TRB PG TAMIL B SERIES நீதியரசர் நாகமுத்து அளித்த முக்கிய தீர்ப்பு

R.Parameswari
... Petitioner in W.P.No.1775 of 2014

-Versus-


1. Government of Tamil Nadu,
Rep. by The Secretary to Government,
School Education Department,
Fort St. George, Chennai 600 009.

2.The Director of School Education,
College Road,
Chennai 600 006.

3.The Teachers Recruitment Board,
Rep. by its Member-Secretary,
College Road, Chennai 600 006.

... Respondents in W.P.No.1775 of 2014

The petitioners are all Post Graduates in Tamil subject and they do have B.Ed., degree to their credit. They are fully eligible for the post of Post Graduate Assistant in Higher Secondary Schools in the State of Tamil Nadu. The Teachers Recruitment Board [in short, the TRB] issued advertisement No.02/ 2013 dated 09.05.2013 inviting applications for direct recruitment to the said post for the year 2012-2013. 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. The written examination was held on 21.07.2013. The petitioners participated in the said examination.

2. The question papers were set in four series namely, A , B, C and D. Though all the 150 questions in every series are the same, the order of questions was different in each series from the others. The petitioners were supplied with B series question paper in the examination hall. Many of the participants, who were supplied with B series question papers, found that a number of questions were erroneous. It is also informed that some of them have requested to cancel the examination because of the erroneous questions. But, the TRB went ahead with the examination. It needs to be mentioned that there were no such errors in A, C and D series question papers. Thus, those candidates, around 24000, who were supplied with A,C and D series question papers, were not in any manner affected. To put it in short, because of the errors in the "B" series question papers, around eight thousand candidates who were supplied with B series question papers alone were affected.

3. The TRB, thereafter, published common tentative key answers for all the 150 questions. Admittedly, there were objections regarding the key answers as well as questions. But, the TRB was not serious in taking into account the above objections regarding the errors in B series question papers.

4. In those circumstances, while I was sitting in Madurai Bench of this Court, there were two writ petitions in W.P. (MD)No.13267 of 2013 and W.P. (MD)No.14940 of 2013 filed by one Mrs.J.Antony Clara and Ms.S.Vijayalakshmi respectively. In those writ petitions, the petitioner(s) therein submitted that 21 questions namely, 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 suffer from errors and, therefore, they prayed for awarding of grace marks for those 21 questions irrespective of whether they had attempted to answer these questions or not, on the ground that those questions were incapable of being understood and answering.

5. In the counter affidavit filed by the TRB before the Madurai Bench of this Court, it was tacitly admitted that there were errors in B series question paper. But to the shock of the court, in the counter affidavit, it was conceded that the number of questions which were erroneous was not 21, but, it was 40. The TRB, tried to throw the blame for the said errors on the printer. The Chairman, TRB, submitted a statement before the court wherein, he had stated that the TRB had decided to delete those 40 questions and had decided to value the remaining 110 questions.

6. Therefore, there had been no need for me to further probe as to whether the questions were understandable despite the mistakes in the said questions. Since, the TRB itself admitted that it had decided to delete those 40 questions, the only issue before the court was regarding the next course of action as to how to go about with the valuation of the rest of the 110 questions.

