W.P.(C)/5219/2014 of SEEMA SINGHAL Vs DELHI SUBORDINATE SERVICE SELECTION BOARD & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 19.08.2014

W.P.(C) 5219/2014, C.M. NO.10377/2014 & 10378/2014

MS. SEEMA SINGHAL

..... Petitioner

Through : Sh. Aditya Agarwal with Ms. DivyaAggarwal, Advocates.versus

DELHI SUBORDINATE SERVICE SELECTION BOARD &ORS...... RespondentsThrough : Ms. Zubeda Begum, Standing Counsel(Civil), GNCTD with Ms. Sana Ansari, Advocate,for Resp. Nos. 1 and 5.Ms. Puja Kalra, Advocate, for Resp. No.2.Sh. G.D. Mishra, Advocate, for Resp. No.3.Sh. Kumar Rajesh Singh, Standing Counsel, forResp. No.4.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%C.M.NOS.10377/2014(forexemption)&10378/2014(forexemption)

Allowed, subject to all just exceptions.

W.P.(C) 5219/2014

1.In these writ proceedings under Article 226 of the Constitutionof India, orders of the Central Administrative Tribunal (CAT) in T.A.No. 79/2013 dated 20.5.2014, and in R.A. No. 124/2014 dated16.7.2014, are challenged on the ground that they are contrary to thelaw laid down in Kanpur University v. Samir Gupta, (AIR 1983 SC1230).

2.The facts are that the writ petitioner was candidate appearingin the Delhi Subordinate Services Selection Board (“DSSSB”)examination for the post of primary teachers, held on 15.06.2008. Theresult was published on 27.9.2008. The petitioner found that she hadsecured only 119 out of 200 marks, whereas the cut-off was 120/200.The petitioner submits that the evaluator of her examination hadwrongly marked as incorrect, her answer for question No. 13, in herpart II Hindi paper. It is argued that the question was to provide asynonym for “kadali”; the petitioner’s response was “kela”. She aversthat both words mean “banana” in reputed Hindi-English dictionaries.However, the evaluator did not award her any marks for this question,deeming the response to be incorrect. The petitioner argues, placingreliance on Kanpur University (supra) that, had she been awarded 1mark for this question, she would have reached the cut-off mark of120.

3.Therespondentargued,relyingonH.PPublicServiceCommission v. Mukesh Thakur and Anr., 2010 (6) SCC 759, that thereexisted no rules for re-evaluation of answer sheets; only re-totalling of

the marks awarded i.e. verification was permitted. Since the questionswere of subjective type, there was no uniform yardstick to assess thequality of answers attempted, which the candidate could challenge asbeing incorrect. Any attempt to apply the decision in these facts, oreven comparison to Kanpur University (supra), would not beapposite, as there existed an objective yardstick in that case i.e. the“answer key”, which could potentially be challenged as beingincorrect.

4.The CAT held, without going into the question of thecorrectness of the petitioner’s response, that it was nobody’s case thatthe Rules provided for re-evaluation of answer sheets, owing to whichit refused to direct re-evaluation of answer sheets, in accordance withthe law in Mahesh Thakur (supra). It held that Kanpur University(supra) did not apply in this case, there being no “answer key”, sincethe test in question was not comprised of objective/multiple choicequestions. Thus, CAT could not possibly sit in review over thecorrectness of the answer key supplied for evaluation. In reviewproceedings, the CAT observed that review jurisdiction could not beinvoked interchangeably with the appellate jurisdiction. Since theapplicant petitioner had merely sought to re-argue the same case inreview proceedings, as though they were appellate proceedings, theCAT affirmed its order in the transfer application.

5.Learned counsel for the petitioner argued that the CAT fell intoerror in not considering the fact that, after CBSE v. AdityaBandopadhyay, (2011) 8 SCC 497, the answer sheet could be obtained

by the petitioner by recourse to the Right to Information Act. For thisright of inspection of answer sheets to be meaningful, right of reviewof the evaluation must also concomitantly be recognised. Theinformation and material unambiguously pointed to the petitionerhaving furnished the correct answer. Therefore, her claim for re-valuation could not have been denied only on account of absence ofrules permitting it. It was highlighted that since right of inspection ofanswer sheets is permitted, not only the process of decision making,but also the correctness of the decision i.e. of award of marks could begone into by the Court, when it is so flawed as to be called perverseand unreasonable.

6.This Court has considered the submissions. At the outset, thisCourt finds that the petition must fail on account of delay and laches.The examination was conducted on 15.6.2008 and the results werepublished on 27.9.2008. However, this candidate chose to advance achallenge only on 28.1.2010, about 16 months later, and that too,before this Court in writ proceedings (in W.P. (C) no. 657/2010), andnot before the Central Administrative Tribunal as required by theAdministrative Tribunals Act, 1985. The matter was transferred bythis Court to the Tribunal by the order of 05.09.2013, which records asfollows:

"3. Admittedly, MCD is covered in the schedule ofinstitutions, disputes of which have to be decided by theCentral Administrative Tribunal (CAT) in view of Sections14 and 19 of the Administrative Tribunals Act, 1985.

