DELHI METRO RAIL CORPORATION LTD v. SH JASPREET DHINGRA

13. Cutting a long story short, the result was that the respondents fell short of the minimum qualifying marks by ½ mark, and, therefore, were treated as not having qualified in the papers and, therefore, not eligible for appointment.

14. Aggrieved by the aforesaid act of the petitioners, the candidates approached the Central Administrative Tribunal[7] by way of OA 390/2018[8]. 6 “the RTI Act” hereinafter “the Tribunal” hereinafter Jaspreet Dhingra & Ors v DMRC & Ors

15. By judgment dated 29 November 2024, the Tribunal has allowed the OA, following the judgments of the Supreme Court in Abhijit Sen v State of UP[9] and Guru Nanak Dev University v Saumil Garg10.

16. Aggrieved by the judgment of the Tribunal, the DMRC has petitioned this Court under Article 226 of the Constitution of India.

17. We have heard Mr. V S R Krishna, learned Counsel for the petitioners, at considerable length. Analysis

18. The impugned judgment notes the manner in which the DMRC proceeded, after their decision to delete the aforesaid question, as disclosed to the respondents under the RTI Act. In that connection, para 4 of the judgment may be reproduced as under:

capacity should be '250 W' instead of '250 V' wrongly printed in the question. The applicants by using their commonsense, knowledge and experience and after confirming this Qn. in the Hindi version of Paper-1 solved the question by shading the correct answer as (a) i.e. 600 kWH. There were in total 140 multiple choice questions (MCQ) of Paper-1 & II each carrying ½ mark, (Total 70 marks). The overall minimum qualifying marks for both papers for general candidates (UR) were 42 (i.e., @ 60% of

70) which were secured by the applicants as confirmed after viewing their marks on the computer secured by the individual applicant. From the information supplied to the applicants by the DMRC under the RTI Act, following alleged glaring and arbitrary actions of the DMRC came to their knowledge in respect of general (UR) category candidates:- FOR PAPER-I (a) Before Examination

(i) Total Questions - 100 Nos.

(ii) Marks of each question - ½ marks

(iii) Total marks - 50

(b) After Examination (Disputed Qn. of Paper-I deleted) Total Questions for computation of marks - 99 Nos. Total Marks kept unchanged - 50 Marks Marks of each question [99 Qns] adopter for computation of Answers -50/99= 0.50505 Marks FOR PAPER-II (No change)

(i) Total Questions - 40 Nos.

(iii) Total marks 20 marks - 20 marks

Minimum Qualifying Marks (Paper-I & II) (No Change) Total Marks (Paper I & II) - 70 Minimum Qualifying Marks - @60% of 70 (Paper-I & II) - 42 The DMRC deleted from computation, the marks secured by the applicants in the disputed Question of Paper-1. Though the disputed Qn. of Paper-I was deleted by the DMRC, the minimum qualifying marks (Paper-I & II) should also have been revised for 139 Qns. Of Paper-1 and II to 41.[7] [139×1/2 × 60/100]. All the applicants obtained the overall minimum qualifying marks of 42 (without deletion of disputed Qn. of Paper-I) and more than the 'should be revised' overall minimum qualifying marks of 41.[7] (on deletion of disputed Qn. of Paper-I). However, the DMRC by maintaining the overall minimum qualifying marks (Paper-I & II) as 42 initially fixed for general (UR) candidates, have stated to be acted in a most arbitrary and discriminatory manner which showed that the DMRC failed to act as a Model Employer by not giving credit of ½ marks to the applicants for correctly attempting the disputed Qn. of Paper-I.”

19. As the Tribunal notes, the respondents, instead of reading Q. 100 in the question paper in a myopic or hyper-technical manner, used their common sense and understood the reference to “250V” in the question as a typographical error, which should have read “250W”. To this observation of the Tribunal, Mr. Krishna submits that a candidate who is answering a physics paper is not expected to use common sense. He intercedes at this point to clarify that his actual submission was that “while answering physics numericals, no common sense is required”. He further clarifies that what he intended to state was that other candidates, who may have literally read the said question, without applying common sense, and may have read “250V” as “250 W”, ought not to be prejudiced.

20. We pointed out to him that the simple way of avoiding prejudice to any candidate, and not to penalize the candidates for the typo of the DMRC, would have been to grant marks for the said question across the board to all candidates.

