IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31-7-2008 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.12127, 13762, 14853, 14854, 14855, 14856, 17195, 17247, 17248, 17252, 17452, 17472, 17473, 17474, 17475, 17695, 17696, 17912, 17913, 17914, 18104, 18105, 18106, 18107, 18108, 18109, 18110, 18140, 18296, 18392, 18416 & 18417 of 2008 and Connected Miscellaneous Petitions W.P.No.12127of 2008 S. Senthil Kumar ... Petitioner Vs. The Secretary, Tamil Nadu Public Service Commission, Chennai - 600 002. ... Respondent PRAYER: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the respondent to treat the petitioner as having passed the Group-1 Services Preliminary Examination 2006-2007 conducted by the respondent on 23.12.2007 by rectifying the wrong key answers assigned to Question Nos.118, 133, 140, 143, 152 & 167 in the said examination. For Petitioner in W.P.12127/2008 : Mr.N.Vijay Narayan, Senior Counsel for Mr.P.K.Rajesh Praveen Kumar For Petitioner in W.P.13762/2008 : Mr.N.G.R.Prasad for Mr.C.Sivakumar For Petitioners in W.P.14853to14856, : Mr.K.M.Vijayan, 17472 to 17475, 18392/2008 Senior Counsel, for Mr.R.Sivakumar For Petitioner in W.P.17195/2008 : Mr.N. Umapathy For Petitioners in WP.17247&17248/2008 : Mr.S.Subbiah For Petitioner in W.P.17252/2008 : Mr.P.V.Rangarajan For Petitioner in W.P.17452/2008 : Mr.V.Bhiman For Petitioners in WP.17695,17696 & : Mr.M.Vijay Anand 18296/2008 For Petitioners in WP.17912to17914/2008: Mr.N.Velmurugan For Petitioners in WP.18104 to 18110 & : Mr.G.Rajan 18140/2008 For Petitioners in WP.18416,18417/2008 : Mr.S.Saravanakumar For Respondent/TNPSC in all : Mr.A.Arul writ petitions COMMON ORDER By consent of both sides, all the writ petitions are taken up for final disposal. 2. Since the issue involved in all these cases are one and the same, all the writ petitions are disposed of by this common order. 3. The common prayer in all these writ petitions are for issuing a writ of mandamus directing the respondent to treat the petitioners as 'passed' in the Group-I Services Preliminary Examinations 2006-2007 conducted by the respondent on 23.12.2007 by rectifying the wrong key answers assigned to question Nos.118, 133, 140, 143, 152, 167 & some other questions and permit them to write the Group-I main written examinations scheduled to be held on 16.8.2008 and 17.8.2008. 4. The facts in nutshell that are necessary for disposal of all these writ petitions are as follows: (a) The case of the petitioners in all the writ petitions is that the respondent TNPSC issued a notification on 1.8.2007 and invited applications for direct recruitment to the vacancies for the posts included in Group-I Services 2006-2007. The said notification was issued after a gap of seven years. Total number of vacancies notified are 178, distributed among posts in various categories. Petitioners applied for the said posts and also appeared in the preliminary examination (screening test) conducted from 16.12.2007 to 26.12.2007, according to their optional subjects. (b) For Group-I Services, selection procedure consists of three stages viz., Preliminary Examination (Short listing), Main Written Examination and Oral Test. The preliminary examination is a screening test based on objective type questions i.e., to choose the best answers out of the given four options. The respondent has to call for candidates at 1:10 ratio for appearance in the main written examination from various categories. The main written examination is a written test containing General Studies Paper-I and Paper-II. The successful candidates in the main written examination are called for the oral interview for final selection. The selection list will be announced based on the combined marks secured in the main written examination and oral test. Posts are allotted according to the descending order of merit in accordance with the preference given by the candidates in their application. (c) The preliminary examination results were declared on 25.4.2008. In the preliminary examination 200 objective type questions were asked. Each question carries 1.50 marks and the total marks are 300. The cut-off marks fixed for each category and the actual marks obtained by the petitioners in all these writ petitions are as follows: ----------------------------------------------------------------------------------------------------------------------------------------------------------------
Sl. W.P.No. Name of the Community Cut-Off Marks
