The Teachers Recruitment Board, Government of Tamil Nadu (in short "TRB"), issued an advertisement under Advertisement No.02/2013, dated 09.05.2013, inviting applications for direct recruitment to the vacancies for the year 2012-2013 in the post of Post Graduate Assistants/Physical Education Directors Grade-I in the Tamil Nadu Higher Secondary Educational Service. According to the prospectus, the scheme of examination is that there will be a written examination, consisting of a single paper of 3 hours duration with 150 MCQs, each question carrying one mark. Marks to be allotted to the main subject, educational methodology and general knowledge are as follows: Main Subject : 110 Marks Educational Methodology: 30 marks General Knowledge : 10 Marks Based on the marks secured in the said examination, candidates shall be ranked and thereafter, based on the cut-off marks to be fixed, the candidates shall be shortlisted and such shortlisted candidates will be called for certificate verification, followed by issuing of appointment orders.= In the result, the writ petitions are disposed of in the following terms: (i)The written competitive examination for recruitment of Post Graduate Assistants in Tamil subject held on 21.07.2013 is hereby set aside. (ii)The official respondents, more particularly the Teachers Recruitment Board, is directed to conduct fresh examination as early as possible, in any event, not later than six weeks from the date of receipt of a copy of this order. (iii)For such a fresh examination, fresh hall tickets need not be issued to the candidates. Old Hall Tickets downloaded from the Teachers Recruitment Board Website can be considered as sufficient. (iv)There shall be no fresh calling for applications. No costs. Connected miscellaneous petitions are quashed.

published in http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=63216

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01/10/2013

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Writ Petition (MD)No.13267 of 2013
and
Writ Petition (MD)No.14940  of 2013
and
M.P.(MD)No.1 of 2013 in WP(MD)No.13267 of 2013
and
M.P.(MD)No.1 & 3 of 2013 in WP(MD)No. 14940 of 2013


J.Antony Clara, W/o.Michael Raj ... Petitioner
in WP 13267/2013
S.Vijayalakshmi, D/o.V.Subramanian ... Petitioner
in WP 14940/2013

Vs

1.The State of Tamilnadu,
  rep.by its Principal Secretary,
  Department of School Education,
  Fort St.George, Chennai-9.

2.The Director of School Education,
  College Road, Chennai-6.

3.The Secretary,
  Teachers Recruitment Board,
  E.V.K.Sampath Maligai,
  DPI Compound, College Road,
  Chennai-6.

4.R.Santhakumar
5.Dr.N.Maharajan
6.Anbuthavamani
7.T.Balamurugan ... Respondents in
both the Wps

(Respondents 4 to 7 were impleaded as per
Order dated 24.09.2013 made in MP(MD)No.2/2013)in
WP(MD)Nos.13267 & 14940 of 2013)


Writ petitions under Article 226 of the Constitution of India
praying for issuance of a writ of mandamus, directing the respondent No.3 to
provide full grace marks for the question Nos.22, 35, 38, 45, 51, 52, 58, 70,
75, 76, 89, 91, 92, 96, 97, 109, 113, 115, 117, 128, 145 of the Booklet Series-B
of written competitive examination for Direct Recruitment of Post Graduate
Assistants (2012-2013) for the subject Tamil and consequently to consider the
petitioners for recruitment to the post of Post Graaduate Assistants (Tamil)
within a time frame.
 
!For Petitioner in  ... Mr.T.Lajapathi Roy
WP 13267/2013

For Petitioner      ... Mr.J.Jeyakumaran
in WP 14940/2013

^For Respondents    ... Mr.AL.Somayaji,
1 to 3 in both        Advocate General, and
the WPs        Mr.K.Chellapanian,
Addl.Advocate General,
                        assisted by
Mr.V.R.Shanmuganathan,
Spl.Govt.Pleader.

For Respondents     ... Mr.G.Thalaimutharasu
4 to 7 in both the WPs  Mr.Isaac Mohanlal,
Amicus Curiae.

:COMMON ORDER

The Teachers Recruitment Board, Government of Tamil Nadu (in short
"TRB"), issued an advertisement under Advertisement No.02/2013, dated
09.05.2013, inviting applications for direct recruitment to the vacancies for
the year 2012-2013 in the post of Post Graduate Assistants/Physical Education
Directors Grade-I in the Tamil Nadu Higher Secondary Educational Service.
According to the prospectus, the scheme of examination is that there will be a
written examination, consisting of a single paper of 3 hours duration with 150
MCQs, each question carrying one mark. Marks to be allotted to the main subject,
educational methodology and general knowledge are as follows:
Main Subject :  110 Marks
Educational Methodology:  30 marks
General Knowledge :   10 Marks
Based on the marks secured in the said examination, candidates shall be ranked
and thereafter, based on the cut-off marks to be fixed, the candidates shall be
shortlisted and such shortlisted candidates will be called for certificate
verification, followed by issuing of appointment orders.

2.The petitioners herein are post-graduates in the subject "Tamil".
They made applications and participated in the written examination held on
21.07.2013.  As per the arrangement, question papers were to be printed in four
series, namely 'A' Series, 'B' Series, 'C' Series and 'D' Series.  It is only
the order of questions were to be changed in these series, though the questions
are one and the same.  The petitioners were supplied with 'B' Series question
paper in the examination hall.


