HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD WRIT PETITION NOS. 9627, 785, 9628, 9629, 9630, 9631, 9632, 9633, 9634, 9635, 9636, 9637, 9638, 9639, 9714, 9715, 9760, 9768, AND 10172 OF 2010 W.P.No. 9627 of 2010 Between: The District Educational Officer, Nizamabad District and three others ..... PETITIONERS AND Shivaji, Unemployee R/o H.No. 3-4-215, Ward No. 30, D.V. Gallu, Bodhan, Nizamabad District and one another .....RESPONDENTS W.P.No. 785 of 2010 Between: The Commissioner and Director of School Education, Andhra Pradesh, Hyderabad ..... PETITIONER AND Vissarnsetti Nanchariah, Unemployee and one another .....RESPONDENTS COMMON ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) Since all these Writ Petitions are connected and interlinked they are taken up together and being disposed of by this common order. Even though no notices have been ordered to the respondents in all these Writ Petitions their rights will not be affected by this order. Aggrieved by the common order passed by the Tribunal directing the authorities to add ½ mark to each question pertaining to question Nos. 62 and 128 to all the candidates who have appeared for selection to the post of Physical Education Teacher in pursuance to the Notification issued by DSC, 2008 as the key supplied by the authorities with regard to question Nos. 62, 128 and 198 in Booklet-D is held as invalid key, the Government preferred all these Writ Petitions. Brief facts of the case are that applicants have answered all 200 questions and the authorities released key for the questions in the examination for post of Physical Education Teacher and also invited objections, if any, from the candidates. It is stated that the applicants after comparing the answers given in the key with their answers written in the test found certain glaring mistakes, and incorrect answers for the questions and immediately they represented the matter to the authorities through internet. But the authorities released the final key without correcting the mistakes and have shown incorrect answers for the questions given in the test for the post of Physical Education Teacher. Therefore, the applicants and others who wrote the correct answers were not given marks to those questions, which were pointed by them as incorrect answers in the key. It is stated that had the authorities corrected the mistakes, the applicants and similarly situated candidates would have secured more marks. Therefore, the applicants have challenged the key supplied by the respondent- Department to host of questions contained in Booklets-A, B, C and D. When the matter came up for admission, the Department submitted that the disputed key answers were referred to State Council of Education and Research Training (SCERT). The SCERT after examining the questions have placed the material justifying their action and contended that the key supplied by the department is correct and it does not require any corrections. The Tribunal has confined its order only to three questions viz., question Nos. 62, 128 and 198 in Booklet –D and held as invalid key and directed the authorities to add ½ mark to each question pertaining to question Nos. 62 and 128 to all the candidates who have appeared for selection to the post of Physical Education Teacher in pursuance to the Notification issued by DSC and with regard to question No. 198 in Booklet-D the respondents are directed to award ½ mark to such of the candidates who have chosen option as ‘4’ i.e. answer is ‘5’ and recast the merit list and consider the claim of the applicants if they come within the zone of consideration according to merit list. The three questions which were examined by the Tribunal read as under: “Question No. 62 in Booklet-D 62. The meaning of the Greek term “Kathos” is : (1) Strength (2) Beauty (3) Exercise (4) Wrestling Question No. 128 in Booklet-D 128. Generally the whistle should be used to (1) Start the activity (2) Stop the activity (3) Control the activity (4) Regulate the activity Question No. 198 in Booklet D 198. During penalty corner in Hockey, the number of defensive players allowed on end line: (1) 6 (2) 7 (3) 4 (4) 5” The learned Government Pleader for Services I contended that the Tribunal ought not to have interfered with the key furnished by the respondent since experts were constituted and they have prepared the key, therefore, the Tribunal has committed jurisdictional error. He also contended that the Tribunal ought not to have directed the respondents to add ½ mark to each question pertaining to question Nos. 62 and 128 to all the candidates and to award ½ mark to such of the candidates who have chosen option as ‘4’ i.e., answer is ‘5’ and re-cast the merit list with regard to question No. 198 in Booklet-D. He further contended that the Tribunal ought to have confined the relief only to the petitioners but instead directed to add marks to all the candidates who have appeared for selection to the post of Physical Education Teacher in pursuance to the Notification issued by DSC, 2008 and thus exceeded its limit. The learned Government Pleader has relied upon the judgment of the Supreme Court reported in G. NALINI VS. THE DIRECTION OF MEDICAL EDUCATION GOVERNMENT OF ANDHRA PRADEH, HYDERABAD AND OTHERS [1], wherein the Supreme Court at paragraphs 20 and 21 held as under: “20. In view of our findings that the key answers to questions 8 and 93 are demonstrably wrong, such of petitioners who are denied marks for questions Nos. 8 and 93 are entitled to the addition of the marks two, one or nil, as the case may be, in case it is found that they are denied marks for both these questions or one of the questions alone or are already awarded marks for both the questions. 21. Therefore, the Director of Medical Education is directed to add marks accordingly to such of those petitioners, who are entitled to, and fix their rank in the merit list and admit them into the Medical Course in case they are entitled for admission in accordance with their ranking in the altered merit list within one month from today.” The learned Government Pleader also drawn our attention to the judgment of the Supreme Court reported in KANPUR UNIVERSITY VS. SAMIR GUPTA[2] , wherein the Supreme Court at paragraphs 16, 17, 20 and 22 held as under: “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 they 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 rationalization. 