No. Candidate/ Marks Obtained
Petitioner
—————————————————————————————————————————————————————-
1. 12127 S.Senthil Kumar SC 195 192
2. 13762 R.Govindasamy ST 156 151.5
3. 14853 S.Anantha Kumaar SC 195 193.5
4. 14854 M.A.Ravi Varma SC 195 192
5. 14855 P.V.Vijaya Karthik Raj SC 195 193.5
6. 14856 G. Ravichandran SC 195 177
7. 17195 S.Velmurugan BC 201 198
8. 17247| T. Geetha BC 187.5 186
17248| (Women)
9. 17252 V.Prasad BC 201 199.5
10. 17452 K. Ramya MBC 180 178.5
(Women)
11. 17472 R. Arvindh BC 201 199.5
12. 17473 D. Ashok Kumar BC 201 193.5
13. 17474 S. Senthil Nathan BC 201 199.5
14. 17475 S. Mugesh SC 195 192
15. 17695 P. Radhakrishnan BC 201 190.5
16. 17696 M. Harikaran MBC 196.5 190.5
17. 17912 C. Sivakumar BC 201 192
18. 17913 D. David Rajkumar BC 201 193.5
19. 17914 M.Deepak Pious BC 201 199.5
Bakkiaraj
20. 18104 J.Mullai Arasu BC 201 192
21. 18105 G. Radhakrishnan BC 201 195
22. 18106 S. Santhakumar ST 156 154.5
23. 18107 Ramakrishnan SC 195 192
24. 18108 A. Felix Raja BC 201 196.5
25. 18109 V. Jayendran MBC 196.5 192
26. 18110 S. Ethiraj SC 195 190.5
27. 18140 Dr.S.Periannan BC 201 193.5
28. 18296 L.Infant Maria Roger- BC 201 193.5
29. 18392 C. Sangu MBC 196.5 175.5
30. 18416 K. Anbuvijayan MBC 196.5 195
31. 18417 S. Pandiarajan SC 195 189
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(d) It is the specific case of the petitioners that the marks awarded to them are lesser than the expected marks, which according to the petitioners is due to the wrong key answers given for some questions as well as wrong questions asked and more than one answer is correct in certain questions. According to the petitioner in W.P.No.12127 of 2008, he submitted a representation on 28.4.2006 and pointed out some controversial questions, where the Commission would have given wrong key answers, supported with evidence and even submitted the relevant text books. Immediately after the examination is over, several candidates made representations to the Commission stating similar allegations and discrepancies in the questions as well as answers. However, the Commission failed to rectify the mistakes. According to the petitioners, the Commission should have rectified the discrepancies in the questions/answers by referring the same to the experts in the field/subject or area concerned and proceeded with the valuation and awarded marks as per the correct key answers and award marks to the petitioners, who attended the questions, which are wrongly asked or more than one answer is correct. Following are the sample questions in which there were discrepancies pointed out by the petitioner in W.P.No.12127 of 2008:
“(a) In Question No.118
Consider the following statements:
Assertion (A): Buddhism does not accept the theory of Karma. Reason (R): It does not accept the existence of permanent self. Now select your answer according to the coding scheme given below:
A) Both (A) and (R) are true and (R) is the correct explanation of (A)
B) Both (A) and (R) are true, but (R) is not the correct explanation of (A)
C) (A) is true, but (R) is false
D) (A) is false, but (R) is ture.
For this question option ‘D’ – “(A) is false, but (R) is true” is the correct answer. This can be proved from any history text book. However, the Commission has treated ‘B’ as the correct answer.
(b) In Question No.133
Ashrams at four stages of life came to be well established during which period ?
A) Pre-Vedic period B) Rig Vedic period
C) Later-Vedic period D) None of these
For this question option ‘D’ – “None of these” is the correct answer, since post vedic period is the correct answer. This can be proved from any history text book. However, the Commission has treated ‘C’ as the correct answer.
(c) In Question No.140
The Pallava rulers believed in
A) Jainism B) Buddhism
C) Hinduism D) Shaivism
For this question, option ‘D’ – “Shaivism” is the correct answer, which could be proved beyond doubt from any history text book. However, the Commission has put ‘A’ as the correct answer.
(d) In Question No.143
Consider the following statements:
Assertion (A): Curzon partioned Bengal in 1905
Reason (R) : He wanted to destroy nationalistic unity.
Now select your answer according to the coding scheme given below:
A) Both (A) and (R) are correct and (R) is the correct explanation of (A)
B) (A) is correct, but (R) is wrong
C) Both (A) and (R) are correct, but (R) is not the correct explanation of (A)
D) Both (A) and (R) are wrong.