3.According to the petitioners, out of the 150 questions, many
questions were erroneous.  Though in the writ petition they have mentioned that
about 21 questions were erroneous, during the course of argument, the learned
counsel for the petitioners pointed out that as many as 47 questions were wrong
questions, incapable of understanding and answering.  Since this Court was prima
facie satisfied with the said submission, this Court granted interim injunction
restraining TRB from publishing the results of the examination pertaining to
"Tamil" subject alone.

4.The learned Government Advocate took notice and the learned
Additional Advocate General later appeared in the case for the official
respondents.
5.A detailed counter affidavit, dated 16.09.2013, was filed by the
3rd respondent.  In the said counter, inter alia, it is stated that in respect
of the question papers prepared under 'A', 'C' and 'D' Series, there were no
errors.  It is further stated that insofar as 'B' Series question paper is
concerned, there were spelling mistakes which occurred at the end of the
printing of question papers.  It is further stated that TRB had handed over the
manuscript copies of the question papers set by TRB to a confidential printer,
through the Director of Government Examinations.  Thereafter, there was no
occasion for TRB to verify whether the question papers had been printed free
from any error or not.  TRB had no occasion to open the question papers before
they were supplied in the examination centres to the candidates.  Proof reading
and ensuring accuracy in printing, according to the respondents, was the sole
responsibility of the confidential printers who had been authorised by the
Reserve Bank of India for such confidential works and who had been selected by
the Director of Government Examinations, after careful scrutiny.  Thus,
according to the counter, it was the duty of the confidential printer to ensure
the correctness and accuracy of the proof as per the manuscript provided to
them.

6.It is further contended in the  counter that there were number of
complaints received from the candidates in respect of wrong questions  found in
'B' Series question papers.  Thereafter, TRB formed an Expert Committee
consisting of three members who are Associate/Assistant Professors in Government
Arts and Science Colleges to examine and ascertain the said errors as pointed
out by the candidates.  It is further stated that the members of Expert
Committee unanimously decided and offered their considered opinion that these
are only errors in spelling but meaning and content are in no way affected and
it also does not affect choosing right option by the candidates.  In paragraph 7
of the counter, it is further stated that based on the Expert Committee Report,
it is clear that question Nos.22, 35, 38, 45, 51, 52, 58, 70, 75, 76, 89, 91,
92, 96, 97, 109, 113, 115, 117, 128 and 145 in 'B' Series question paper were
only of typographical printing errors.  In the counter, it is further stated
that since errors had not materially affected the understanding of the
candidates, there is no need for either deleting or awarding marks to the said
questions or conducting re-examination for Tamil subject alone.  It is also
stated in the counter, if re-examination is conducted, the candidates who are
being successful in getting higher marks will be affected.  Thus, according to
the counter,  TRB may be permitted to go ahead with the release of the results
and further process of selection.

7.During the hearing on 16.09.2013, after going through the counter,
this Court felt that the presence of the Chairman, TRB, might be necessary to
get further clarification regarding the above erroneous questions.  Accordingly,
on 18.09.2013, the Chairman of TRB appeared before this Court.  The Member-
Secretary of TRB was also present.

8.During the course of hearing on 18.09.2013, the questions about
which disputes were raised by the petitioners were closely scrutinized by this
Court.  It was found that more than 40 questions were erroneous.  The Chairman,
TRB, who was present in the Court, along with his officials, tacitly admitted
before this Court that out of 150 questions, 40 questions are erroneous.  The
learned Additional Advocate General, on instructions from the Chairman, TRB,
submitted that TRB was prepared to evaluate 110 questions, thereby deleting rest
of the 40 erroneous questions.  It was also submitted that the total  number of
marks will be reduced from 150 to 110 and        thus TRB would re-value the
answer sheets of the        candidates for 110 right questions alone.  It was
opposed by the learned counsel for the petitioners on               the ground
that as per the views taken by the Hon'ble

Supreme Court in similar situations, re-examination is the only possible course
to be adopted.  The learned Additional Advocate General submitted that the
Chairman would discuss the matter with the Government and come-up with a
statement as to whether TRB could conduct fresh examination for all the
candidates who have appeared in the Tamil subject or not.  This Court also
expressed its prima facie view that since almost 1/3rd of the questions are
erroneous, it would be in the interest of justice to consider to hold fresh
examination which would only minimise the hardship to the parties.
9.Thereafter, the Chairman submitted in writing the decision of TRB
on the questions under dispute in these writ petitions as erroneous.  In the
said report, it is stated as follows.

"Table : 1 (B series Tamil Question Paper)

Teachers Recruitment Board decision on the questions pointed out by the writ
petitioner Ms.Vijayalakshmi as mistakes.

Sl.N Question  Whether    Whether        Board decision
 o.    No.     printing   printing
               error in   error in
               Question    right
                           option
1.   22       Yes        Yes        May be deleted
2.   35       Yes        No         May be deleted
3.   38       No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option D
4.   45       No         Yes        May be deleted
5.   51       No         Yes        May be deleted
6.   52       No         Yes        May be deleted
7.   58       Yes        No         May be deleted
8.   70       Yes        Yes        May be deleted
9.   75       Yes        No         May be deleted
10.  76       Yes        No         May be deleted
11.  89       Yes        No         May be deleted
12.  91       Yes        No         May be deleted
13.  92       Yes        Yes        May be deleted
14.  96       Yes        No         May be deleted
15.  97       Yes        No         May be deleted
16.  109      Yes        No         May be deleted
17.  113      Yes        No         Question need not be
                                    deleted as there is no
                                    error in the concept.
18.  115      Yes        No         May be deleted
19.  117      No         Yes        May be deleted
20.  128      No         No, but    Already deleted in the
                         all given  Tentative Key.
                         options
                         are wrong
21.  145      Yes        No         May be deleted


Table : 2 (B series Tamil Question Paper)

Teachers Recruitment Board decision on the questions has printing errors.