21. Mr. Krishna acknowledges that this was one of the options available to the DMRC. He submits that if the DMRC chose, instead of exercising the said option, to delete the question altogether, and to give zero marks to all candidates, that too was an available option, and the Court ought not to interfere with the subjective decision of the DMRC regarding the option which it chose to select. He relies, for this purpose, on the judgment of the Division Bench of this Court, authored by Sanjiv Khanna, J., as the Hon’ble Chief Justice of India then was, in Prabha Devi v GNCTD11. The passages from Prabha Devi, on which Mr. Krishna placed reliance, read thus:

2016 SCC OnLine Del 3253 computed with reference to total 198 marks instead of 200 marks. The confusion in certain questions in any examination is an accidental and speculative situation. No hard and fast rules or guidelines can be laid down to deal with such kind of situation and it is for the concerned administrative authority or recruiting agency to evolve a solution to the problem with reference to the given circumstances. They may:-

(i) Cancel the examination itself;

(ii) Give grace marks to all the candidates

(iii) Reduce the total marks and may not give any credit to the confusing/wrong question.

32. Once an authority takes a decision to evolve one of the apposite possible methods to solve the problem, the same should not be judicially interfered with. When the confusion was regarding two questions only and instead of giving advantage to all the candidates, as a grace, the respondents preferred to make realistic assessment of the suitability of the candidates i.e., they decided to give credit only to those candidates who actually attempted the questions, no fault can be found with them. Such proposition came up for adjudication before Hon'ble High Court of Judicature at Bombay in Abhijit Uddhavrao Nikam v The Maharashtra Public Service Commission12 with Mahesh Nemchand Singhal v The Maharashtra Public Service Commission13 and their Lordships viewed that the corrective action of deletion of the question adopted by the respondent could not be found arbitrary and the course of corrective action proposed by the respondents for allotment of marks to all the incorrect questions to every candidate could not have been a solution to the problem. Para 7 of the judgment reads thus:-

(2013) 4 AIR Bom R 1106 Judgment dated 14 November 2011 in WP C 2499/2013 involved negative marking, allotment of marks to incorrect questions would not have benefited everybody equally. With deletion of the questions and the marks therefore not only the marks allotted to the questions but also the negative marking wherever given got deleted thereby brining all the candidates to the same level or position. The assessment of the candidates then was only on the basis of the remaining questions that had been attempted by them. Since, there is neither any arbitrariness not illegality in the course of action adopted by the respondent, there cannot be any judicial interference with the same. In the circumstances, we find no merit in the petitions. The Writ Petitions are therefore dismissed with no order as to costs.”

33. Being bound by the view taken by the Hon'ble High Court (ibid), we cannot interfere with the act of the respondents to not award grace marks to every candidate and deduct the total marks by two. In view of the abovementioned, we are not inclined to grant the relief sought in these Original Applications. The same are accordingly dismissed.”

4. The respondent, i.e. the DSSSB, had deleted two questions as a result of which the total marks were reduced from 200 to 198. Accordingly the qualifying 40/30% marks were computed with reference to a total of 198 questions of one mark each and not 200 questions. Thus the candidates were required to have a minimum qualifying score of 40/30% marks out of 198 marks. The contention of the petitioners is that candidates should be allotted or given one mark for each of the two deleted questions. In other words, each candidate who had participated in the examination would be entitled to one extra percentage point or two marks for the two questions that were deleted.

5. The Tribunal has rejected the prayer for grant of/awarding two marks for the deleted questions, relying on the decision of the Bombay High Court in, Abhijit Uddhavrao Nikam (supra). The aforesaid decision had upheld the decision of the respondents therein of assessment based on the remaining questions. The procedure adopted in not awarding or giving full marks for deleted questions it was observed was not arbitrary or illegal. Therefore, there would not be any judicial interference. *****

8. As noticed above, the issue in question is narrow and limited. The petitioners claim that each candidate should be given one mark for each deleted question and there should not be any negative mark for the deleted questions, whereas the respondents submit that the deleted questions were removed and should not be taken into consideration for ascertaining whether the candidates had secured the minimum eligibility cut off marks of 30% or 40%. The present situation arises for the reason that the candidates did not qualify and secure the stipulated minimum qualifying marks and hence several vacancies could not be filled up. This is not a case wherein the candidates had qualified the prescribed benchmark but were not shortlisted for the second stage examination/viva voice. This relevant fact has to be kept in mind when we examine the decisions relied upon by the counsel. In the later case, the issue of awarding an additional mark or deleting the question altogether may be of academic interest, as it would not make any difference to the select list of candidates eligible for the second stage examination/viva voice. *****

23. The last judgment relied upon by the counsel for the petitioners is the case of Abhijit Sen (supra). This decision arises out of the same examination which was the subject matter of the judgment in the case of Kanpur University, Through Vice- Chancellor & Ors. v Samir Gupta & Ors.14 i.e., Multiple Choice Objective-type questions test for medical entrance. With reference to one question, the Supreme Court observed that there were two correct answers namely, alternative Nos. 2 and 3 but the appellant therein had marked alternative No. 1. In these circumstances, the Supreme Court held that the appellant therein was not entitled to one additional mark on the ground that there were two possible correct answers. The Supreme Court observed:

In this view of the matter, we do not think that either of the appellants is entitled to an addition of four marks as suggested by counsel on their behalf by reason of their answer given to Question 31.”