For this question option ‘A’ – “Both (A) and (R) are correct and (R) is the correct explanation of (A)” which could be ascertained by careful study and also have been mentioned by great historians like Grover & Grover. However, the Commission has put ‘C’ as the correct answer.
(e) In Question No.152
The important parts during the Sangam Age were
i) Kaveripattinam ii) Madurai iii) Arikamedi
iv) Kapatapuram v) Musiri
of these,
A) (i), (ii) and (iv) B) (i), (ii) and (iii)
C) (i), (iii) and (v) D) (ii) only
For this question, option ‘C’ was the correct answer if it is considered as Ports as per the tamil version of the question.
(f) In Question No.167
The length of India’s coast line is about
A) 7516.6 km B) 7500.5 km
C) 7000 km D) 6100 km
For this question, option ‘A’ – India’s Coast Line “7516.6 km is the correct answer, since it includes Andaman & Nicobar Islands. However, the Commission has put ‘D’ as the correct answer.”
(e) Similar was the averments made by the other petitioners. Some of the petitioners pointed out ambiguity in more number of questions. According to the petitioners, since the selection is being made after seven years and the petitioners may not be in a position to apply in the next selection due to over age, they are left with no other remedy except to file these writ petitions for rectifying the wrong key answers and for awarding marks either on the ground that the questions framed are wrong, or key answers furnished are wrong, or if more than one answer is correct, the petitioners who attended those questions should be given 1.50 marks each and by awarding marks in such manner they will get the cut-off marks or more for their appearance in the main written examination.
5. The respondent/TNPSC filed counter affidavit by stating that the preliminary examination is meant to serve as a screening test only. The marks obtained in the preliminary examination by the candidates, who are declared qualified for admission to the main written examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the main written examination will be in the ratio of 1:10 having regard to the rule of reservation of appointments. However, if same marks are secured by more than one candidate within the respective reservation group, all of them will be admitted. Final selection will be made on the basis of the total marks obtained by the candidates in the main written examination and oral test taken together, subject to the rule of reservation of appointment taking into account the options of posts exercised by the candidates in the order of preference. A candidate, who has not appeared in any one of the papers in main written examination or oral test will not be considered for selection. It is further stated in the counter affidavit that since the petitioners herein have not secured the cut-off marks prescribed for each category, they are not entitled to appear in the main written examination. Insofar as settling of discrepancies in the questions and key answers, the procedure followed by the Commission is as follows:
“6 (i) According to para 42 of the “Instructions etc. to the Candidates” appearing for the objective type examinations”, the information received from the candidates or otherwise considering as defective in the question/answer within 3 days from the date of examinations are taken into account and the same are referred to 2 independent subject experts normally. If there is any difference of opinion between the two examiners, it is referred to the third examiner.
(ii) The said well established procedure is followed for this recruitment also. In this connection it is submitted that the Commission has received representations pointing out certain discrepancies on some key answers in the preliminary examination. The said discrepancies have been referred to three individual experts and their opinions have been obtained individually.
(iii) Based on the opinion of the three experts, the correct key answers have been arrived at and accordingly the tabulation of results has been done and the Register Numbers of the candidates qualified for Main Written examination arrived at have already been published in the newspapers. Thus, all the discrepancies pointed out by the candidates had already been settled. …..”
It is further stated in the counter affidavit that as per paragraph 42 of the instructions, the candidates must submit a representation to rectify the discrepancies within three days from the date of examination and if no discrepancy is pointed out within three days, the same will not draw the attention of the Commission as per the instructions. According to the respondent, out of the six questions referred by the petitioner in W.P.No.12127 of 2008, five questions that is question Nos.118, 133, 140, 152 and 167 have already been settled based on the opinion of the three individual examiners since representations were received from candidates within the time as stipulated in paragraph 42 of the instructions. In the remaining one question i.e., question No.143, none of the candidate pointed out any defect. Pointing out these aspects, the respondent prayed for dismissal of the writ petitions.