Sl.N Question  Whether    Whether        Board decision
 o.    No.     printing   printing
               error in   error in
               Question    right
                           option
1.   10       No         Yes        Already deleted in the
                                    Tentative Key
2.   17       No         No         May be deleted
3.   19       Yes        No         May be deleted
4.   22       Yes        Yes        May be deleted
5.   26       Yes        No         May be deleted
6.   35       Yes        No         May be deleted
7.   36       Yes        No         May be deleted
8.   45       No         Yes        May be deleted
9.   46       No         Yes        May be deleted
10.  47       Yes        No         May be deleted
11.  51       No         Yes        May be deleted
12.  52       No         Yes        May be deleted
13.  53       Yes        No         May be deleted
14.  58       Yes        No         May be deleted
15.  62       No         Yes        May be deleted
16.  70       Yes        Yes        May be deleted
17.  75       Yes        No         May be deleted
18.  76       Yes        No         May be deleted
19.  77       Yes        No         May be deleted
20.  83       Yes        Yes        May be deleted
21.  85       Yes        No         May be deleted
22.  87       No         Yes        May be deleted
23.  88       Yes        No         May be deleted
24.  89       Yes        No         May be deleted
25.  91       Yes        No         May be deleted
26   92       Yes        Yes        May be deleted
27   93       No         Yes        May be deleted
28   96       Yes        No         May be deleted
29   97       Yes        No         May be deleted
30   101      Yes        No         May be deleted
31   102      Yes        No         May be deleted
32   104      No         Yes        May be deleted
33   105      Yes        No         May be deleted
34   109      Yes        No         May be deleted
35   115      Yes        No         May be deleted
36   117      No         Yes        May be deleted
37   137      Yes        No         May be deleted
38   139      No         Yes        May be deleted
39   145      Yes        No         May be deleted
40   148      No         yes        May be deleted


Table : 3 (B series Tamil Question Paper)
Teachers Recruitment Board decision on the questions, which are having printing
error neither in question nor in correct option.

Sl.N Question Whether    Whether    Board decision
o.   No.      printing   printing
              error in   error in
              Question   right
                         option
1.   21       No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option D
2.   25       No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option B
3.   38       No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option D
4.   43       No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option D
5.   48       Yes        No         Question need not be
                                    deleted as there is no
                                    error in the concept
6.   50       Yes        No         Question need not be
                                    deleted as there is no
                                    error in the concept
7.   95       No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option D
8.   113      Yes        No         Question need not be
                                    deleted as there is no
                                    error in the concept
9.   116      No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option D
10.  118      No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option A
11.  131      No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option C
12.  138      Yes        No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option C
13.  144      Yes        No         Question need not be
                                    deleted as there is no
                                    error in the concept
14.  146      No         No         Question need not be
                                    deleted as printing
                                    error is only in the
                                    wrong option B

Question need not be deleted as printing error is only in the wrong option B

10.Subsequently, when the matter came-up for hearing on 24.09.2013,
M.P.(MD)No.2/2013 was filed by four candidates who had participated in the
examination.  According to them, the writ petitions should be dismissed as the
errors have not materially affected the understanding of the candidates who
appeared in the examination.   The said miscellaneous petition was allowed and
the petitioners in the said miscellaneous petition were added as respondents 4
to 7 in the writ petitions as well as in the interlocutory applications, on
24.09.2013.  During the course of hearing, learned Additional Advocate General
appearing for the official respondents submitted that TRB is ready to allot pro-
rata marks to the 110 questions by deleting 40 erroneous questions or to reduce
the total marks to 110 and to value the answer sheets.  Since any decision which
may be taken ultimately in these writ petitions may have a greater impact on the
future of thousands of candidates, I deemed it appropriate to appoint amicus
curiae to assist the Court.  Accordingly, this Court requested Mr.Isaac
Mohanlal, learned counsel, to assist the Court as amicus criae.

11.When the matter again came-up for hearing on 25.09.2013, learned
amicus curiae assisted the Court by bringing to the notice of the Court a number
of judgments wherein the Hon'ble Supreme Court had occasion to deal with similar
situations.  He also submitted that it would be in the interest of justice to
order re-examination for the candidates in Tamil subject.  But the learned
Additional Advocate General submitted that the Board will take a decision in
consultation with the Government as to whether to conduct re-examination for all
the candidates who appeared in the Tamil Subject.  He, accordingly, requested
for an adjournment.  Therefore, the matter was adjourned to 30.09.2013.

12.On 30.09.2013, I heard the learned counsel for the petitioners.
Learned Advocate General Mr.AL.Somayaji appeared for the official respondents
and made his submissions.  I also heard the learned amicus curiae Mr.Isaac
Mohanlal as well as Mr.G.Thalaimutharasu, learned counsel for private
respondents. I have gone through the records carefully.

