CW 12621/09 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Civil Writ Petition No.12621/2009 Hari Singh & Ors Versus RPSC & Ors 2-Civil Writ Petition No.12743/2009 Surendra Kumar & Anr Versus State & Ors 3-Civil Writ Petition No.12603/2009 Jyoti Sharma Versus RPSC & Ors 4-Civil Writ Petition No.12607/2009 Rajesh Jatav Versus RPSC & Ors 5-Civil Writ Petition No.12649/2009 Lalit Kumar Saini Versus RPSC & Ors 6-Civil Writ Petition No.12697/2009 Jitendra Kumar Versus State & Ors 7-Civil Writ Petition No.12737/2009 Kusum Lata Versus RPSC & Ors 8-Civil Writ Petition No.12899/2009 Meera Sharma & Ors Versus State & Ors 9-Civil Writ Petition No.13260/2009 Laxman Ram Jat Versus State & Ors 10-Civil Writ Petition No.13583/2009 Sunita Yadav Versus State & Ors 11-Civil Writ Petition No.13589/2009 Jitendra S. Nathawat Versus RPSC 12-Civil Writ Petition No.13593/2009 Satyavrat Sharma Versus State & Ors /Reportable/ Date of Order ::: 17/08/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Vigyan Shah,Mr. Gaurav Gupta, Mr. Anoop Dhand, Mr. Sunil Kr. Singodia, Mr. Hemant Gajraj, & Mr. Yunus Khan, for petitioners. Mr. SN Kumawat, AAG for respondent-RPSC Mr. Ganesh Meena, Govt. Adv. for respondent-State All these petitions since involve identical controversy were heard together and are being disposed of at admission stage by present order. Common issue raised is as to whether if an error has been committed by paper setter while indicating correct answer to a question CW 12621/09 //2// set up by him, can the petitioner/applicant who has opted correct answer can be deprived of marks to which he is entitled for in an open selection held by Rajasthan Public Service Commission ("PSC"); in absence whereof, has not succeeded in empanelment of his name in select list seeking public employment. A brief resume of facts culminating into filing instant petition reveal that the PSC issued advertisement dt.20/06/2008 (Ann.1) for holding selection for the post of Teachers Gr.III in Sanskrit Education Department and General Primary & Upper primary School against total 2916 vacancies - pursuant to which, 3.80 lacs applications were received; accordingly, written test was conducted on 22/07/2009 wherein 2,63,445 candidates appeared - result of examination for Teacher Gr.III (General) in Primary & Upper Primary Schools was declared on 22/09/2009 while that of Teacher Gr.III (Sanskrit) was declared on 02/10/2009. Last cut off marks in respective category published by PSC at the time of filing of petitions was disclosed vide document dt.22/09/09 (Ann.5) but that has been further notified vide communication dt.30/04/2010 - according to which select list has been finalised for appointment thereto. Present petitioners applied for the post of Teacher Gr.III (General) in Sanskrit CW 12621/09 //3// Education and as per last cut off marks with date of birth declared by PSC at the time of filing petitions, remained unsuccessful; however, there may be changes in regard to few petitioners on account of lowering last cut off marks published on 30/04/2010. The answer which the paper setter supplied to PSC is considered to be correct being called as key answer. It is not alleged by petitioners that paper setter is not aware of correct answer to the question as set up by him, but what has been contended is that paper setter has not taken enough care to supply correct key answer which is beyond a reasonable controversy. The pattern of examination undertaken by PSC in holding process of selection under advertisement impugned is what is called "multiple choice objective-type test"; where four alternative answers are indicated against each question and candidates are required to tick the correct answer from out of those four alternatives and as per the reply filed by PSC based on its expert committee report, two questions are found to be incorrect, therefore, they were ignored and their valuation of each question comes to "2.04" instead of "2" and if candidate ticks correct answer he secures 2.04 marks and if ticks incorrect answer, he looses .68 marks. Question for determination raised CW 12621/09 //4// herein is as to which out of four alternatives is correct answer. There cannot be any dispute that a duty is assigned basically to paper setter who is required to supply the PSC correct answer of each question. The controversy arises because the key answer supplied by paper setter turned out to be wrong thereby such applicants like petitioners have suffered on account of the fault on the part of PSC or paper setter, as the case may be. In the instant case, for a number of questions, it has been averred that answers having been disclosed in the answer key are incorrect/wrong but ultimately, petitioners have confined only to one question No.20 (Series “A”). Question paper is in four different series, "A, B, C & D" and the questions are the same but their No. varies and to be more specific, Q.No.20 in Series "A" and corresponding question in other series for which dispute has been raised, which reads ad infra: "20. हã दȣघाटȣ के युƨ को Ǒकस ǒवƮान ने "खमनोर का युƨ" कहा है ? (1) कन[ल टॉड (2) बदायूनी (3)अबूल फजल (4) गोपीनाथ शमा[" In the key answer, the answer to Q.No.20 (supra) was disclosed of option No.