6. The learned Senior Counsels and other counsels appearing for the petitioners submitted that question Nos.62, 88 and 130 are wrong according to the English and Tamil versions. Insofar as question Nos.137, 173 and 174, the key answers are wrong and therefore the petitioners who have attended the said questions are entitled to get 1.50 marks each. The learned Senior Counsels also submitted that admittedly some of the candidates appeared for the examination submitted their objections within three days with regard to the wrong questions and till date it could not be ascertained as to whether the key answers are right or wrong, in view of the non-disclosure of the key answers by the respondent. The respective counsels contended that unless and until the key answers are disclosed, petitioners will not be in a position to point out the mistake in the key answers and therefore the submission that within three days no objection was raised and therefore the petitioners are not entitled to seek these prayers, is unsustainable. In support of the said submissions the learned counsels cited certain decisions.
7. The learned Standing Counsel appearing for the TNPSC pointing out the contentions raised in the counter affidavit contended that wherever the candidates submitted objection within three days, the Commission referred the matter to the experts and awarded marks at the time of valuation and after expiry of three days no application for review or verification as to whether the question is correct or the key answer is correct can be entertained. Petitioners having not applied in time before the respondent pointing out the fact of wrong questions or wrong key answers within three days, they have no right to file these writ petitions and seek permission to write the final written examination for selection. In support of the said submission, the learned Standing Counsel for the respondent cited certain decisions.
8. I have considered the rival submissions made by the learned Senior Counsels and other Counsels appearing for the petitioners as well as the learned Standing Counsel for the TNPSC, respondent herein.
9. The question arises for consideration in all these cases are as to whether the petitioners have got any right to point out any defect in the questions asked, more than one answer is correct in the choices given and whether the key answers are wrong, after three days of their examination.
10. Before deciding the said main issue certain factual aspects are necessarily to be considered for proper appreciation of the issues involved in these cases.
11. The learned Standing Counsel for the respondent/TNPSC produced the opinion of the three experts with regard to the discrepancies pointed out by the petitioners regarding questions/key answers, which reads as follows:
“Opinion of the three Experts
with regard to the discrepancies pointed out by the petitioner
regarding Questions/Answer Keys
Q.No ‘A’
Series
Opinion of the
First Expert
Opinion of the
Second Expert
Opinion of the
Third Expert
Remarks
62
Correct answer is
‘C’
Correct answer is
‘C’
Correct answer is
‘C’
Answer ‘C’ valued
88
Correct answer is
‘C’
Correct answer is
‘C’
Correct answer is
‘C’
Answer ‘C’ valued
130
Correct answer is
‘A’
Correct answer is
‘A’
Correct answer is
‘A’
Answer ‘A’ valued
Q.Nos.137, 173 & 174 (Remarks) – None of the candidates who appeared for the examination had pointed out as defective. Hence the said questions were not considered to be defective and therefore the Question of taking into Account for settling discrepancies did not arise. The belated claim of the candidate could not be entertained at the stage as the results of the Preliminary Examination had already been announced.”
In Question No.167, the expert opinion varies with regard to the text book viz., Manorama Year Book. Since the correct answer varies from the distance stated in the said book even according to the experts appointed by the respondent, marks are awarded to all the candidates, who have appeared for examination as there are three different answers. It is relevant to note that the respondent is not justified in awarding 1.50 marks to all the candidates who have appeared for the examination, but the proper course that should have been adopted is to award 1.50 marks to those candidates who have attended question No.167.
12. The contention of the petitioner that English version of question No.62 is wrong is also well founded. The correct question should be, “The important ports during Sangam age were …..”, but, in the question paper it is wrongly mentioned as “The important parts during Sangam age were ….”. In view of the said discrepancy pointed out, the persons who have attended question No.62 should be given 1.50 marks.
13. For question No.130, according to the petitioners, option ‘D’ – Saivism is the correct answer as per the history text book. However, the respondent has chosen option ‘A’ as the correct answer. Similarly, for question No.137, according to the petitioners, option ‘A’ is the correct answer viz., the final work of UPSC in recruitment process is selection and the respondent has assigned wrong key answer. For question No.173, according to the petitioners, option ‘A’ is the correct answer according to the great historians like Grover & Grover, however, the Commission gave ‘C’ as the correct answer. Similar is the contentions raised for several other questions.
14. In the light of the above assertions, which are based on leading text books/authors, there is justification in the contentions of the petitioners that the above matters viz., whether the questions are correct or the key answers are correct in respect of those questions and answers is to be ascertained by a Committee of Experts. Merely because the petitioners have not requested to verify the same within three days, the action of the respondent which is conducting examinations for recruitment to Group-I Services cannot be justified. The petitioners are right in contending that the key answers are not published till date and therefore they could not know even today whether the key answers given for valuation are right or wrong. In such circumstances, the only defence of the respondent that the petitioners have not applied within three days as per the instructions to candidates and therefore they lost their right to get re-scrutiny, cannot be countenanced.