13.At the outset, I have to state that it is painful to note that in
an examination which would decide the fate of thousands of candidates who have
been competing for getting Government job, TRB has not ensured that the question
paper is free from mistakes so that the candidates could have a common platform,
with equal fair opportunity to compete so as to prove their competence and
merit.  In a competitive examination of this nature, one man's trash is another
man's treasure.  Though, according to the petitioners, around 47 questions in
the Tamil subject in 'B' series question papers are erroneous, TRB has tacitly
admitted before this Cort 40 such questions are  erroneous  and therefore TRB
has decided to delete the 40 erroneous questions to evaluate only rest of the
110 questions.  Though it is submitted by the learned Advocate General that TRB
cannot be held responsible for the said mistakes in the questions, I am not
persuaded by the said submission.  It may be true that in order to ensure
secrecy of the question paper, several steps are to be taken by TRB at various
levels, including at the printing press.  For that matter, it may not be proper
for this Court to give allowance to TRB so as to justify the mistake in 40
questions. The explanation offered by TRB is like a poor man always blaming his
tools.

14.At this juncture, I have to state that this is not the first
occasion that I have come across with such an experience with TRB. In the
Teachers Eligibility Test conducted during the year 2012, when I was sitting in
the Principal Bench at Madras, there were a number of writ petitions filed
challenging the key answers in respect of around 87 questions.  On a deep
analysis, with the help of Experts, I found that key answers for more than 70
questions were wrong.  In the said case in K.R.Shanthi  vs. Secretary to
Government, Education Department, reported in (2012) 7 MLJ 241, I was impelled
to pass certain adverse remarks against TRB irked by the number of questions
carrying wrong key answers.  After the judgment was delivered in the open Court,
the learned Additional Advocate General appeared and assured this Court that TRB
shall ensure that there shall be no such mistakes in future.  Accordingly, he
requested the Court to withdraw the said adverse remarks.  Accordingly, adverse
remarks were withdrawn by this Court.  Despite the said assurance given to this
Court, hardly within one year, in the present case, this Court finds that TRB
has allowed 40 questions to be printed erroneously in 'B' Series question paper
of the Tamil Subject.  This, in my view, is highly deplorable.  On instruction
from the present Chairman of TRB, who has assumed charge very recently, the
learned Additional Advocate General submitted that this kind of errors or
mistakes will not be allowed to occur in future.  I am hopeful that in the
examinations to come, let there be no such mistakes causing so much of hardship
to candidates.

15.Now, having taken note of the admitted position that 40 questions
are erroneous, this Court has to examine the course to be adopted.  This Court
has kept in mind that any course to be adopted by this Court shall be an attempt
to minimise the hardship to be caused to the candidates.  Admittedly, the total
number of candidates who appeared in the Tamil subject examination were about
32000.  Out of these candidates, about 8000 have been supplied with 'B' series
question papers.  The rest of the candidates have not suffered in any manner
because there were no errors in any question in 'A' 'C' and 'D' series question
papers.  Therefore, they had the benefit of answering as against 150 questions.
But, the candidates who were supplied with 'B' series question paper alone have
suffered.

16.The learned Advocate General would submit that despite the errors
in the questions, many candidates have understood the questions and answered
them.  In my considered opinion, there is no justification in the said
submission, as it is the bounden duty of TRB to ensure that there is no mistake
in any question, materially affecting the understanding of the candidates.


17.During the course of the hearing, this Court made every endeavour
to find a course which would  comparatively result in minimum hardship to the
candidates. The learned Advocate General submitted that after deleting the above
40 questions, the rest of the 110 questions would be valued and for every
candidate 40 marks would be given as grace marks as against the 40 questions
deleted and thus, the total number of marks will still be maintained at 150.
This course is not agreeable to this Court, because, this will certainly
materially and drastically affect the results.  This will pave way for
meritorious candidates to sink in the sea of confusion.  This can be illustrated
in the following manner.
There are two candidates who have answered 'A' series question paper. The
first candidate has answered 40 questions, other than the questions which are
now under dispute.  He has also answered all the 40 questions under dispute,
rightly.  Thus, he has secured 80 marks.
The second candidate has similarly answered 50 questions, other than the
questions under dispute.  So far as the 40 questions which are under dispute, he
has not answered correctly.  Thus he has secured only 50 marks.
If by following the process suggested by the learned Advocate General if
40 questions under dispute are omitted, then as per the illustration, the first
candidate will maintain the same 80 marks; whereas the second candidate will now
get 40 grace marks, thus making the total 90.

This illustration will squarely demonstrate as to how a candidate who had
originally secured 50 marks will now rise upto 90 and compete with the candidate
who has secured 80 marks.  Thus, this less meritorious candidate will get
selected and the meritorious candidate will not.

18.If wrong questions are negligible, in my considered opinion, the
above process may not materially affect the outcome, though it will cause
minimum imbalance.  But, here, in this case, almost 1/3rd  of the questions are
wrong and, therefore, if the above method suggested by the learned Advocate
General is followed, it will surely cause prejudice to the meritorious
candidates and therefore this course cannot be followed.