(2) (Badauni), which the applicant was supposed to answer but according to petitioners, they have CW 12621/09 //5// attempted as an answer to Q.NO.20 by putting tick at option No.(3) (Abul Fazal) and they have tried to persuade the Court that answer at option NO.(3) (Abul Fazal) is the correct answer duly supported by a number of text books published & approved by Board of Secondary Education and Rajasthan Hindi Granth Academcy which is one of Government organisation. In support, Counsel for petitioners have placed on record - extract of book at p.66 (Itihaas-II Rajasthan Ka Itihaas & Sanskrit duly approved by Board of Secondary Education Rajasthan, Ajmer (Ann.11) - "मानिसंह अजमेर से माÖ डलगढ होते हए खमनौर ु पहॅचा. दसरȣ ओर राणा ूताप अपने सरदारो के साथ ू गोगुÛ दा पहच गया ू . 18 जुन 1576 ई0 को रणभेरȣ बज उठȤ. यह 'हã दȣ घाटȣ का युƨ' कहा जाता है. कन[ल टॉड ने इसको 'मेवाड कȧ थमȾपã ली', अबुल फजल ने इसने 'खमनौर का युƨ' और बदायूनी ने 'गोगुÛ दा का युƨ' कहा है. यह युƨ हã दȣ घाटȣ के दरȶ के मुहाने से लेकर खमनौर गांव के मÚ यवतȸ ¢ैऽ मɅ लडा गया." "Maharan Pratap: by Prof. RP Vyas published by Rajasthan HIndi Granth Academy, Jaipur - extract from its p.118 (Ann.12) reads ad infra: “अबुल फजल अपने ूिसƨ मÛ थ अकबरनामा मɅ िलखता है Ǒक ूताप और मानिसंह के मÚ य युƨ खमनौर ः थान पर हआ । ु बदायूंनी ने इसे "गोगुÛ दा का युƨ" कहा है । उसके कथन के अनुसार युƨ हã दȣघाटȣ के भीतर हआ । ु " and extract of book "Rajasthan Ka Itihaas" by Sharma & Vyas (Ann.13) at p.208 reads ad infra: CW 12621/09 //6// “21 जून 1576 ई0 को ूात: काल के साथ हȣ दोनो प¢ो के मÚ य युƨ शुǾ हो गया । इसे हã दȣधाटȣ का युƨ कहा जाता है । कन[ल टॉड ने इसको "मेवाड कȧ थमȾपã ली" कहा है । परÛ तु अबुल फजल ने इसे "खमनौर का युƨ" और बदायूनी ने "गोगुÛ दा का युƨ" कहा है ।" On the contrary, respondent-PSC has placed on record extract from book (Ann.R/1) "Rajasthan Ka Rajnaitik Aum Sanskritk Itihass" by Dr.KS Gupta & Dr.JK Ojha published by Rajasthani Granthagar, Jodhpur at p.169 reads ad infra: "बदायूनी ने इसे "खमनौर का युƨ" कहा है और फजल ने "गोगुÛ दा के युƨƨ " के नाम से पुकारा है ।" which has been noticed as proof in support of the key answer disclosed by PSC by their paper setter and approved by expert committee report dt.09/02/2010 (Ann.R/2). However, it has not been approved by Education Board or by the Government at ant point of time. The petitioners have filed rejoinder alongwith document (Ann.17) sent by Rajasthani Granthagar, Jodhpur - publisher of "Rajasthan Ka Rajnaitik Aum Sanskrit Itihass" by Dr.KS Gupta & Dr.JK Ojha and it was informed that the book was lastly published in July, 1986 and since last 20 years, it had been out of print and published. At he same time, Rajasthani Granthagar, Jodhpur in its publication of book "Maharana Pratap Mahaan"- Jevan Vrat Aur Kritatav" by Dr. Devilal Paliwal - extract from its p.62 reads ad infra: CW 12621/09 //7// "अबुल फजल ने ः पं टत: खमणोर कȧ लडाई िलखा है।" Counsel for petitioners jointly submit that test books (extract whereof placed on record, supra), are duly approved and prescribed by Board of Secondary Education Rajasthan and Rajasthan Hindi Granth Academy, a body owned by State Government are having wide circulation for being read over by students desirous of appearing in competitive tests or otherwise, and they have tried to demonstrate that option NO.