15. The scope of interference, under Article 226 of Constitution of India, when there is violation of statutory duties and injustice caused to any person was considered by the Honourable Supreme Court in the following cases:
(a) In Dwarka Nath v. I.T.Officer, AIR 1966 SC 81 = (1965) 3 SCR 536 = 57 I.T.R. 349, a three-Judges Bench of the Supreme Court has held as follows:
“Art.226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. ….”
(b) In Rohtas Industries v. Its Union, AIR 1976 SC 425 = 1976 Labour and Industrial Cases, 303 (3J), the Supreme Court held that the expansive and extraordinary power of the High Courts under Art.226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual – and be available for any (other) purpose – even one for which another may exist.
(c) In Shri Anadi Mukta Sadguri S.M.V.S.J.M.S. Trust v. V.R.Rudani, AIR 1989 SC 1607 = (1989) 2 SCC 691, it has been held as follows:
“17. …………. Under Article 226, writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose.
18. …………..
19. …………..
20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.”
(d) In Union of India and others v. R.Reddappa and another, (1993) 4 SCC 269, the Supreme Court has observed that once the Court is satisfied of injustice or arbitrariness, then the restriction, self-imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice.
(e) In B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749, the Supreme Court approving the decision of the Orissa High Court in Krishna Chandra Pallai v. Union of India, (AIR 1992 Orissa 261)(FB) held as follows:
“High Court being a Court of plenary jurisdiction has inherent power to do complete justice between parties similar to Supreme Court’s power under Art.142.”
(f) In Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377 = AIR 1997 SC 645 = 1997 Lab.L.C. 365: (1997) 1 LNN 75, the Supreme Court has reiterated the Court’s power under Art.226 as follows:
“No limitation except self imposed – the arm of Court long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts.”
(g) Following the said decisions, K.Sampath, J. in the decision reported in (2001) 1 MLJ 180 (Sudarshan Kumar v. University of Madras) ordered re-scrutiny/proper valuation of B.E.degree paper (Electrical and Electronics Engineering) conducted by the Anna University wherein the candidate was originally given 30% of the marks and after re-assessment one Examiner awarded 78% and another examiner awarded 69% and this Court ordered to take average of the said two i.e., 75% and by virtue of that re-assessment a brilliant candidate who was declared fail in the B.E.degree was declared pass with distinction. The examination regulations of Anna University prohibits re-assessment/re-scrutiny. The learned Judge further observed in paragraph 12 as follows:
“……. The amendment to Art.226 in 1963 inserting Art.226 (1-A) reiterate the targets of the writ power as inclusive of any person by the expressive reference to the ‘residence of such person’. The Supreme Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people’s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. ……” (Emphasis Supplied)
(h) When allegations of large scale malpractice was made re-valuation was ordered to be done by the Bangalore University, Department of Commerce and Management. Even though it was not found in the scheme of examination the same was upheld by the Supreme Court in the decision reported in (2007) 9 SCC 558 (Karnataka Power Corporation Ltd., v. A.T.Chandrashekar).
(i) The question of not submitting objection in time is also considered by the Supreme Court in the decision reported in AIR 1999 SC 199 (C.Tulasi Priya v. A.P.State Council of Higher Education), wherein in the Medical Entrance Examination the candidate was initially supplied with wrong paper and only after 20 minutes, on discovery of the mistake, Invigilator supplied correct question paper, that is after 30 minutes of commencing of the examination. The non-submitting of protest was not found favour with the Supreme Court in granting relief to the said candidate and the Supreme Court in paragraph 10 observed as follows:
“………… The refusal of the High Court to interfere on this ground has, regretably, compounded the injustice done to the appellant. ………….”