19.The second method suggested by  the learned Advocate General is
that after deleting 40 questions, 40 marks equivalent to the said 40 omitted
questions shall be equally distributed to the remaining questions on pro-rata
basis.  For this purpose, the learned Advocate General placed reliance on the
judgment of the Hon'ble Supreme Court in Vikas Pratap Singh and Others  vs.
State of Chhattisgar and Others in Civil Appeal Nos.5318-5319 of 2013, date
09.07.2013. In that case, before the Hon'ble supreme Court, it was found that 8
questions were incorrect and model answers for valuation of answer scripts to
another 7 questions of the same paper were incorrect.  So far as the wrong
answer key is concerned, there can be no difficulty in correcting errors with
the help of experts and ordering for re-valuation based on the correct key
answers.  In the said judgment before the Hon'ble Supreme Court, so far as 8 key
answers relating to 8 questions, the Hon'ble Supreme Court ordered for
revaluation based on the correct key answers. So far as the incorrect questions
numbering 7 are concerned, the Hon'ble Supreme Court directed for deletion of
such incorrect questions and in the consequence pro-rata distribution of marks
allocated to them.  The learned Advocate General himself very fairly conceded
before this Court that in the said judgment, the Hon'ble Supreme Court relied on
Clause 14 of the Rules therein.  Clause 14 of the Rules reads as follows:
"Clause 14. Wrong (Defective) objective type question, its cancellation
and marks to be allotted in lieu of it.
After the exams, the Chhattisgarh Professional Examination Board (VYAPAM) gets
each question examined by the subject expert. If, upon examination by the
subject experts, the questions are found defective/ wrong, it is rejected.
Questions may be rejected on the following reasons:
i) if the structure of the question is wrong;
ii) out of the options given as answers, if more than one options are correct.
iii) If no option is correct.
iv) If there is difference in Hindi and English translation of any question
because of which different meaning is drawn from both and one correct answer
could not be ascertained.
v) If any other printing mistake is there because of which correct answer is not
ascertainable or more than one option is correct.
On such rejection of question upon the recommendation of Subject Expert
Committee, on such questions the marks would be awarded by the Chhattisgarh
Professional Examination Board (VYAPAM) to the candidates in proportion to their
marks obtained in the particular question paper. Whether the rejected question
has been or not been attempted. The question papers in which the questions have
been rejected, their evaluation procedure would be as follows, if in any
question papers out of 100 questions two questions are rejected and after
evaluation candidate secures 81 marks out of 98 questions then in such case
calculation of marks would be done as (81*100)/100-2= 82.65. On which basis
merit would be determined."

20.It was only relying on the said rule, the Hon'ble Supreme Court
directed deletion of 7 incorrect questions and ordered distribution of pro-rata
marks.   The learned Advocate General would submit that though there is no such
clause for allotment of pro-rata marks, indicated in the prospectus in the
instant case, still, this Court, with a view to do justice to the parties, can,
in its equity jurisdiction, order for such distribution of pro-rata marks.
Regarding this submission, I have difficulty to agree.  Apart from there being
no such rule or clause in the prospectus for allotment of pro-rata marks after
deleting wrong questions, there is yet another distinguishing factor.  In the
case before the Hon'ble Supreme Court, the questions were incorrect in respect
of all the candidates who appeared in the examination.  It is not as if these 7
questions were incorrect only in respect of a section of the candidates, as it
has happened in the instant case.  Apart from that, in that case, the incorrect
questions were negligible in numbers; whereas in the case on hand, the incorrect
questions forms almost 1/3rd of the total number of questions.  As I have
already pointed out, if pro-rata marks are allotted, after deleting the above 40
questions, this will materially affect the candidates who had appeared with 'A'
'C' and 'D' series question papers.  As I have already demonstrated, the
candidates who had answered these 40 questions or some of the questions
correctly will be deprived of the marks for the correct  answers.  Thus, the
candidates who neither answered these questions nor incorrectly answered will be
benefited by getting pro-rata marks.

21.It is needless to point out that in a competitive examination,
always there should not be any discrimination.  The candidates should be
provided with a common platform with equal opportunity with equal advantage and
disadvantage to prove their merit.  The scale should always be equal.  If pro-
rata marks for 40 questions are distributed, as suggested by the learned
Advocate General, many meritorious candidates who have answered these questions
in 'A', 'C' and 'D' series will be materially affected and thus candidates who
have not answered these questions correctly will be benefited by getting marks.
Thus, the non-meritorious candidates may even defeat the meritorious candidates.
Therefore, in my considered opinion, it is not only on the ground of absence of
a clause in the prospectus for granting pro-rata marks but also on the ground
that incorrect question papers were not distributed to all the candidates
uniformly, in my considered view, the said course also will not be an equitable
measure to alleviate hardship to the candidates.
22.The learned Advocate General nextly relied on yet another
judgment of the Hon'ble supreme Court in Pankaj Sharma  vs. State of Jammu and
Kashmir and Others, reported in (2008) 4 SCC 273.  In that case, the Jammu and
Kashmir Public Service Commission, on noticing spelling mistakes, printing
errors, discrepancies, questions having doubtful answers and even wrong answers,
etc. deleted those questions and added those marks pro-rata to the remaining
questions.  That course was challenged before  the High Court.  A learned Single
of the High Court also directed to delete the questions and distribute the marks
pro-rata to the remaining questions.  An appeal made to the Division Bench was
dismissed.  As against the same, the matter was taken to the Hon'ble Supreme
Court.  It was contended before the Hon'ble Supreme Court that on noticing the
above errors, the Service Commission issued necessary instructions to the
Supervisors of the Examination Centres in time and they in-turn announced the
corrections and accordingly the candidates were not affected.  But, the Hon'ble
Supreme Court did not accept the said contention of the Commission.  On facts,
the Hon'ble Supreme Court found that the questions were incorrect and therefore
they were to be omitted.  The Hon'ble Supreme Court found that the approach of
the Commission in deleting the questions as an appropriate remedial measure and
adding pro-rata marks was correct.  The Hon'ble Supreme Court made reference to
the earlier judgment in Kanpur University  vs. Samir Gupta, reported in (1983) 4
SCC 309.  That was a case relating to wrong key answers.  Finally, the Hon'ble
Supreme Court, with a view to avoid further delay, was not inclined to order for
re-examination, instead the Hon'ble Supreme Court confirmed the order of the
learned Single Judge of the High Court directing  deletion of incorrect
questions and adding of pro-rata marks.