7. Various suggestions were given by the Examination Agency to get over the difficulty that arose out of the error committed in printing. The learned single Judge was not inclined to accept such suggestions. But, we, however, note that the relief sought for in the writ petitions, is not to set aside the examination, but, only to award grace marks.
8. It is also brought to our notice that approximately, a sum of Rs.1,40,00,000/- (Rupees One Crore and Forty Lakhs only) has been spent for the conduct of this examination. The appellants are willing to reserve two posts for the two candidates who have filed the writ petitions. Therefore, it is pleaded that their rights will be secured. The successful candidates will be able to get appointment which exercise need not be delayed pending the disposal of these writ appeals. No prejudice will be caused to the writ petitioners. Whereas the prejudice and irreparable loss that will be caused to the appellants and the selected candidates, is much more. We are inclined to accept this plea in the given circumstances.
9. We are agreeable to the suggestion put forth by the learned Advocate General appearing for the appellants for the reasons aforesaid. We notice that there is a huge shortage of Teachers in the schools. The non-filling up of the posts of Tamil Teachers will be detrimental to the students. Since the appellants are agreeable to keep two posts vacant pending the writ appeals and considering the need to fill up the post of Post Graduate Assistants (2012-2013) for the subject of Tamil, we are agreeable to the plea of the learned Advocate General.
10. Therefore, on this plea, we are inclined to pass the following interim order, pending the writ appeals:
(i) The appellants shall reserve two posts of Post Graduate Assistants (2012-2013) for the subject of Tamil, pending the writ appeals, to consider the claim of the respective first respondents herein in both the writ appeals.
(ii) The appellants shall declare the merit list of candidates already prepared based on the examination conducted on 21.07.2013 and make appointments except to two posts which has been ordered to be kept as reserved. (iii) Insofar as the claim of the writ petitioners/first respondent in both the writ appeals, whose writ petitions are only to provide grace marks for 21 questions, the appellants are directed to work out their ranking based on the 21 grace marks, and submit a tentative list before this Court on the next hearing date.
11. Post the matters in the second week of February' 2013.
The said writ appeals are still pending before the Madurai Bench of this Court. The interim order is also in force.


9. Subsequently, several candidates who claimed that they were also affected by 40 erroneous questions in B Series question paper, filed writ petitions before the Principal Bench of this court claiming parity and demanding 21 grace marks to them also, as ordered by the Division Bench in the writ appeals in respect of two candidates. Precisely, 62 such writ petitions were filed as detailed in the counter affidavit of the respondent Board. These writ petitions were filed one after the other in quick succession. When these writ petitions came up for admission on various dates, the TRB submitted that the TRB had no objection for passing orders directing for the grant of 21 grace marks to the writ petitioners. Accordingly, a learned single Judge, sitting in the Principal Bench, allowed all such writ petitions thereby directing to award 21 grace marks to all the sixty two writ petitioners. For better understanding, let us have a glance through the order passed in one of the writ petitions namely, W.P.No.3065 of 2014 dated 03.02.2014 [R.Sumathi v. The State of Tamil Nadu and others] which reads as follows:-
4. Today, when the matter is taken up for consideration, the learned counsel for the petitioner has produced a detailed order of the Division Bench of the Madurai Bench of this Court passed in M.P.(MD) Nos.1 and 1/2013 in W.A.(MD) Nos.1089 and 1090/2013 dated 11.12.2013.
5. Mr. RM.Muthukumar, learned Government Advocate, appearing for the respondents submitted that the petitioner has also attended the same questions in addition to certain other questions. He further submitted that the order referred to above, has been passed by the Division Bench of the Madurai Bench, and this Court may also pass similar order in this petition as well.
[Emphasis supplied]

6. On a perusal of the said order, I find that in the said writ petition, the error was pointed out by the writ petitioner therein so far as 21 questions are concerned. The Teachers Recruitment Board has also accepted the same before the Division Bench. Hence, the Division Bench directed the appellants therein to work out the ranking of the writ petitioner therein based on 21 grace marks. The petitioner herein, who has also attended the same questions in addition to certain other questions, is now seeking for the same relief in the present writ petition.
7. Following the above said order passed by the Division Bench of the Madurai Bench of this Court, this Court directs the respondent to work out the ranking of the petitioner, by providing full grace marks for the questions containing errors. This writ petition is disposed of accordingly. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs.

10. Thus, a total number of 62 candidates had the benefit of getting 21 grace marks. It needs to be mentioned that though 40 questions were admittedly erroneous, the learned single Judge was pleased to award 21 grace marks to the writ petitioners therein following the interim order passed by the Division Bench of Madurai Bench of this Court.

11. Now, in the instant writ petitions, the petitioners are, admittedly, the candidates, who were supplied with the B series question papers. The prayer in these writ petitions is for awarding 21 grace marks as it has been awarded to the writ petitioners in the above 62 writ petitions and the respondents in the writ appeal before the Division Bench of Madurai Bench of this Court.