(j) In the decision reported in AIR 1984 SC 1402 = (1984) 2 SCC 319 (Abhijit Sen v. State of U.P.) in paragraph 2, the Supreme Court considered the implications of supplying wrong key answers, which reads thus,
“2. At the outset it may be stated that Civil Appeal No.4116/83 (filed by appellant Abhijit Sen) and Civil Appeal No. 4118/83 (filed by appellant Satyendra Vikram Singh) were not pressed before us and have to be dismissed. Kumari Shivani Aggarwal and Kumari Sunita Khare (the appellants in Civil Appeal Nos.4117 and 4119 of 1983) have challenged the Universitys decision (which decision has been upheld by the Allahabad High Court) of refusing them admission to the MBBS course in any of the seven Medical Colleges. Learned Counsel appearing for them contended that the key-answer supplied by the paper-setter to Question 31 in Zoology paper (being alternative No.2) was wrong or incorrect and the answer given by both the appellants (by ticking alternative No.4) was the correct answer according to recognized text-books and therefore each one of these appellants was entitled to an addition of four marks (three marks for giving correct answer plus one mark which had been wrongly deducted by treating their answers as wrong) and if such addition of four marks was made each one was entitled to get admission. In the case of Kumari Sunita Khare (appellant in Civil Appeal No.4119/83) her counsel raised a further similar contention with regard to Question 100 in Zoology paper, as according to him the key-answer supplied by the paper-setter (being alternative No.3) was clearly wrong or incorrect while the answer given by that appellant (by ticking alternative No.4) was the correct answer according to recognized text-books and therefore so far as she was concerned even if her contention with regard to Question 31 was not accepted she was entitled to addition of four marks (three for giving correct answer plus one mark which was wrongly deducted by treating her answer as incorrect) in regard to Question 100 and even on this basis she would be entitled to get admission. Counsel for the respondents did not dispute before us that if the two appellants or either of them is found entitled to an addition of four marks as suggested on their behalf they will have to be given admission to MBBS course but counsel disputed the validity of the contention urged on behalf of the appellants that key-answer supplied by the paper-setter to either Question 31 or Question 100 in Zoology paper was wrong or that the answers furnished by the appellants were correct. Counsel urged that since the Court was embarking upon a course of finding out and determining the correct answer having regard to the recognized text-books or authoritative books on the subject it would be immaterial whether the key-answer supplied by the paper-setter was found to be wrong, not being in conformity with the correct answer determined by the Court but the appellants would not be entitled to addition of four marks unless their answers were in conformity with the correct answers found by the Court. In other words according to counsel for the respondents if a situation was reached where both the answers, namely, the one given by the appellants as well as the key-answer supplied by the paper-setter, were found to be wrong with reference to the correct answer as determined by the Court the appellants should not succeed. We think there is considerable force in this last submission made by the counsel for the respondents.”
In the said decision the Supreme Court granted relief to one candidate.
(k) Ordering re-valuation of answer books only to the candidates approaching the High Court till the date of the decision is also upheld by the Supreme Court in the decision reported in (1996) 7 SCC 106 (State of Orissa v. Prajnaparamita Samanta) wherein at para 8 the Supreme Court held thus,
“8. Admittedly, the petitioners and the appellants in question had approached either the High Court or this Court after the decision of the High Court on 27-3-1992. The High Court has rightly set down the said date as a cut-off limit and directed consideration of the answer books only of those examinees who had approached the High Court till that date. It is only those who are diligent and approach the court in time who can be given such relief. The academic year cannot be extended for any length of time for the benefit of those who choose to approach the court at their sweet will. The consideration on the basis of which relief is granted in such cases is always circumscribed by the tenure of the academic year(s) concerned. We, therefore, do not see anything wrong if the High Court has laid down the said date as the cut-off date for the purpose. In the circumstances, there is no merit in these writ petitions and the civil appeals, and they are dismissed with no order as to costs.” (Emphasis Supplied)
(l) In the recent decision of the Supreme Court reported in AIR 2007 SC 3098 = (2007) 8 SCC 242 (Secretary, W.B.Council of Higher Secondary Education v. Ayan Das) the Supreme Court gave a caution to entertain writ petition seeking re-valuation and direction to produce answer papers. In paragraph 10 (SCC) it is held as follows:
“10. The courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to show that either some question has not been evaluated or that the evaluation has been done contrary to the norms fixed by the examining body. For example, in certain cases examining body can provide model answers to the questions. In such cases the examinees satisfy the court that model answer is different from what has been adopted by the Board. Then only can the court ask for the production of answer scripts to allow inspection of the answer scripts by the examinee. ………..”