23.As I have already pointed out, the said course of deletion of
questions and allotment of pro-rata marks was found appropriate by the Hon'ble
Supreme Court,  because incorrect question papers were supplied to all the
candidates.  The Hon'ble Supreme Court had no occasion to examine a case where a
section of the candidates alone were supplied with such incorrect questions.
Therefore, this judgment cannot be taken as a binding precedent to decide the
issues involved in the present writ petitions.  As I have already pointed out,
the candidates who have written examinations in respect of 'A', 'C' and 'D'
series question papers stand in a different footing than the candidates who have
suffered by the supply of wrong questions under 'B' series.

24.Very recently, the Hon'ble Supreme Court  had an occasion to deal
with wrong key answers in the examination held during the recruitment process in
Rajesh Kumar  and others vs. State of Bihar and others, reported in (2013) 4 SCC
690.  That was also a case where the question paper was set in series like
A,B,C,D as in the instant case.  It was contended before the learned Single
Judge of the High Court that in respect of 'A' series question paper, 45 key
answers out of 100 were wrong.  The learned Single Judge held that the entire
examination was liable to be cancelled and so also the appointments made on the
basis thereof.  As against the same, an appeal was made to a Division Bench.
The Division Bench also concurred with the learned Single Judge that  key
answers for 45 questions were wrong.   The Division modified the order passed by
the learned Single Judge and declared that the entire examination need not be
cancelled, as there was no corrupt motive or mal-practice with regard to other
question papers.  Thus, the Division Bench directed fresh examination in Civil
Engineering paper only, to rectify the defects and to prevent injustice to the
candidates.  This matter was taken to the Hon'ble Supreme Court.  The Hon'ble
Supreme Court also found that 45 questions out of a total of 100 questions
contained in 'A' series question paper were erroneous.  The Hon'ble Supreme
Court having concurred with the same found fault with the direction of the High
Court for re-examination and instead, the Hon'ble Supreme Court  directed
revaluation of the answer sheets of 'A' series question paper, by correcting the
key answers.  In my considered view, this Judgment, in no way, helps the case of
the respondents.  As I have already pointed out in the previous paragraphs, if
the error is in respect of key answers, in order to rectify the same, it would
be possible to correct the key answers and to go for revaluation of the answer
sheets in respect of 'B' series question paper alone.  But, here, in the case on
hand, the error is not in respect of key answers but the questions themselves
were incorrect only in respect of 'B' series question paper.  Therefore, it is
not at all possible to rectify the error in any manner to avoid re-examination.

25.The learned Advocate General suggested a third course also.
According to him, after deleting the above 40 erroneous questions, total number
of marks may be reduced to 110 and the correct 110 questions may be valued.
This action, in my considered opinion, will not serve the purpose.  The
prospectus states that the question paper is for 150 marks.  It cannot be
reduced to 110, because it will be against the prospectus.  Assuming that this
Court could permit the said course in exercise of its equity jurisdiction, even
then, as I have already pointed out, this will only result in injustice to the
meritorious candidates.  This again can be illustrated in the following manner.
There are two candidates who answered 'A' series questions.  The first
candidate answered 10 questions  other than the erroneous questions and 40
questions which are under dispute.  Thus he has secured  50 marks.
The second candidate has answered 25 questions other than the questions
under dispute.  He has offered no answer or incorrect answers for the 40
questions under dispute. Thus he has secured only 25 marks.
Now, if the above method suggested by the learned Advocate General is adopted,
the 1st candidate will lose 40 marks  and thus will get only 10 marks and the
second candidate will retain 25 marks.  Thus, in respect of two candidates who
answered 'A' series question paper, a meritorious candidate is pushed back and
the non-meritorious candidate goes to the top.  Therefore, this method also will
not create a common platform. This is because the incorrect question papers were
not distributed to all the candidates  as had happened in the examinations dealt
with in the judgments of the Hon'ble Supreme Court  cited supra.  Therefore,
this course also is not possible to be adopted.
26.The learned Advocate General made a fervent appeal to this Court
to avoid ordering re-examination.  To make this submission, the learned Advocate
General submitted that in these writ petitions, the relief sought for by the
petitioners themselves is for only awarding grace marks for these erroneous
questions.  The learned Advocate General would therefore submit that it may not
be appropriate for this Court to order for re-examination, since such a relief
has not been prayed for at all. In this regard, I may again refer to the
judgment of the Hon'ble Supreme Court  in Rajesh Kumar  and others vs. State of
Bihar and others, reported in (2013) 4 SCC 690.  In paragraph Nos.14 and 15, the
Hon'ble Supreme Court  has made the following observation.
"14.Appearing for the appellants, Mr. P.P. Rao, learned senior counsel,
argued that the High Court had committed an error in quashing the entire
selection process even when the petitioners had not made any prayer to that
effect. Mr. Rao was at pains to argue that a relief which was not even prayed
for by the writ petitioners could not be granted by the Court whatever may have
been the compulsion of equity, justice and good conscience. Reliance in support
of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan
Samadkhan Sindhi, (2010) 1 SCC 234 and State of Orissa . v. Mamata Mohanty
(2011) 3 SCC 436.