12. Mr.D.Krishnakumar, the learned Special Government Pleader, has entered appearance for the TRB in all these writ petitions. A common counter has been filed in W.P.No.6449 and 6450 of 2013. The learned Special Government Pleader has submitted that the said counter affidavit may be treated as counter in all these writ petitions.
13. In the counter affidavit, it is stated, inter alia, that as per the directions issued by the Division Bench of Madurai Bench of this Court, two vacancies have been kept reserved pending disposal of the writ appeals and that the writ appeals are still pending. It is also stated in the counter affidavit that as directed in the interim order, those two candidates namely, the respondents in the writ appeals in W.A.[MD] Nos.1089 and 1090 of 2013 have been awarded 21 grace marks but, their results have not been published so far in view of the interim order.

14. In respect of the orders passed in 62 Writ petitions by the learned single Judge of this court, it is stated in the counter affidavit that the writ petitioners in those 62 writ petitions were not awarded 21 grace marks as the directions of this court in those writ petitions could not be complied with. It is further stated in the counter affidavit that after the interim order of the Madurai Bench of this Court wherein the Division Bench had directed publication of results, after valuing all the 150 questions including 40 erroneous questions, valuation was done and results were published by the TRB on 03.01.2014. It is further contended that appointment orders were also issued to the selected candidates appointing them as Post Graduate Assistants in Tamil by the Director of School Education as early as on 21.02.2014 itself. Thus, all the vacancies for the post of Post Graduate Assistants in Tamil, barring two vacancies reserved as per the interim orders in the writ appeals, were filled up as early as on 21.02.2014 and as such, except those two vacancies, there is no other vacancy available for making any fresh appointment.

15. It is also stated in the counter affidavit that the orders passed in the above 62 writ petitions started coming to the TRB only from 23.01.2014 whereas, by that time, the results had already been published on 03.01.2014. However, the counter is silent as to why the authorities had gone ahead to make appointment on 21.02.2014 , though the TRB was aware of the directions issued in the above said 62 writ petitions without awarding 21 grace marks to them and ranking them for selection. As a result, though 62 candidates had the benefit of succeeding in the writ petitions in getting direction for awarding of 21 grace marks, practically, they have not been awarded 21 grace marks and thus, they have not been selected. It needs to be noticed that in paragraph 16 of the counter, it is stated as follows:-
16. It is submitted that as on 04.03.2014 A.N. 62 orders were received from the Hon'ble High Court, Madras, out of which the Board filed Review Application for 12 cases in the Court and 2 cases are allotted R.A. Nos. and balance cases would be submitted to the Hon'ble High Court.

16. It is contended that the conduct of the respondents in not complying with the orders of the Principal Bench in the above 62 writ petitions would amount to contempt. But, I cannot examine the said question, in these writ petitions. The learned counsel for the petitioners would further submit that in the matter of competitive examination any order that is passed should be an order in rem. Thus, according to the counsel, the petitioners are also entitled for 21 grace marks as it has been awarded to the other 64 persons, namely, two persons who are respondents in the writ appeals and 62 persons who are petitioners in the earlier writ petitions.

17. At this juncture, the learned Special Government Pleader submitted that 21 grace marks were ordered to be given only to two candidates by the Division Bench of Madurai Bench of this Court and the Division Bench, did not extend the benefit to the other candidates and, therefore, the TRB confined awarding of grace marks only to those two candidates. So far as the other candidates, who were the petitioners in 62 earlier writ petitions, the learned Special Government Pleader would submit that they were not awarded marks because the orders were received from the court after the publication of results. He would further submit that the petitioners are not entitled for awarding of 21 grace marks at this length of time, since there is no vacancy available as notified and thus, awarding of 21 grace marks would not serve any purpose. He would further submit that since those 62 candidates who are the writ petitioners in the other writ petitions have not been awarded 21 grace marks, the petitioners, cannot be awarded grace marks.

