Jaspreet Dhingra & Ors. vs Delhi Metro Rail Corporation (DMRC) Ltd. & Ors.

ORDER

“(a)

Quash and set aside order dated 20.12.2017 (Annexure A-1).

(b)

A direction to the DMRC to produce the entire records including the answer sheets of the applicants in respect of the Limited Departmental Selection Examination conducted on 29.7.2017 for recruitment to the post of J.E. (Electrical) (Post Code No. JE01). The records should also contain the method of marking the answer sheets adopted by the DMRC for the above Examination and showing the marks initially secured by each applicant and other successful candidates and marks secured by each applicant & other successful candidates after deletion of the erroneously printed question.

(c)

A direction to the DMRC to consider and add the ½ marks admittedly secured by each of the applicants in respect of the deleted question which was correctly answered by the applicants and declare the applicants also as successful in the above LDS Examination held by the DMRC on 29.07.2017 for the post of Junior Engineer (Electrical) (Job Code: JE01), and appoint them on the said post with all consequential benefits.

(d)

Pass any other order or direction as deemed fit in the facts & circumstances of this case in the interest of justice.

(e)

Allow cost in favour of the applicants.”

"100.

Replacing a 400 W HPMV with 250 V HPSV lamp in street lighting operate for 4000 Hours per annum will result in annual energy savings of:

(a)

600 kWH

(b)

300 kWH

(c)

150 kWH

(d)

1000 kWH"

FOR PAPER-I

(a) Before Examination

(b) After Examination (Disputed Qn. of Paper-I deleted)

FOR PAPER-II (No change)

Minimum Qualifying Marks (Paper-I & II) (No Change)

4.

Turning to question No. 100 in the Zoology paper (with which only the appellant Kumari Sunita Khare is concerned) that question reads:

100.

A scout bee finding a food source communicates to the other worker bees the location of the food source.-

(1)

Cannot communicate the direction of food source?

(2)

Can communicate the direction of food source through its round dance?

(3)

Can communicate the direction of food source through its tail-wagging dance?

(4)

Can communicate the direction of food source through its round dance as well as tail-wagging dance?

The 'key-answer' supplied by the paper-setter was alternative No. 3 while according to the appellant alternative No. 4 was the correct answer. In 'Biological Science' by William H. Gregory and Edward H. Goldman while dealing with the 'bee language' on page 391 the following passage occurs-

.... A peculiar 'bee dance' is performed by returning scouts. If the food is close, a round dance is performed. If the food is farther than 100 yards, a special tail-wagging dance is staged. The direction of the food is also indicated.

In the book 'Special Organization' on honey-bees by Dr. V. Freser at page 42 the author has, while dealing with the 'dance language' given further refinement thus:

when the forage is located within 28 meters of the colony, on its return home, the successful forager performs a 'tail-wagging dance' (sic 'round dance').

when the forage is located 100 meters or more away from nest a successful forager performs a 'tail-wagging dance'. From the above passages of the learned authors one thing is very clear that the range plays a very important part in deciding whether the scout bee or the successful forager on return home would perform a round dance or a tail-wagging dance and according to Gregory and Goldman if the food is close-by a round dance is performed and if the food is farther than 100 yards a tail-wagging dance is performed whereas according to the refinement given by Dr. Freser if the food is located within 28 meters a round dance would be performed but if it is located at the distance of 100 meters or more tail-wagging dance is performed. Now the question set by the paper-setter makes no reference whatsoever to any range with reference to which the candidate is called upon to give his answer to the question and in the absence of any reference to the range according to the aforesaid passages alternative No. 4 would be the correct answer and not alternative No. 3 which had been supplied as 'key-answer' by the paper-setter. In our view it is a case of tricky question being set by the paper- setter where one of the essential aspects namely, the range has not been indicated anywhere in the question. Placed in that situation the appellant Kumari Sunita Khare was right when she ticked alternative No. 4 as being the correct answer to the question set.

5.

In view of what is stated above only one appeal namely, Civil Appeal No. 4119/83 of Km. Sunita Khare deserves to be allowed. We allow it accordingly with costs and direct the respondents to give her admission to the MBBS course in the 1983 session. The other three appeals are dismissed but there will be no orders as to costs.”

“8.

Now we have received reports from CBSE and Delhi University. Copies of the reports were supplied to counsel for the parties. We have heard learned counsel for the students representing both the interests above referred as also learned counsel for the appellant University. The reports now received show that there is unanimity between CBSE and University of Delhi in regard to the key answers of eight questions. They are as under:

Question No. Key answer by CBSE Key answer by University of Delhi 36 A A 49 A A 109 B B 110 A A 128 C C 165 D D 167 D D 168 A A

The key answers of the aforesaid eight questions provided by the appellant University are incorrect. In regard to two questions i.e. Questions 41 and 152, there is difference of opinion between CBSE and the University of Delhi as to the correct key answer. The question numbers as referred to CBSE and the University of Delhi and in this order are with reference to the Question Paper Code A.

9.

Insofar as the aforesaid eight questions are concerned, namely, Questions 36, 49, 109, 110, 128, 165, 167 and 168, there can be no doubt that the key answers provided by the appellant University are demonstrably erroneous. Insofar as key answers to Questions 41 and 152 are concerned, benefit of doubt, as per law well settled by this Court, has to go in favour of the examining body.