(m) In (2005) 13 SCC 749 (Guru Nanak Dev University v. Saumil Garg) in paragraph 6 the Supreme Court held that paper setters and those who finalise the key answers must see that only one correct answer out of four options given and if none of the answer is correct, it is their duty to say so. Paragraph 6 reads as follows:
“6. The University is in appeal on grant of leave. We have also before us both sets of students one, students who support the University in their challenge to the directions contained in the impugned judgment, and two, the students who support the impugned directions for re-examination of the key answers in respect of all 200 questions. The High Court has also issued directions for appropriate action to be taken against those who are responsible for the entire confusion and the mess. The High Court has also issued directions for fixing responsibility on the paper-setters and those who have been vested with the responsibility to finalise the key answers and consequential steps to be taken. The said direction of the High Court does not call for any interference. Those who set the papers and those who finalise the key answers have to bear in mind that what is at stake is the career of the young students at the very threshold of their attempt to get entry into professional courses where there is cut-throat competition. The questions posed must have only one correct answer out of the four options given. Likewise, there is responsibility on those who finalise the key answers. If none of the answers is correct, it becomes their duty to say that none of the answers is correct, so that if any remedial action is to be taken, it should be taken before the answers are valuated. It is evident that on both these aspects, there was serious lapse which resulted in litigation which is otherwise avoidable.”
(Emphasis Supplied)
Again in para 12, if the questions are vague or incapable of having a correct answer the persons who attended the said questions alone can be awarded marks. The same is held in paragraph 12 of the said judgment thus,
“12. There is yet another problem, namely, that of seven questions which are so vague that they are incapable of having a correct answer. The appellant University, in respect of those seven questions, has given the credit to all the students who had participated in the entrance test irrespective of whether someone had answered the questions or not. We do not think that that is the proper course to follow. It is wholly unjust to give marks to a student who did not even attempt to answer those questions. This course would mean that a student who did not answer say all the seven questions would still get 28 marks, each correct answer having four marks. The reasonable procedure to be followed, in our opinion, would be to give credit only to those who attempted the said questions or some of them. Having regard to the circumstances of the case, we direct that for the students who attempted those questions or some of those questions, insofar as they are concerned, the said questions should not be treated to be part of the question paper. To illustrate, if a student answered all the said seven vague questions, insofar as that student is concerned, total marks would be counted out of 772 i.e. 800 less 28 and likewise depending upon number of such questions, if any, answered by the student. The seven vague questions are Question 4 in Physics, Questions 76 and 89 in Chemistry, Questions 147 and 148 in Botany and Questions 156 and 163 in Zoology of Question Paper Code A.”
(Emphasis Supplied)
(n) While preparing the key answers how much care should be taken by the Examiner/person setting the question paper and the consequences arising out of the said wrong key answers was considered by the Supreme Court in the decision reported in (2005) 13 SCC 744 (Manish Ujwal v. Maharishi Dayanand Saraswati University) (para 10).
(o) The same is the view taken by the Supreme Court in the decision reported in AIR 1983 SC 1230 = (1983) 4 SCC 309 (Kanpur University v. Samir Gupta). In paragraphs 16 and 17 the Supreme Court held as follows:
“16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.
17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the medical colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those textbooks support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.”
(p) Similar issue with regard to the wrong questions or wrong key answers or more than one answer is correct for one question with regard to the entrance examination conducted for MBBS and BDS course for the academic year 2004-2005 was considered by this Court in the decision reported in 2004 WLR 639 (D.Shylaja v. The Secretary to Government & Others). In paragraph 52 this Court directed the Anna University to re-value the answer papers for certain questions, though under the scheme revaluation was not permitted, which reads as follows:
“52. In the result, the writ petitions are allowed in part. The University is directed to revalue all the answer papers. Question Nos.27 and 33 in Biology question paper in version code MA-7, question Nos.11, 64 and 77 of version code BS6 relating to physical science shall not be deleted and mark should be awarded to any student who has indicated any of the correct choices. It is further directed question No.76 in version code BS6 should be evaluated and credit should be given to the students who have given the correct option as per the key answer provided by the paper setter. Question No.105 in version code MA-7 is to be revalued and option No.4 should be taken as the correct answer and not option No.3 as indicated by the committee. Question No.117 in version code BS6 should be deleted from consideration. The necessary revaluation may be done within a period of three days from the date of receipt of a copy of this Judgment and revised marks may be furnished to the selection committee immediately to enable the selection committee to finalise the selection. The selection committee may fix suitable dates for counselling. There is no order as to costs. Consequently, the connected miscellaneous petitions are closed.”