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 text-books, which are commonly read by students in UP. Those text-books 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 UP. 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 text-books. Those text-books 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 penalize 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. 20. Twenty-seven students in all were concerned with these proceedings, out of whom 8 were admitted to the BDS course, 3 were admitted to the MBBS course lat year itself in place of the students who dropped out and 5 have succeeded in getting admission this year. Omitting 8 of the respondents who have been already admitted to the MBBS course, the remaining 19 shall have to be given admission as directed by the High Court. If the key answer was not wrong as it has turned out to be, they would have succeeded in getting admission. In view of the findings of the High Court, the question naturally arose as to how the marks were to be allotted to the respondents for the three questions answered by them and which were wrongly assessed by the University. The High Court has held that the respondents would be entitled to be given 3 marks for each of the questions correctly ticked by them, and in addition they would be entitled to 1 mark for those questions, since 1 mark was deducted from their total for each of the questions wrongly answered by them. Putting it briefly, such of the respondents as are found to have attempted the three questions or any of them would be entitled to an addition of 4 marks per question. If the answer-books are reassessed in accordance with this formula, the respondents would be entitled to be admitted to the MBBS course, about which there is no dispute. Accordingly, we confirm the directions given by the High Court in regard to the reassessment of the particular questions and the admission of the respondents to the MBBS course. 22. We understand that some petitions are pending in the High Court on these very points. Those petitions will be disposed of by the High Court in the light of this judgment, provided that the petitioners therein make out a case for interference as the students in these appeals have done. We, however, direct that no fresh petitions should be entertained by the High Court and, of course, none will be entertained by us hereafter on the questions involved in these appeals arising our of the Test which was held in 1982. The new academic session is due to commence within the next few days and these questions cannot be allowed to be raised in a leisurely fashion so as to disorganize the scheme of fresh admissions.” He also relied on the judgments of the Supreme Court reported in MANISH UJWAL AND OTHRS VS. MAHARISHI DAYANAND SARASWATI UNIVRSITY AND OTHERS[3], GURU NANAK DEV UNIVERSITY VS. SAUMIL GARG AND OTHERS[4], N. LOKANANDHAM VS. CHAIRMAN, TELECOM COMMISSON AND OTHERS[5] and SECY., W.B. COUNCIL OF HIGHER SECONDARY EDUCATION VS. AYAN DAS AND OTHERS[6]. We have heard the learned counsel appearing for the applicants and also the learned Government Pleader for Services-I and perused the entire material made available on record. As seen from the record, with regard to Question No. 62 in Booklet-D, the meaning of the Greek term “Kathos” according to Greek Lexicon is ‘as’, ‘like’. But the department justified that Kathos means ‘strength’ on the basis of the following paragraph from Tandon Publications, Ludhiana book entitled “Organisation Administration and Recreation in Physical Education”: “5. Calisthenics: Calisthenics refer to those group activities which involve free hand exercises either done to the rhythm of a drum or without it. The word ‘calisthenics’ is of Greek origin and consists of two words- ‘Kallos’ and ‘Stheno’. “Kallos’ means beauty and ‘Stheno’ means strength. On the whole, Calisthenics is a group of those activities which held in improving the beauty or grace and strength of body. These are a sort of co-operative affair and their importance in educational institutes is felt due to two reasons. Firstly, they are of immense demonstrative value and secondly, their organization does not need heavy expenditures. In fact, they are cheapest form of exercises requiring no equipment and no apparatus. Without any cost, these activities play a heroic role in physical, mental, emotional and intellectual development of the students. Calisthenics are very good exercises in developing speed of movement; flexibility so a to allow wider range of movements at joints; endurance and strength in body and serves as a basis for development of skills requiring a lot of bodily coordination and stamina. It will not be exaggeration to say that skill-development is impossible without Calisthenics.” Except this, no other material was placed before the Tribunal or before this Court to support the stand taken by the authorities herein. The word Kallos means ‘beauty’ and ‘Stheno’ means “Strength”. Therefore, to question No. 62 in Booklet-D the options to give answers are totally wrong. Coming to Question No. 128 is concerned, the Tribunal observed as under: “The key published by the respondents after DSC, 2006 examination for ‘B’ series shows that the answer to question NO. 92 to be “*” which indicates that none of the options shown as answer to the question is correct and in view of this, ½ marks was awarded to all those candidates who appeared for the examination. The very same question is asked as question No. 128 in Booklet-D in DSC, 2008 as extracted supra. The respondents have provided key for Booklet-D for question No. 128 as option No. 2. The option given in DSC, 2006 as well as DSC, 2008 are one and the same. The method adopted in DSC, 2006 ought to have been adopted in the present DSC, which has not been done whereby the applicants