to refer to an agency to get fair opinion regarding disputed question/s. The direction aforesaid has been given looking to the reasons that two members committee''s opinion seems to justify even incorrect answer instead of giving fair opinion regarding its correctness and for that purpose, illustration of question Nos. 70, 101 of paper I and question No. 119 of paper II has been given where expert opinion is not correct on the face of it. It would be expected from the committee to give fair opinion regarding correctness of question and its answer instead of justifying correctness of the question or answer. On getting expert opinion, the RPSC may declare the result afresh so that process of recruitment can be expedited. The direction aforesaid is supported by the view of Hon''ble Supreme Court in the case of Guru Nanak Dev University (supra) and after framing an opinion be referring few questions and answers.

The second issue is as to whether marks of each question and subjects should be decided as per the amended rules of 2011. For ready reference, Notification dated 29.06.2011 for scheme of examination and syllabus given in the advertisement is reproduced hereunder:

Scheme of examination and syllabus for the post of Headmaster Secondary School

(1)The examination shall carry 600 marks.

(2)There will be two papers. Both the Papers shall be of 300 marks each. Duration of both the Papers shall be Three hours each.

(3)All the question in both the Papers shall be Multiple Choice Type questions.

(4)Negative marking shall be applicable in the evaluation of answers. For every wrong answer one-third of the marks prescribed for that particular question shall be deducted.

Explanation:- Wrong answer shall mean an incorrect answer or multiple answers.

(5) Subjects included in both the papers and marks given to them are shown on the table below:

The perusal of the scheme of examination and syllabus as per the Notification dated 29.06.2011 reveals that it is divided in paper I and II with different subjects. For paper I, five subjects exist whereas for paper II, syllabus is for six subjects. The number of question/s and total marks for each subject is given separately. There would have been no difficulty to maintain number of question and sanctity of marks to each question if all the questions and answer/s are set correctly because RPSC had given number of question and marks of each subject as per rules. For illustration, in paper I, subject I, the number of questions required to be asked are 40 containing total 80 marks. The aforesaid has been maintained by the RPSC. The difficulty to maintain marks for each subject arose at the stage when few questions either found to be incorrect, thus ordered to be deleted or it was not containing correct answers initially, thus corrected subsequently. Hence, change is made in the total marks. The difficulty does not exist on correction in the answer but arose due to deletion of certain questions. If the illustration is taken for subject I of paper I then number of questions to be asked is 40 containing 80 marks. If five questions are deleted then it remains for 35 questions for 80 marks, thus 35 questions should contain weightage of more than 2 marks due to deletion of five questions in the particular subject. The respondents, however, given weightage of marks by bifurcating it in all the five subjects of paper I. In view of above, if there was no deletion in paper II containing 40 questions of 80 marks, due to weightage, total marks provided goes beyond 80 because with the weightage, as 40 questions carry weightage of more than 2 marks. The aforesaid violates rules as amended by the Notification dated 29.06.2011.

In view of the above, I find that mechanism of marks to be adopted by the RPSC should have been such which does not violate rules and accordingly, if any question is deleted out of any subject of paper I or II, weightage of marks to the remaining question should be given on the particular subject from where it has been deleted so as to maintain sanctity to the total marks of each subject given under the Notification dated 29.06.2011.

In view of above, I am not inclined to accept the action of the RPSC to give weightage of marks of a deleted question of a particular subject, on all the subjects of paper I or II instead of restraining it to the subject concerned. In view of the above, even second issue raised by learned counsel for the petitioners is accepted. The respondents are directed to give weightage of marks of deleted question subject-wise to maintain total marks provided under the rules for each subject pursuant to Notification dated 29.06.2011. In view of above, for subject I of paper I, total marks should not go beyond 80 and it should be for all other subjects so as is given in the table appended to the advertisement. The RPSC may accordingly correct the marks, though I appreciate that it will cause some problems because questions were not asked subject-wise but with jumbled number but then to give sanctity of the rules, aforesaid exercise is required to be undertaken.

With the aforesaid direction/s, all these writ petitions are allowed. The RPSC is expected to undertake required exercise and issue select list at the earliest so that recruitment for the post of Headmaster are not delayed. The prayer for quashing of result as well as process of selection for the reasons aforesaid cannot be accepted, rather it is summarily rejected in view of appropriate directions to correct the result.