15.There is, in our view, no merit in that contention of Mr.Rao. The
reasons are not far to seek. It is true that the writ petitioners had not
impleaded the selected candidates as party respondents to the case. But it is
wholly incorrect to say that the relief prayed for by the petitioners could not
be granted to them simply because there was no prayer for the same. The writ
petitioners, it is evident, on a plain reading of the writ petition questioned
not only the process of evaluation of the answer scripts by the Commission but
specifically averred that the "Model Answer Key" which formed the basis for such
evaluation was erroneous. One of the questions that, therefore, fell for
consideration by the High Court directly was whether the "Model Answer Key" was
correct. The High Court had aptly referred that question to experts in the field
who, as already noticed above, found the "Model Answer Key" to be erroneous in
regard to as many as 45 questions out of a total of 100 questions contained in
'A' series question paper. Other errors were also found to which we have
referred earlier. If the key which was used for evaluating the answer sheets was
itself defective the result prepared on the basis of the same could be no
different. The Division Bench of the High Court was, therefore, perfectly
justified in holding that the result of the examination insofar as the same
pertained to 'A' series question paper was vitiated. This was bound to affect
the result of the entire examination qua every candidate whether or not he was a
party to the proceedings. It also goes without saying that if the result was
vitiated by the application of a wrong key, any appointment made on the basis
thereof would also be rendered unsustainable. The High Court was, in that view,
entitled to mould the relief prayed for in the writ petition and issue
directions considered necessary not only to maintain the purity of the selection
process but also to ensure that no candidate earned an undeserved advantage over
others by application of an erroneous key."

27.In view of the above legal position, as reiterated by the Hon'ble
Supreme Court  in Rajesh Kumar's case, in the instant case, though the
petitioners have sought for only awarding of grace marks, I am of the view that
such relief cannot be granted to the petitioners, as the same would materially
affect other candidates.  Therefore, by moulding the relief, in my considered
opinion, this Court could order only for re-examination.

28.I am conscious of the fact that all the candidates who have
written the examination in 'A', 'C' and 'D' Series question papers have not been
added as parties to these writ petitions.  It is true that in the event this
Court orders for re-examination, it may cause hardship to them.  But, as held by
the Hon'ble Supreme Court  in Rajesh Kumar's case, adopting any one of the
methods suggested by the learned Advocate General, as dealt with herein above,
would only result in injustice to the meritorious candidates.  In any selection
process, the merit should not be a victim.  Every endeavour should be made to
give weightage for the merit and to select meritorious candidates.  Simply
because it will cause some hardship for TRB to conduct re-examination, the
meritorious candidates cannot be allowed to suffer.

29.The learned Advocate General would take me through paragraph 19
of the judgment in Rajesh Kumar's case cited supra to make submission that
unless there are compelling reasons like mal-practice, fraud or corrupt motives,
thereby vitiating the entire examination, ordering for fresh examination may not
be appropriate.  At this juncture, it will be necessary to have a look into
paragraph 19 of the judgment, which reads as follows:
"19.The submissions made by Mr.Rao are not without merit.  Given the
nature of the defect in the answer key the most natural and logical way of
correcting the evaluation of the scripts was to correct the key and get the
answer scripts re-evaluated on the basis thereof.  There was, in the
circumstances, no compelling reason for directing a fresh examination to be held
by the Commission especially when there was no allegation about any malpractice,
fraud or corrupt motives that could possibly vitiate the earlier examination to
call for a fresh attempt by all concerned.  The process of re-evaluation of the
answer scripts with reference to the correct key will in addition be less
expensive apart from being quicker.  The process would also not give any unfair
advantage to anyone of the candidates on account of the time lag between the
examination earlier held and the one that may have been held pursuant to the
direction of the High Court.  Suffice it to say that the re-evaluation was and
is a better option, in the facts and circumstances of the case."

30.A reading of the above judgment would go to show that the Hon'ble
Supreme Court  has not laid down it as a law that only in cases were mal-
practice, fraud or corrupt motive is found, there shall be an order for re-
examination.  The  Hon'ble Supreme Court has only held that events like mal-
practice, fraud or corrupt motives are some of the compelling reasons.  What
constitutes a compelling reason depends on the facts and circumstances of each
case.  In the instant case, though it is not alleged that there was  fraud,
corrupt practice or mal-practice, I find that there are compelling reasons to
order for re-examination.  As I have extensively narrated herein above, any
method suggested by the learned Advocate General to avoid re-examination will
only result in injustice to meritorious candidates.  As a matter of fact, I made
every endeavour to find an amicable course so as to avoid re-examination.  But,
unfortunately, I find no such viable course.