18. I have considered the above submissions. Admittedly, the TRB submitted before the Madurai Bench (singe Judge) in the writ petitions filed by two candidates that the Board had decided to delete 40 questions and decided to value only the remaining 110 questions. I do not understand as to how, the TRB could take a different stand before the Division Bench for the purpose of interim order that the TRB would go ahead with valuing the answers sheets in respect of B series question paper including those 40 erroneous questions which were decided to be deleted. Now, the TRB has stated in the counter affidavit that the TRB valued those 40 erroneous questions also. It is not understandable as to how those 40 questions were capable of being valued. Anyhow, these are all the issues which are to be examined only by the Division Bench in the writ appeals. For any reason, if the writ appeals are allowed holding that some questions are wrong, I do not understand as to what kind of relief could be given to the candidates who did not approach the court who were also equally placed like that of the respondents in the Writ Appeals before the Madurai Bench. Since the process of valuation has been completed and appointment orders have also been issued thereby filling up all the vacancies, what remains

19. It was also argued by some of the counsel, since there were 40 questions wrong, the petitioners herein are entitled for 40 grace marks. It could be seen from the records that the Division Bench ordered awarding of 21 grace marks to those two candidates because they had challenged only 21 erroneous questions as they would have got marks for the rest of 19 erroneous questions. It is not explained to the court as to how, the TRB could submit to this court in the earlier 62 writ petitions that every candidate who approached this court is entitled for 21 marks, while 40 questions were wrong. The difficulty is as to how to fix the bench-mark of 21 marks for all the affected candidates. The only reply offered by the learned Special Government Pleader is that those orders passed in 62 writ petitions will be sought to be reviewed by filling review applications. But, even according to the counter affidavit, so far, review applications have been filed only in 12 cases. It is not known as to why the review applications have not been filed in the rest of the 50 writ petitions. It is also not explained to this court as to why, without even waiting for filing review applications and their disposal, the valuation was completed, results were published and appointments were also completed. It also remains to be seen as to whether such review applications are maintainable as against the consent orders.

20. At this juncture, yet another strange conduct of the TRB needs to be highlighted. The Notification was issued for recruitment for the post of Post Graduate Assistants in various subjects such as Tamil, English, Physics, Chemistry, Mathematics, Biology, Computer Science, History, Geography, etc. But till today, the TRB has not published the results in the other subjects and no appointment orders have been issued so far. When that be so, it is not explained to the court as to why the TRB was so hasty and curious in publishing the results in respect of Tamil subject alone and to complete the process of recruitment when the writ appeals are still pending.
21. At this juncture, It needs to be stated that in a case of competitive examination, when it is found that the questions or key answers were wrong, then, relief should be in rem and should not be confined to only those who have approached the court. May be because of ignorance or poverty, many affected candidates would not have been in a position to approach the court. If it is a qualifying examination, of course, in an exceptional circumstances, the relief can be confined only to the persons who have approached the court because success or failure of one candidate will have no bearing on the success or failure of the others. But, in a competitive examination, the success of one candidate may result in the failure of the other. When the competition is so neck to neck and when the candidates, who have approached the court, were awarded 21 grace marks, certainly, it will have a telling effect on the meritorious candidates who have not approached the court.
22. Admittedly, the total number of vacancies was 605. Suppose, there were 605 writ petitions and all the 605 candidates are awarded 21 grace marks, undoubtedly, those 605 candidates will get selected whereas, those meritorious candidates who have not approached the court will be rejected. This, in my considered opinion, will not be in tune with Article 14 as well as Article 21 of the Constitution of India. In other words, as held by the Hon'ble Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, the order should be fair, just and reasonable. Equality, which is enshrined in Article 14 of the Constitution of India as a fundamental right should be scrupulously ensured in a competitive examination where the level playing field should be even for all to compete and they should be treated alike. Assuming that these petitioners are entitled for parity like the two candidates who are respondents in W.A.Nos.1089 and 1090 of 2013 before the Division Bench of Madurai Bench and the other 62 candidates who are the petitioners in the other writ petitions, even then, awarding 21 marks to the petitioners will be only a wasteful exercise as the appointment orders were issued already thereby filling up all the vacancies baring the two as early as on 21.02.2014 itself.