22. Apart from the judgment in Prabha Devi, Mr. Krishna also placed reliance on the judgment of the Supreme Court in Guru Nanak Dev University, and specifically draws attention to para 12 of the said decision, which reads as under:

23. Mr. Krishna’s submission is that the manner in which the DMRC acted in the present case is in complete conformation with the course of action advocated by the Supreme Court in para 12 of Guru Nanak Dev University. For reasons would which become presently apparent, we are unable to agree.

24. Having perused the record and heard Mr. Krishna, we do not find this to be a case in which the impugned judgment of the Tribunal calls for interference.

25. Before proceeding to say why, we may observe that, in the official note dated 11 August 2017 of the AM/HR/O & M which considered the course of action available, given the objections raised by the candidates, the following options were mooted: “Since, one question of question paper-I for the post of JE/Electrical and JE/Electronics has been considered incorrect, in tandem of previous LDCE and LDS, it is proposed that marks of incorrect question may be nullified/unmarked and positive ½ marks may be awarded to all who have appeared for the post JE/Electrical and JE/Electronics.”

26. The aforesaid option, in our view, would have been a wholesome way of dealing with the matter. Instead, as a result of the course of action that DMRC chose to adopt, candidates such as the respondents, who had read “250 V” in Q. 100 as “250 W” and correctly answered the question, ended up with zero marks for their effort.

27. Mr. Krishna sought to contend, relying on Prabha Devi that, where the authorities have, with them, various alternative courses of action from which to adopt one, the Court should not interfere with the subjective decision of the authorities regarding the option which they chose to adopt. That proposition, in our opinion, can, as we have already observed, apply where the options are equally open for choice. Where one option results in marked inequity and injustice, and the other is wholesome and equitable, the Court, in our opinion, can, and must, interfere, if the authorities choose the former over the latter.

28. There can be no doubt about the fact that, when faced with a situation in which questions in a question paper are found to be incorrect, vague or ambiguous and objections in that regard, raised by the candidates are found to contain merit, the authorities have with them various options which they may follow. One such option is, undoubtedly, the option of deleting the question altogether.

29. As has been held in Guru Nanak Dev University, specifically in para 12 to which Mr. Krishna referred, where the question is so vague that it is incapable of having a correct answer, the appropriate course of action to be followed may be deleting the question altogether.

30. In our considered opinion, it cannot be said, by any stretch of imagination, that Q. 100, merely because of the reference therein to

31. Reverting to the legal position, as we have noted, an examining authority may in such cases have various options available to it, as has been noted by the Division Bench of this Court in Prabha Devi.

32. In such a case, it is also correct to state that a court should be cautious in the manner of interference with the decision of the authority. That, however, would be provided the options available with the authority are reasonably available options and the exercise of the option that the authorities have chosen has not resulted in prejudice. This is clear from the concluding part of para 27 of the judgment in Prabha Devi, which reads: “27. A reading of the aforesaid judgments would reflect that there are four possible options available to the authorities, when they are confronted with the situation where the question(s) included in the multiple choice objective type tests is found to be incorrect, ambiguous or the answers themselves are found to be incorrect, ambiguous or capable of dual answers. The options are;

(i) the question can be deleted and treated as a zero mark question;

(ii) the question though deleted, each candidate is awarded marks as if the answer was correct and without negative marking; (iii) the question is not deleted and the candidates who have given the right answer are awarded marks, but there is no negative marking; and

(iv) if there are two correct suggested answers, candidates who have given any of the two answers are awarded full marks. In the latter case, possibly negative marking may not be mandated. The aforesaid options can be divided into two categories, where the question is deleted, and the question is not deleted but option Nos.

(iii) or (iv) are exercised. Which of the two categories would be applicable would depend upon the question and the suggested answers. The option to be selected has to be question-wise, i.e., with reference to each question. Lastly, while selecting the option, the authorities must take into consideration two factors, first, the sanctity of the selection process should be maintained and second, the students/candidates who have appeared should not suffer objectionable prejudice and disadvantage. In the present case, the authorities have exercised the first option, the question has been deleted and treated as zero mark question. It is possible to urge that award of additional marks, i.e., the second option is the most suited and preferred option, for least possible prejudice is caused to the students/candidates when an additional mark is awarded. However, it cannot be said that the said option is the only valid and acceptable option or when the said option is adopted, no prejudice is caused to any students/candidates. Prejudice may still be caused because students who have correctly answered the question in spite of ambiguity, etc., are denied benefit of the correct answer. As held in Abhijit Sen (supra), all the students/candidates were placed in a similar position and had felt and faced the same difficulty. In Kanpur University (supra) and Gunjan Sinha Jain15, the Gunjan Sinha Jain v Registrar General, High Court of Delhi, 2012 SCC OnLine Del 1984 Supreme Court and High Court have preferred to adopt the first option, i.e., to delete the question and treat the question as a no mark question. Hence, the exercise of the first option per se would not be wrong or contrary to law. Onus in such cases would be on the candidate to show that deleting the question and exercise of the first option has caused prejudice. To establish the prejudice, the question and suggested answers, the model key and the answer given by the candidate have to be adverted to and examined. Only when the answer given it is observed, is correct or should be accepted, that additional mark(s) can be awarded. In the present case, the petitioners have alleged prejudice, but have not been able to demonstrate and show how and in what manner the method adopted, i.e., treating the two questions as zero mark questions, is required to be interfered. It would not be appropriate to reject and overturn the criteria/option exercised, by referring and relying on the general perception that the second option is the most fair and just criteria. The power of judicial review is not an alternative or an appellate power. It is only when there is an error in the decision making process, which has to be shown and established by the petitioner, that the power is exercised.” (Emphasis supplied)

