Jitendra Kumar Jhalani v. State of Rajasthan & anr

HON'BLE MR. JUSTICE MN BHANDARI Mr SP Sharma, Sr Adv with Mr Gaurav Sharma 2 Mr Vigyan Shah Mr Ram Pratap Saini Mr Tanveer Ahmed – for petitioners Mr SN Kumawat, AAG with Mr Shantanu Kumawat Mr Abhishek Sharma – for respondents BY THE COURT: With the consent of the parties, all these writ petitions have been heard finally. It is a case where selection to the posts of Accountants and Junior Accountants was conducted by the Rajasthan Public Service Commission (for short 'the Commission'). The petitioners have raised many fold issues for my consideration. The first issue pertains to decision of the expert committee whereby certain answers have not been correctly assessed. Presently, dispute lies with three questions out of which answers of two questions have been found to be incorrect even by the Commission thus dispute remains only for one question i.e. question No.43 (Paper–II, series-D). Aforesaid question needs to be examined by the Commission through an expert committee. 3 Further dispute is in regard to questions No.13 and 57 (Paper-I, series-A). A prayer is made to direct the respondents to get these questions examined and, at the same time, two questions found to be incorrect, may be deleted. Other issue is regarding certain questions to be out of syllabus. Learned counsel for petitioners submit that pursuant to the objections called by the Commission, representation was made indicating certain questions to be out of syllabus as the questions were required to be of the standard of Class-X . Thus questions were initially deleted but subsequently again they were included in an illegal manner hence, respondents may be directed not to consider those questions which were earlier deleted being out of syllabus. The third issue pertains to value of marks of the questions. It is stated that after finding certain questions to be incorrect, respondents had given proportionate weightage to the remaining questions. The weightage was given for negative as well as positive answers. By virtue of the aforesaid, candidate could not secure required 35% in individual paper though if respondents would have assessed the marks purely based on 4 answers left out then petitioners are having fair chance to get selected, more so when they are having more than 40% in aggregate. Reference of the judgment of the Apex Court in the case of “K.Manjusree versus State of Andhra Pradesh”, reported as (2008) 3 SCC 512 has been given. This is apart from the reference of the Rules to show that maximum and minimum marks for individual questions have been given therein. If value of marks are increases or decreases due to incorrect questions then it would be in violation of rules thus respondents may be directed to maintain value of the questions for negative and positive as given in the rules and assess candidature of the candidates on the basis of remaining questions to find out 35% marks in individual paper. This is more so when even after selection, number of posts are lying vacant. Learned counsel for respondents, on the other hand, submits that so far as dispute regarding two questions are concerned, consultation has been made and found it to be incorrect thus Commission will revise the marks. So far as dispute regarding three more questions are concerned, an expert committee would be constituted and opinion thereupon would be taken within a period of fifteen days. In case 5 expert committee gives report in favour of the Commission, then result would be maintained as it is, however, in case of adverse report, result would be revised accordingly. So far as certain questions to be out of syllabus is concerned, grievance of the petitioners is not tenable. After appearance in the examination they did not make any objection on the aforesaid issue till declaration of result. The objection was made after it was called on declaration of result, however, it was only regarding correctness of the questions. The Commission has wrongly deleted those questions initially however, realising the mistake, those questions have been included thus grievance of the petitioners is not tenable. So far as last issue is concerned, on deletion of questions of certain individual papers, proportionate value has been given to remaining correct answers. It is for positive as well as negative marking. The aforesaid mechanism is allowed to make the total marks to be same as it is for one paper. However, if this court will give a direction to give weightage of the questions for negative and positive marks, as provided under the rules, then result would be declared to the size of the correct questions only but it would be as an exception and without taking it to be a 6 precedent. This is also looking to the fact that even after declaration of result, it is alleged by the petitioners that number of vacancies will remain vacant, however, it is subject to verification. I have considered rival submissions of the learned counsel for the parties and perused the record. So far as first issue is concerned, apart from opinion of two questions already accepted and consequential revision of the result, respondents have agreed to get three other questions examined through expert committee. Accordingly, three questions mentioned in first para of the judgment i.e. questions 43 (Paper–II, series-D) and questions No.13 and 57 (Paper-I, series-A) would be got examined through the expert committee within a period of fifteen days from the date of receipt of copy of this order. If the expert committee report comes in favour of the Commission, then for three questions in dispute, the position will remain the same as has been maintained by the Commission. In case of expert report comes otherwise, it will change the position for those questions accordingly with revision of result. With the aforesaid directions, first issue is redressed. 7 Another issue pertains to certain questions to be out of syllabus. Learned counsel for respondents have raised serious objection. I find that knowledge about questions to be out of syllabus is gathered by the petitioners the day they appeared in the examination because for that one is not required to wait for the answer key and the result. Nothing has been shown to this court that any objection of the nature indicating certain questions to be out of syllabus was made by any of the petitioners on or before the date of declaration of the result. The objections were made after declaration of the result when it was called by the Commission. It was without understanding that objections were only to find out correctness of the questions and not to the effect whether questions were out of syllabus or not. In the background aforesaid, grievance aforesaid cannot be accepted rather petitioners are estopped to raise aforesaid issue after declaration of the result and remaining unsuccessful therein. I find that a candidate failed to raise issue regarding process of selection immediately after the examination or before declaration of the result, is not at liberty to take up the issue after remaining unsuccessful in the selection. The law on the aforesaid issue is settled by the Hon'ble Supreme Court in the case of “Dhananjay Malik & ors versus State of Uttaranchal & ors”, 8 reported as (2008) 4 SCC 171 and “Madan Lal versus State of Jammu & Kashmir”, reported as (1995) 3 SCC 486. The issue aforesaid is decided against the petitioners and in favour of the respondents. So far as third issue is concerned, it pertains as to how an individual question should be given value in case certain questions out of particular paper are deleted. For illustration, in one paper, 100 questions were set with one mark for each question for positive marking and half mark with negative marking. Out of those 100 questions, 10 questions are deleted then according to the petitioners, marking of that paper should be based on 90 marks and not by proportionate increase of value of 1 mark for remaining questions. The view has been supported by the judgment in the case of K Manjusree (supra). In my opinion, the issue aforesaid needs detailed discussion but looking to the peculiar facts of these cases where even after selection, number of posts would remain vacant, as stated, I am of the opinion that in the given circumstances and as argued by learned counsel for the Commission, as an exception to this case and without making it a precedent, respondents are 9 directed to give value to each question as given in the rules. Thereby, if any of the questions has been deleted in the particular paper, value of each question may not be increased proportionately but to maintain as it is. The marks should be valued based on correct and incorrect answers for each question with the same value, say, for a paper, 90 questions out of 100 are found to be correct, marks should be assessed based on 90 questions with the same value as was given at the initial stage and provided under the rules for determination of minimum percentage of marks required. It would be then in accordance to the rules which provide value of each question. Aforesaid exercise should be undertaken by the Commission after completion of exercise in regard to first issue. The directions would however not to be treated as precedent but as an exception to this case only and request in this regard made by learned counsel for the Commission is accepted. Since interim order was passed not to make appointment, hence respondents Commission is directed to complete the exercise, as directed, within shortest possible time, preferably within a period of two months from today. In view of above directions and observations, all these writ petitions and stay applications are disposed of. 10 (MN BHANDARI), J. bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed. (BN Sharma) PS-cum-JW