23. These writ petitions were filed on various dates as detailed below:-
Sl.No.
Writ Petition Number (s)
Date of Filing
1
W.P.No.1081 of 2014
09.01.2014
2
W.P.No.1775 of 2014
22.01.2014
3
W.P.No.4763 of 2014
17.02.2014
4
W.P.No.6400 of 2014
27.02.2014
5
W.P.No.6449 of 2014
27.02.2014
6
W.P.No.6450 of 2014
27.02.2014
7
W.P.No.6851 of 2014
03.03.2014
8
W.P.No.7613 of 2014
11.03.2014
9
W.P.No.8540 of 2014
20.03.2014
There is no interim order passed in all these writ petitions to reserve any vacancy. All these writ petitions came to be filed after the vacancies had been filled up. Therefore, assuming that in order to maintain parity, 21 grace marks could be ordered to be awarded to these petitioners, the same would not serve any purpose because there is no vacancy available as on today. It needs to be noted that the petitioners have not challenged the appointment orders issued. Therefore, this court cannot interfere, in these writ petitions, with the appointment orders already issued to those 603 candidates. If so advised, the petitioners may seek to implead themselves as parties in the writ appeals pending before the Division Bench of Madurai Bench of this Court and seek remedy by way of an order in rem so as to get the relief, if any, for all the candidates who were affected by the above erroneous questions.

24. I also deem it appropriate to give liberty to the petitioners herein to approach this court by way of application to review this order subject to the out come of the writ appeals pending before the Madurai Bench, if they feel that they are also entitled for similar relief. To put it in a nut shell, I hold that the petitioners in all these writ petitions cannot be ordered to be awarded 21 grace marks at this stage for want of vacancies.

25. The narration of the facts above, with regret, I should say, would go to show that the TRB has taken conflicting stands at different stages before different courts. As I have already pointed out, in the two writ petitions filed before the Madurai Bench, the TRB made a statement that 40 questions were deleted; whereas, before the Division Bench, a quite different stand was taken to value all the questions including those 40 deleted questions. A curious argument had been made before the Division Bench [vide the interim order dated 11.12.2013] that the candidates did not ask for cancellation. It is true. But, it was the TRB which voluntarily had decided to delete 40 erroneous questions. Again, when 62 writ petitions were filed before this Bench, the TRB did not oppose them at all and instead, the TRB conceded that those petitioners were entitled for 21 grace marks. The TRB voluntarily submitted that 21 grace marks could be awarded. It was not even brought to the notice of the learned single Judge that valuation was already completed and recruitment process was also completed. That was why the learned single Judge of this Court had to pass orders on consent in the 62 matters ordering awarding of 21 grace marks. It is because of these orders in 62 matters, these petitioners have been prompted to approach this court thereby wasting their time and money. Strangely, for the first time, objection is raised by the TRB for awarding 21 grace marks. All these difficulties experienced by the petitioners herein are because of the conflicting stands taken by the TRB before the different courts. But, for the orders passed in the 62 writ petitions wherein no objection was given by the TRB for awarding 21 grace marks, I am of the opinion that the petitioners would not have ventured to file these writ petitions wasting their time and money. Now, at the end, this court is unable to grant the same relief as it was given to 64 similarly placed candidates as there is no vacancy, though the petitioners are also entitled for grace marks. Thus, the writ petitions have become infructuous. At the same time, the petitioners are also not blameless. They have not approached this court promptly. As we have already seen, all these writ petitions came to be filed only after the final results were published. After the order of the Division Bench of Madurai Bench, had they approached this court on time, they would have got relief as it was granted to 64 other candidates. Thus, the petitioners are also guilty of laches. In view of all the above, the writ petitions are liable only to be dismissed as infructuous.
26. In the result, all the writ petitions are dismissed as infructuous. No costs. Consequently, connected MPs are closed.