(2) (Badayuni) to be wrong as no reasonable prudent man well-versed in particular subject would regard it as correct and since they have attempted option (3) (Abdul Fajal) to Q.20 of Series "A", which according to them is correct answer duly supported by publication of approved test books (supra), they are entitled for marks on account of attempted right option, still they have been deprived of their inclusion in select list which respondent -PSC published on 30/04/2010 from being considered for appointment, as well and if the marks of Q.20 based on their answer attempting to option (3) (Abdul Fazal) as correct answer are referred to in their favour, their name find place within last cut off marks duly disclosed by PSC for appointment, for which they be considered based on selection impugned. Per contra, Counsel for respondents CW 12621/09 //8// jointly submit that there is no challenge to be made in regard to correctness of the key answer only on the basis of which it is found to be incorrect more so while the key answer being further scrutinized by expert committee has affirmed as is evident from its expert report; it does not require any interference to be made in a limited scope of judicial review U/Art.226 of the Constitution. There cannot be any quarrel on the issue that the key answer ordinarily is assumed to be correct unless it is proved to be wrong and it should not held to be wrong by inferential process of reasoning. On the contrary, it has to be demonstrated to be wrong that is to say it must be such as no reasonable prudent man well-versed in particular subject would regard it as correct. Minimum academic qualification required under the Scheme of service Rules for participating in process of selection impugned appears to be Senior Secondary (Varistth Upadhyaya) and the text books on which reliance has been placed by petitioners are of subjects duly approved by the Board of Secondary Education and by an agency owned by Government (Rajasthan Hindi Granth Academy) and available for students to study in their regular courses and are of wide circulation among the students while at the same time, text books on which respondent-PSC placed CW 12621/09 //9// reliance (Ann.R/1) is a book being published by a private publisher lastly in 1986 and it is neither prescribed nor by the Government or by the Education Board. As regards expert committee report placed on record (Ann.R/1), suffice it to say that expert committee has not independently applied its mind while examining as to which is the correct answer to Q.20 of Series “A” in regard to which grievance has been raised in instant petitions, which was expected from it but the Committee has only taken note of a single text book of 20 years old Edn (1986), which is not prescribed & approved by the Government in support of its report so as to affirm the key answer (option (2)-Badyani) to Q.20 and in support of answer supplied by paper setter and what has been expressed by expert committee in its report is not its independent opinion, which could have been said to be made after scrutiny of material placed on record, which no reasonable prudent man well versed in a particular subject would regard it as correct. Such disputes raising grievance in regard to "multiple choice objective-type test" was examined by Apex Court in Kanpur University Vs. Samir Gupta (1983(4) SCC 309) and to avoid recurrences of such lapses, the Apex Court laid down certain guidelines to be followed by State Government or the agency CW 12621/09 //10// holding examinations, in para 18 ad infra: “18. If the State Government wants to avoid a recurrence of such lapses, it should compile under its own auspices a text-book which should be prescribed for students desirous of appearing for the combined Pre-Medical Test. Education has more than its fair share of politics, which is the bane of our Universities. Numerous problems are bound to arise in the compilation of such a text-book for, various applicants will come forward for doing the job and forces and counter - forces will wage a battle on the question as to who should be commissioned to do the work. If the State can succeed in overcoming those difficulties, the argument will not be open to the students that the answer contained in the text – book which is prescribed for the test is not the correct answer. Secondly, a system should be devised by the State Government for moderating the key-answers furnished by the paper setters. Thirdly, if English questions have to be translated into Hindi, it is not enough to appoint an expert in the Hindi language as a translator. The translator must know the meaning of the scientific terminology and the art of translation. Fourthly, in a system of 'Multiple Choice Objective – type test', care must be taken to see that questions having an ambig- uous import are not set in the papers. That kind of system of CW 12621/09 //11// examination involves merely the tick -marking of the correct answer. It leaves no scope for reasoning or argument. The answer is 'yes' or 'no'. That is why the questions have to be clear and unequivocal. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it.” What has been considered in Kanpur University Vs. Samir Gupta (supra) has been further taken note of in Manish Ujawal Vs. Maharishi Dayanand Saraswati University (2005 (13) SCC 744) while holding that for the answer key being palpably & demonstrably erroneous, the applicant cannot be made to suffer and at the same time, since the Courts are slow in interfering with educational maters, it casts higher responsibilities on an agency holding such examinations. It was in that context, the Apex Court observed : “10. ..."For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution CW 12621/09 //12// is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case." In the light of what has been observed (supra), if the answer attempted by petitioners appears to be correct duly supported by text books prescribed by Education Board & approved by the Government, it would be unfair to penalise them by not awarding them proper marks for not giving an answer which accords with such wrong key CW 12621/09 //13// answer. Thus, main consideration to be kept in mind is that the merit should not be made causality at the cost of an error being committed by recruiting agency or paper setter and it is expected from respondents that interest of the applicant having participated has to be adequately safeguarded. Government Counsel has placed reliance upon decision of Apex Court in Subhash Chandra Verma Vs. State of Bihar (1995 (Supp (1) SCC 325), which has no application in the facts of instant case for the reason that it was a case where examination was of objective type and key answers was supplied by paper setter and evaluation of answer sheets was made by the staff of PSC having no knowledge of the subject, questioned arose that candidate was put to any disadvantage especially while there was no negative marking, while it is not a question for consideration in instant case. Government Counsel further relied upon the decision of Larger Bench of this Court in Lalit Mohan Sharma Vs. RPSC (Reference in CWP- 1042/2005 & cognate cases, decided vide judgment dt.18/11/2005), where question arose for adjudication was ad infra: "Where any defect or ambiguity in a key answer of a question in the examination is shown, would it be just and proper to exclude suspect question from the paper and not to CW 12621/09 //14// assign any marks to such question? The Full Bench decision (supra) is also of no assistance for the reason that it was a case where the Court placed reliance on the report of expert committee constituted by Court and in its expert opinion it was observed that the key answer having been taken note of, has been thoroughly examined on getting support of various books approved by the Board of Secondary Education Rajasthan, Ajmer and accordingly observed that the answers given in the key are correct and the questions are framed properly and are not vague. However, in the instant case, there is no opinion expressed by expert committee that it has considered question on getting support of text books of the subject which were duly approved and prescribed by the Board of Secondary Education, Rajasthan or text book having been taken note of has got any authenticity or recognition by the State or agency owned by State Government - in the absence whereof, larger Bench decision has no application in the instant case. In the opinion of this Court, contention advanced by respondents stands falsified by acknowledged test-books having been commonly read over by students in the State and approved by Board of Secondary Education, Rajasthan, Ajmer which leaves no room for doubt that the answer given by CW 12621/09 //15// petitioners to Q.20 of Series A & corresponding questions of other Series is correct and the key answer supplied by paper setter adopted by respondent-PSC is incorrect. Consequently, writ petitions are hereby allowed. Respondents are directed to treat option (3) (Abdul Fazal) to Q.20 of Series A & its corresponding Questions of other series as correct answer thereto and accordingly such of petitioners and applicants who have not approached this Court but attempted option (3) (Abdul Fazal) to Q.20 of Series A & its corresponding Questions of other series as their answer thereto, their result be revised and such of applicants including petitioners whose names ultimately find place in select list which is supposed to be revised as a consequence of directions (supra), may be considered for appointment for the post of Teacher Gr.III pursuant to advertisement dt.20/06/2008. Compliance be made within two months. No costs. (Ajay Rastogi), J. K.Khatri/p15/ 12621CW2009Rsr17AugQ20.doc