have been put to loss of ½ mark.” But the authorities justified the key answer for DSC, 2008 on the basis of book titled “ Methods in Physical Education”, wherein it is stated at page.58 as follows: “The use of Whistle. Additional aid is given through the use of whistle. Some teacher use the whistle too much but some use it to save their breath. Generally the whistle should be used to stop the activity instead of starting it” The paper setter ought not have set the said question, as the books say ‘generally’, whistle is used to stop the activity. That means whistle is being used for all purposes, probably the same reason led the examiners in the year 2006 to treat it as ‘none of the above’. In fact, ‘none of the above’ was not given as an option but, however marks were given to all the candidates. Petitioners herein instead of doing so, have made an attempt to justify their action. Therefore, the Tribunal rightly finds fault with this question also. Coming to question No. 198 in Booklet-D, according to the key the answer is ‘6’ and according to the applicants the answer is ‘5’. ‘6’ is given as option No. 1 and ‘5’ is given as option No. 4. The authorities relied upon the book titled, ‘OFFICIATING AND COACHING” by Tandon publications, Ludhiana, wherein Rule 16 reads as under: “Rule 16 Corner (a) A player of the attacking team shall have a free hit from a shot on the defender’s goal line, or on the side line, within three yards of the corner flag post near to the point where the ball crossed the goal line. (b) At the time when the hit is taken, not more than six of the defending team shall be outside the playfield and shall have both feet and sticks beyond their own goal-line. The rest of the defending team players shall stand beyond the center line until the hit has been taken. The attacking team, except the player taking the hit, shall be in the play- field and have both feet and sticks outside the circle.” But the applicants have relied upon the rules of Hockey framed by the International Hockey Federation for the year 2007-2008 and 2009, wherein rule 13.3 (f) reads as under: “f. not more than five defenders, including the goalkeeper or player with goalkeeping privileges if there is one, must be positioned behind the back-line with their sticks, hands and feet not touching the ground inside the field.” As per the rules of Hockey framed by International Hockey Federation, the answer must be ‘5’ including the goalkeeper. The authorities have relied upon a book published by Tandon Publications, Ludhiana titled, “OFFICIATING AND COACHING’. With regard to this question, the Tribunal at paragraph 25 observed as under: “It is not known in which year that book was published and they still justify that answer is ‘6’, that is option No. 1. This justification by the respondents on the fact of it is wholly incorrect. The question posed by the respondents is one involving rules in the game of Hockey. When rules specifically state not more than five defenders including the goal keeper, necessarily the answer should be ‘5’ which is option no. 4. Therefore, the action of the respondents in not considering the objection of the applicants is not found favour with.” In view of the above, the Tribunal rightly directed that the key supplied by the respondents therein with regard to question Nos. 62, 128 and 198 in Booklet-D is held as invalid and directed to add ½ mark to each question pertaining to question Nos. 62 and 128 to all the candidates who have appeared for selection to the post of Physical Education Teacher in pursuance to the Notification issued by DSC, 2008. As far as the direction with regard to question Nos. 62 and 128 is concerned, we are of the opinion that the order of the Tribunal is based on cogent and convincing reasons. But as far as the second part of the direction, with regard to question No. 198 in Booklet-D is concerned, the tribunal directed the authorities to award ½ mark to such of the candidates who have chosen option as ‘4’ i.e., answer is ‘5’ and recast the merit list and consider the claim of the applicants if they come within the zone of consideration according to the merit for appointment to the post of Physical Education Teachers, by exceeding its limit. The learned Government Pleader for Services-I submit that the list of 9,500 candidates has already been finalized and only the list of 2,600 candidates has to be finalized and if the direction given by the Tribunal is implemented the entire process will become a ponderous box and to re-cast the merit list and add ½ mark to each of the candidate will lead to serious repercussion. In view of the above submission, following the judgment of the Supreme Court reported in KANPUR UNIVERSITY VS. SAMIR GUPTA (supra-2), all the Writ Petitions are liable to be dismissed. For ready reference, the relevant portion at paragraph 23 reads as under: 23. We understand that some petitions are pending in the High Court on these very points. Those petitions will be disposed of by the High Court in the light of this judgment, provided that the petitioners therein make out a case for interference as the students in these appeals have done. We, however, direct that no fresh petitions should be entertained by the High Court and, of course, none will be entertained by us hereafter on the questions involved in these appeals arising our of the Test which was held in 1982. The new academic session is due to commence within the next few days and these questions cannot be allowed to be raised in a leisurely fashion so as to disorganize the scheme of fresh admissions.” Accordingly, all the Writ Petitions are dismissed and the order of the Tribunal is only confined to the applicants only and no fresh OA will be entertained. There shall be no order as to costs. _______________________ GHULAM MOHAMMED, J ________________________ G. BHAVANI PRASAD, J DATE: 10.06.2010 KA Note: LR Copy to be marked (Yes) ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] AIR 1984 AP 321 [2] (1983) 4 SCC 309 [3] (2005) 13 SUPREME COURT CASES 744 [4] (2005) 13 SCC 749 [5] (2008) 5 SCC 155 [6] (2007) 8 SCC 242