10.

Having regard to the facts and circumstances of the case, in particular, the stage of the admissions and the fact that the medical courses are supposed to commence on 1st August every year and the last date of admissions for stray seats under all circumstances is 30th September, we do not think appropriate that all the 200 questions deserve to be referred for determining as to what are the correct key answers. At this stage, it would also not be appropriate to refer to the opinions given by other professors in these matters as to correctness of key answers.

11.

What is paramount is the interest of the student community. Merit should not be a casualty. We feel that the interests of the students would be adequately safeguarded if we direct the appellant University to revaluate the answers of the aforesaid eight questions with reference to the key answers provided by CBSE and the University of Delhi which are same and not with reference to the key answers provided by the appellant University.

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.

13.

In view of the aforesaid, we modify the directions contained in the a impugned judgment of the High Court and direct the appellant University to revaluate the answer-books in terms of the aforesaid directions and, on that basis, prepare the ranking of the students, within two days.”

“2.

That the online examination was conducted on 29-07-2017 and provisional list of candidates for empanelment was declared vide Office order 0446 of 2017 dated 05-09-2017. In Paper-1 of JE/Electrical, one question was found incorrect, the issue was referred to the HOD (GM/Electrical) of the concerned department who confirmed it and the wrong question was therefore not reckoned in Paper-I. It is also submitted that in English version of question paper the error was pointed out and it was mentioned in instruction that English version shall be treated valid. Therefore, the Paper-1 (of JE/Electrical) was evaluated for 49.50 marks instead of 50 marks and the marks obtained by the candidates for the post of JE/Electrical were extrapolated to arrive at 50.

3.

That after ignoring the wrong question and extrapolating the marks, the applicants herein scored marks ranging from 41.7 to 41.8 in paper-I & II out of a total of 70 marks. As the passing marks for general category candidate was 42, the applicants' name did not appear in the list of selected candidates for the General category.”

“The matter was heard at length.

Counsel for the applicant states that this is the second round of litigation. Earlier the applicants had approached in the first round which was disposed of with a direction to the respondents to decide their representations.

The facts in brief are that the applicants are working in the DMRC (Delhi Metro Rail Corporation) and were aspirants for promotion to the post of Junior Engineer (Civil, Mechanical, Electrical and quantity Surveying Contracts). They had applied for promotion pursuant to the notice dated 30.12.2016, read with 16.05.2017 for the limited departmental selection to be conducted by them. The applicants had appeared in both the papers and had secured minimum qualifying marks i.e. 42 out of 70.

DMRC received representations from other candidates concerning question No. 100 in Paper-I owing to some small error stating that they could not understand the question. The applicants, in spite of the small error in the question, answered the question correctly and even granted marks for the same. On receipt of the representations, the respondents took a decision to withdraw the said question and thereby deduct marks for the said question. Further, the decision to extrapolate the marks for other candidates was also taken. In this exercise, the applicants who were at 42 and were meeting the minimum qualifying marks were brought down to 41.7 and as such missed the qualifying marks and could not get promoted.

Learned counsel for the applicant has relied upon the decisions of the Hon’ble Supreme Court to say that the method adopted by them is incorrect and bad in law given the law laid down in Abhijit Sen and Ors. Vs. State of U.P. and Ors. Civil Appeal No. 4116 to 4119 of 1983 and also in the case of Guru Nanak Dev University vs. Saumil Garg and Ors. Civil Appeal No. 5276/2005

Counsel for the applicant therefore submits that this is a fit case where the relief should be granted to them.

Learned counsel for the respondents refutes the arguments of the learned counsel for the applicant and stated that the policy decision was taken and it was decided to delete the erroneous question and extrapolation was done for all candidates. He submits that due to the extrapolation, the value of all the questions answered correctly in Paper-I became 0.50505 for every question. As such, the applicants could only achieve 41.7 after deduction of 0.5 marks and could not meet the cut off.

During the arguments, various methods of standardization and extrapolation were thrashed out and were discussed especially given the law as laid down by the Hon’ble Supreme Court.

We also note that similar situations arise regularly before the DSSSB and the Staff Selection Commission which are the mega recruiting agencies in our country. We have seen that both these agencies on such questions or vague questions, take a decision to grant the benefit of the same to every candidate instead of withdrawing from the candidates who have answered correctly.

Herein the DMRC who is perhaps not a regular recruiting agency, in a limited departmental examination has decided withdrawn 0.5 marks from the candidates who have answered that question correctly.

In the present litigation, we observe that if the benefit of 0.5 marks was given to all the candidates whether they had attempted correctly as in the instant case or attempted wrongly or not attempted at all, the present applicants who had got 42 marks could have made it to the merit list and further, this would have been a correct course to be adopted as many vacancies are available or are still lying vacant.

Learned counsel for the applicant submits that 84 vacancies were advertised and only 47 could be filled up by the respondents. As such, there is enough scope to adjust the three candidates and further requirements of DMRC would also be met to a certain extent. Instead of reprimanding the applicants for answering a question correctly by deducting the marks, they should consider the case of the applicants and promote them also.

In view of the same, the respondents are directed to seek further instructions whether the practice of DSSSB and SSC can be adopted herein or not. List the matter as part heard on 23.09.2024.”