4.Therefore, this writ petition is transferred fordecision to the CAT, Principal Bench, New Delhi. …"

7.There is no explanation on record, or in W.P. (C) no. 657/2010,for the 16 month delay in moving the Court. Since the CAT ought torightly have been approached, the limitation period stipulated inSection 21 of the Administrative Tribunals Act, 1985 is instructive inthis regard. Section 21(1) requires that proceedings should be movedbefore the CAT, within one year of final order of the Government, orauthority, or officer, to whom representation has been made by theaggrieved employee. This Court notes that no representation to theDSSSB has been placed on record, which could possibly justify thelapse of 16 months from the date of publication of the results of theexamination, before the filing of the writ petition. There is nothing onrecord to indicate that the effort to obtain the answer sheets throughthe RTI was so time-consuming as to merit 16 month delay. Eventhe RTI applications are not filed on record. In any event, any publicauthority in receipt of an RTI application must supply the informationwithin 30 days of the application. This makes it highly unlikely thatthe RTI efforts itself caused the delay. On this count alone, this Courtfinds that this writ petition must fail.

8.Moreover, this Court notes that the petitioner argues, invokingKanpur University (supra), that the answer provided by her in theexam is correct, and hence must be awarded marks. In effect, thepetitioner seeks to have this Court direct re-evaluation of her answersheet. This Court finds that it is bound by the position of law laid

down in Mukesh Thakur (supra), and cannot direct re-evaluation ofanswer sheets in absence of rules/regulations permitting the same.

9.The position of law in this regard began with Maharashtra StateBoard of Secondary and Higher Secondary Education and Anr. v.Paritosh Bhupeshkumar Sheth and Ors., (1984) 4 SCC 27, in whichthe Court held that court cannot direct re-evaluation (by strikingdown rules prohibiting it) on the ground that every student has theright to receive marks fairly and in manner commensurate to his orher performance. The Court held that it could not create right ofinspection, disclosure, and re-evaluation of answer sheets, in light ofthe express rule that forbade re-evaluation while only permittingverification of answer sheets (whether all questions have beenawarded marks and the marks have been totalled correctly, etc.). Thisposition was affirmed in Pramod Kumar Srivastava v. Bihar PublicService Commission, (2004) 6 SCC 714, in which the Court held thatin absence of rule permitting re-evaluation, the Court could notpossibly direct it, since there existed safeguards to ensure that answerbooks are not tampered with, and that uniform method is used formarking all the answer books of various candidates. Pertinently, it wasobserved that if Courts started directing re-evaluation, then candidateswould start approaching courts to “take chance” and seek re-evaluation through writ proceedings; Courts would then directindividual answer books back to the evaluation committee for asecond opinion, which would ultimately add to delays in declarationof final results. Should some candidates secure lower marks on re-

evaluation, there would no rules clearly stating whether the marksafter re-evaluation would be binding, thus leading to an impracticalsituation in an area where the rules are nebulous at best, and non-existent at worst. These are the reasons for which re-evaluation inparticular is not permitted by Courts, where the rules do not admit ofsuch mechanism. These cases make it clear that the overridinginterest sought to be protected is preventing random claims for re-evaluation by candidates who are willing to venture chance that theiranswers might receive higher marks than initially awarded. If thiswere to be permitted, there would be no method to ensure that all theother candidates who were denied marks in similar circumstances,would equally be beneficiaries of higher marks. This is because thereexist no objective criteria by which re-evaluation can possibly bedirected, as the responses would be subjectively evaluated. Thesecases were similar to the case at hand, in that there was no answer keyto indicate single, objective, correct answer, since the questions werenot Multiple Choice Questions (“MCQ”).

10.In this conspectus, the decision in Kanpur University (supra)would be inapplicable. In that case, and others where the testing wasby MCQs, the question of re-evaluation does not even arise forconsideration, since possible finding by Court that the key answersare indeed incorrect, or that more than one key answer could becorrect, does not occasion “re-evaluation”. This follows from thefact that MCQs are premised on the assumption that there is only one,

objective, correct answer to every question. As recognised in KanpurUniversity (supra):

"18. …in system of 'Multiple Choice Objective- type test',care must be taken to see that questions having anambiguous import are not set in the papers. That kind ofsystem of examination involves merely the tick-marking ofthe correct answer. It leaves no scope for reasoning orargument. The answer is 'yes' or 'no'. That is why thequestions have to be clear and unequivocal."

11.In MCQ tests, akin to that in Kanpur University (supra), thevery finding that key answer is not the objective, single, correctanswer of the four options provided, and that another answer is“correct” according to those well-versed in the subject, itself wouldmerit the awarding of additional marks to candidates who had chosenthe latter answer. There arises no need to “evaluate” or examine aresponse of candidate for second time, since all candidates whohave answered in accordance with the answer key that the experts inthe field affirm, are automaticallyentitled to the award of additionalmarks. On the other hand, the cases laying down the rule againstdirecting re-evaluation, are in the context of examinations whichrequire candidates to write out answers in long-form, and not selectone of four choices as the correct answer. Each candidate would stylehis or her answer’s content subjectively, and each response would beevaluated by standards subjective to each examiner. Therefore, there isno possible method by which an objective standard can be determinedto judicially review candidates’ answers as being “correct” orincorrect, and then direct consequent re-evaluation.

12.For the above reasons, the writ petition is dismissed. No orderas to costs.

S. RAVINDRA BHAT(JUDGE)

AUGUST 19, 2014

VIPIN SANGHI(JUDGE)