31.The learned Advocate General would submit that for conducting re-
examination it will take another six months in the following manner.
"PG Tamil reexam work could be started during December 2013.

Sl.           Work description              Time required
No.
 1   Question paper setting                    3 weeks
 2   Standardisation                           2 weeks
 3   Handing over of QPs to DGE
 4   Printing of OMR answer sheets             2 weeks
 5   Exam Centres finalization, Hall
     tickets generation & uploading
                                               2 weeks
 6   Printing of Question Papers               4 weeks
 7   Despatching of materials and pre-          1 week
     exam arrangements
 8   Examination
 9   Scanning of OMRs                           1 week
 10  Publishing tentative answer keys          2 weeks
     and receiving of candidates'
     representations
 11  Key scrutiny                              3 weeks
 12  Finalisation of results                   2 weeks
 13  Certificate verification                  2 weeks
     Total time required                       24 weeks
                                           (approximately 6
                                               months)

The Secretary of TRB was present in the Court.  To a specific query made by the
Court, he submitted that an alternative question paper set already is ready with
TRB and it is to be given only for printing purpose.  As has been stated in the
statement, it will take only four weeks hardly.  Thereafter, within one week
examination could be conducted.  So far as the time mentioned herein above in
the table for re-examination, valuation, finalisation of results, certificate
verification etc., even if any one of the modes suggested by the learned
Advocate General is adopted, this time will be consumed for screening OMR answer
sheets, publishing results, certificate verification, etc.  Therefore, if re-
examination is ordered, a minimum time of 4 to 5 weeks alone is required,
additionally.  In order to avoid the delay of five weeks, this Court cannot
allow the meritorious candidates to fall as victims at the hands of TRB due to
the above 1/3rd of erroneous questions in 'B' series alone.    As I have already
pointed out, the endeavour of this Court, all through, was to minimise the
hardship to the candidates, to create a common platform for the candidates to
compete where no candidate will be put into any advantage or disadvantage and to
provide equal opportunity to prove their merit.  Having made such an endeavour,
with pains, I find no other option but to order for re-examination.  This is the
only viable solution which will serve the purpose.

32.Yet another judgment of the Hon'ble Supreme Court  in Guru Nanak
Adev University  vs. Saumil Garg and others, reported in (2005) 15 SCC 749, was
also brought to my notice.  In that case, the competitive examination was for
admission to medical colleges.  In that case, the questions were objective type.
The key answers for 8 questions were found wrong.  The Hon'ble Supreme Court
held reasonable procedure to be followed would be to give credit to those who
attempted the questions or some of them.  In paragraph 12 and 13, the Hon'ble
Supreme Court  has held as follows:
"12.There is yet another problem, namely, 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
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."
33.This judgment does not help the respondents in any manner, for
the reason that first of all that judgment relates to wrong key answers.
Secondly, the wrong key answers were applied as against all the candidates.
Thus either advantage or disadvantage was uniform to all.  But, in the instant
case, the wrong questions were only in 'B' series question paper. Unfortunately,
except 8000 candidates, around 24 thousand candidates have been benefited with
correct question papers. Therefore, either advantage or disadvantage will not be
uniform if the above method adopted by the Hon'ble Supreme Court  is followed in
the instant case.

34.In view of foregoing discussions, though it will cause some
hardship for TRB to conduct re-examination and though the candidates have to
once again burn their night oil to prepare for their examination and though it
may cause  financial burden considerably to the official respondents, on that
score this Court cannot allow injustice to be caused to candidates  by allowing
TRB to value the answer sheets by adopting any one of the methods suggested by
the learned Advocate General.  I find that ordering for re-examination is the
only equitable relief this Court could grant to the parties.
35.I regret that this Court is made to take such a hard line.  This
Court is able to foresee the hardship and sufferings that the candidates are
going to experience.  This Court is also conscious of the fact that the
candidates who have faired well in the present examination may not do so well in
the re-examination and ultimately suffer.  All these hardships are, in my
considered view, because of the indifferent attitude of TRB, as narrated above.
Judiciary, being the institution which has been established under the
Constitution to enforce equality and to protect the other rights of the
citizens, cannot show any reluctance to take a hard line to order for re-
examination.  After all, as the English proverb goes, "one cannot make omlet
without breaking few eggs".
36.In the result, the writ petitions are disposed of in the
following terms:
(i)The written competitive examination for recruitment of Post Graduate
Assistants in Tamil subject held on 21.07.2013 is hereby set aside.
(ii)The official respondents, more particularly the Teachers Recruitment
Board, is directed to conduct fresh examination as early as possible, in any
event, not later than six weeks from the date of receipt of a copy of this
order.
(iii)For such a fresh examination, fresh hall tickets need not be issued
to the candidates.  Old Hall Tickets downloaded from the Teachers Recruitment
Board Website can be considered as sufficient.
(iv)There shall be no fresh calling for applications.
No costs.  Connected miscellaneous petitions are quashed.

gb

To

1.The Principal Secretary,
  Government of Tamilnadu,
  Department of School Education,
  Fort St.George, Chennai-9.

2.The Director of School Education,
  College Road, Chennai-6.

3.The Secretary,
  Teachers Recruitment Board,
  E.V.K.Sampath Maligai,
  DPI Compound, College Road,
  Chennai-6.

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