The said decision was confirmed by a Division Bench of this Court in W.A.No.2476 of 2004 etc., batch by Judgment dated 2.8.2004 (G.Nanthini v. The Registrar, Anna University, Chennai-25) with slight modification with regard to the number of question. While disposing of the writ appeals, in paragraph 6 the Division Bench held as follows:
“6. Before parting with the case, we want to address the respondents something in the interest of students and their parents in the context of quality of examination. The very object of bypassing the descriptive type examination and choosing the objective type multiple choices examination is to enhance the standard of education so that the student is made ready to answer more questions just by ticking the correct answer out of four alternative answers. For that purpose, he is made to read comprehensively, absorb the contents and then come to a quick decision. When quick decision with such precision is the objective, among the alternative answers provided, one should be the correct answer while the remaining three should not be correct. Only then the correct answer can be called as the key answer. There cannot be a concept of more than one key answer. Key answer shall be only one. The courts have been doing this exercise and sometimes, in the interest of the career of the students, direct the awarding of marks for more than one question. But that should be only an exception and not the rule. But, unfortunately, the exception has become a rule and the rule an exception because of the falling standards in the conduct of examinations. We do not understand as to why there should be an appellate forum, even at the threshold, by setting up an expert committee. The paper setter chooses questions from question bank where the key answers are already provided. By setting up the expert committee, the paper setter is reduced to just a clerk, as the key answer which is indicated has got absolutely no weightage as against the opinion of the expert committee as the University conducting the examination only takes note of the views of the expert committee for awarding marks. This practice has to be discontinued. When the papers are set, choosing questions from the question bank already carrying the key answers, experts in the various disciplines have to be chosen to form the question bank and that should be a step before conducting the examination and not like the instant one in setting up the expert committee ex post facto. All the questions should be definite and so also the answers provided. All efforts should be taken that there should not be more than one correct answer as a key answer and no room is given for creating any confusion.”
16. The judgments cited by the learned Standing Counsel for the respondent to the proposition that the instructions given to the candidates are binding on the candidates like prospectus, is the general rule. But the above referred judgments are rendered taking exception to the said general rule.
17. All these petitioners have appeared in the screening test, which was conducted after seven years. The petitioners may not be in a position to appear for the Group-I selection in any subsequent selection due to their over age and they having secured good marks in the screening test and lacking behind by only 1.5 to 9 marks, by awarding marks for 1 to 6 questions, there is possibility for them to get qualified for the main written examination. The respondent in the counter affidavit raised only a technical objection i.e., not raising objection within three days of the examination and not authenticatedly stated that there is no mistake in the key answers, the petitioners are entitled to succeed in these writ petitions to a limited extent.
18. In the light of the above findings and having regard to the judgments cited supra, I am inclined to pass the following orders:
(i) The petitioners herein are directed to submit representation pointing out the number of questions where the questions are not correctly asked, more number of answers are found correct as per leading text books and whether key answer to the questions are correctly given on or before 7.8.2008.
(ii) On receiving the said representations the respondent/TNPSC is directed to place the disputed questions/answers before the Expert Committee to be constituted by it for verification as to whether the questions pointed out are correct, if more than one answer given in the choice are correct and whether the key answers given to any question pointed out by the petitioners are wrong.
(iii) On verifying the same, the Expert Committee is directed to award marks to such of those petitioners who attempted the said questions and on that basis determine the final marks of the petitioners in the preliminary examination.
(iv) Since the above said exercise will take some time and in view of fixation of date for the main written examination as 16.8.2008 and 17.8.2008, the respondent/TNPSC is directed to permit the petitioners herein to write the main written examinations along with 1750 candidates, who are already found eligible to write main written examination.
(v) By following the above process, if the petitioners are getting the required cut-off marks prescribed for the respective category, their final written examination papers shall be valued. If the petitioners are not getting the required cut-off marks, their final written examination papers need not be valued.
(vi) Since the preliminary examination results were published as early as on 25.4.2008, and the main written examination is to be held on 16.8.2008 and 17.8.2008, the benefit of this order is restricted to the writ petitioners herein, as no general directions could be issued at this belated stage.
All The writ petitions are ordered accordingly. No costs. Connected miscellaneous petitions are closed.
vr
To
The Secretary,
Tamil Nadu Public Service Commission,
Chennai 600 002