33. Where the course of action adopted by the respondents results in marked prejudice to candidates, therefore, a court has necessarily to interfere.

34. In the present case, as a result of the course of action that the petitioners adopted, all candidates, who correctly answered Q. 100, by applying common sense and understanding the reference to “250 V” in the said question as a minor typo, which had to be read as 250W, have ended up with zero marks for their efforts. As a result, candidates such as the respondents who had earlier qualified in the LDCE, have now been treated as disqualified.

35. That, in our view, would be completely unacceptable and would amount to the exam-setting authority being permitted to capitalize on an error committed by the authority itself.

36. The only reasonable approach that the DMRC could have adopted in the present case, in our considered opinion, and as the Tribunal has also held, would have been to award half a mark across the board to all candidates. While we feel that one would, normally, understand “250 V”, in Q. 100, to be no more than a typo, we cannot fault candidates who may have not attempted the question, in view of it's being obviously erroneous, which may have resulted in confusion in the mind of the candidates. As a result, the only viable option, in our view, would have been to award half a mark across the board to all candidates.

37. We cannot, however, agree with Mr. Krishna that, while answering a question paper which deals with numerical physics questions, candidates must completely abandon common sense.

38. Mr. Krishna also sought to submit that the decision to delete Q. 100 from the question paper altogether, was justified because the parallel Hindi question was totally vague. This is an aspect which has not even been raised before the Tribunal. That apart, a candidate who attempts the question in a particular language is not required to read the question paper in both languages before attempting the question. If the question, in the language in which the candidate chose to attempt the paper, was not ambiguous, no principle of law can justify deletion of the question from question paper merely because, in the vernacular equivalent, some ambiguity may have been present. How the authorities would have to deal with such a situation would be a matter for the authorities to consider if such a situation arose. One possible option would be to grant marks to the question even for the candidates who had attempted the question in its vernacular form. Deleting the question wholesale from the question paper, thereby prejudicing all the candidates who had correctly attempted the question, would however, be completely unacceptable in law.

39. We may also observe that the manner in which the petitioners proceeded in working out the marking, after deleting Q. 100, is also somewhat surprising. If Q. 100 were to be deleted, ordinarily, one would expect that the number of questions in Paper I would reduce to 99 and that the total marks would also reduce to 49.5. However, as per the information provided to the respondents under the RTI Act, the manner in which the DMRC marked the paper after deleting the aforesaid Q. 100 was as under:- FOR PAPER-I (a) Before Examination

(i) Total Questions - 100 Nos.

(iii) Total marks - 50

(b) After Examination (Disputed Qn. of Paper-I deleted) Total Questions for computation of marks - 99 Nos. Total Marks kept unchanged - 50 Marks Marks of each question [99 Qns] adopter for computation of Answers - 50/99=0.50505 Marks FOR PAPER-II (No change)

(i) Total Questions - 40 Nos.

(iii) Total marks 20 marks - 20 marks

To a query from the Court as to how, if the questions were reduced to 99, the total marks would remain unchanged at 50, Mr. Krishna submits that the total marks would be 49.[5] but 50 was correct as it represented the weightage for each question by extrapolating the marks to 100.

40. Frankly, we are unable to understand this arithmetic.

41. We are, however, spared the effort of doing so, as, in our view, the respondents could not have been awarded zero marks for Question No. 100. We concur with the view of the Tribunal that the appropriate course of action for the DMRC to have followed, in the present case, was to grant marks across the board to all candidates who had attempted Q. 100, rather than delete half a mark and award zero to candidates such as the respondents who had answered the question correctly.

42. No court can subscribe to a procedure which results in awarding zero marks to a question which is correctly answered.

43. We, therefore, find no cause to interfere with the impugned judgment of the Tribunal.

44. The writ petition is, accordingly, dismissed.

C. HARI SHANKAR, J.