Hon High Court uphelds plea for awading grace marks to PSU Insurance Officers

 

 

…Four Public Sector Insurance Companies operate in the country – New India Assurance Company Limited, United India Insurance Company Limited, Oriental Insurance Company Limited and National Insurance Company Limited. The promotion policy of all the companies is one and the same and is formulated by the General Insurance (Public Sector) Association of India (GIPSA), New Delhi. The Directors of the four companies constitute this body. As per the ‘Promotion Policy for Officers – 2006’ promulgated by the GIPSA, officers who fell within the zone of consideration for promotion were to be subjected to a screening/filtering process through written tests. The job of conducting these tests was entrusted to the National Insurance Academy, Pune, Maharashtra.

The Academy accordingly conducted written tests for the officers of all four companies on 18.12.2011 at the four metros. Complaints of anomalies in the question papers of the written tests were received by the GIPSA from officers’ associations of the four companies.  The matter was therefore referred to the Academy for remedial action. Upon verification, the Academy found certain errors in the question papers framed by it for the written tests for all four scales and decided to award marks for such erroneous questions to all the officers who had attempted them. The results of the written tests were thereafter published by the Academy on 23.01.2012.

Writ Petition No.3340 of 2012 was filed on 08.02.2012 by the Bharatiya Vima Karmachari Sena (Hyderabad Unit), a registered union, challenging the action of New India Assurance Company Limited in proceeding with the promotional exercise to Scales II to V in the company pursuant to the written tests held on 18.12.2011 without giving moderation/grace marks and without reducing the cut-off mark. A declaration was sought that members of the petitioner union were entitled to grace marks for the questions with wrong answers or reduction of the cut-off mark.

The said union thereafter filed W.P.No.4575 of 2012 on 21.02.2012 against National Insurance Company Limited, Oriental Insurance Company Limited and United India Insurance Company Limited along with the GIPSA and the National Insurance Academy, Pune, with the same prayer. These two writ petitions therefore encompassed all the four Insurance Companies.

Writ Petition No.4623 of 2012 was filed on 21.02.2012 by an Administrative Officer (Scale-I) in New India Assurance Company Limited who appeared for the written test held on 18.12.2011 for promotion to the post of Officer Scale-II. He claimed that he was adversely affected by the incorrect questions and sought a declaration that the action of New Assurance Company Limited, the GIPSA and the National Insurance Academy, Pune, the respondents, in not considering his case for promotion as an Officer Scale–II pursuant to the written test held on 18.12.2011, without giving grace marks or by reducing the cut-off mark was illegal, arbitrary and unjust.

The petitioner union in W.P. Nos. 3340 and 4575 of 2012 stated that written tests were conducted on 18.12.2011 for about 5,000 officers all over India for effecting promotions to 216 posts of Officer Scale II, 140 posts of Officer Scale III, 55 posts of Officer Scale IV and 18 posts of Officer Scale V. The petitioner union asserted that most of the officers in Scales I to IV would be of an average age of 52 years and their performance at the written tests was crucial for promotion to the next scale. While so, the officers who were members of the petitioner union found that about 12 to 14 questions had wrong answers as options. Those who attempted these questions would be awarded negative marks of (-) 1/3^rd for each such question and hardship was therefore caused to them. The marks of the written tests were announced in the 4^th week of January, 2012 and several candidates secured marks in the range of 49.30, 49.60, 49.83 etc. Such candidates were kept out of consideration for promotion as 50% was the cut-off/qualifying mark for being considered in the further process for promotion. The petitioner union pointed out that in the year 2007, in similar circumstances, the respondents had redressed the same by allowing candidates who secured even 20% marks in the written tests to progress further in the process for promotion. However, the same gesture was not extended this time despite large scale anomalies in the written tests. Another ground of challenge was that United India Insurance Company Limited had issued a circular permitting its officers to attempt more than four sections and such information had not been given to officers of the other companies, thereby prejudicing them. The petitioner union alleged that the entire exercise was arbitrary and that necessary action was not taken despite its request to the respondents to reduce the cut-off/qualifying mark from 50% to 40% or in the alternative, grant moderation/grace marks.

In addition to the aforestated pleadings, the petitioner union, in its later challenge in W.P.No.4575 of 2012, stated that it had approached the Secretary, Ministry of Finance, Government of India, on 27.01.2012 with the same request. As no response was received from the Ministry or the respondents, the petitioner union stated that it was constrained to approach this Court once again.

The petitioner in W.P.No.4623 of 2012, while adverting to the factual aspects brought out in the other two writ petitions, stated that he had appeared for the written test on 18.12.2011 at Chennai. According to him, 12 to 14 questions had wrong answers. He secured 49.33%. He was therefore not considered in the further process for promotion as he fell short of the 50% cut-off mark. The legal notice dated 28.01.2012 issued to the respondents, apropos his grievance as to the change in the pattern of the written examination; his request for grace marks or in the alternative, reduction of the cut-off mark, as wrong answers were given for some questions and some were out of syllabus, remained unanswered. He therefore prayed for a declaration that the action of the respondents in not considering him for promotion to the post of Officer Scale II in New India Assurance Company Limited was illegal, arbitrary and unjust.

New India Assurance Company Limited filed its counter in W.P.No.3340 of 2012. The petitioner union’s locus to maintain the writ petition was challenged on the ground that no prejudice or injury was caused to it. It was contended that there was no cause of action for filing of a writ petition through a registered union. It was pointed out that the grievances sought to be espoused in the writ petition were individual problems of the employees and it was therefore for them to come before the Court to seek appropriate relief. While conceding that some of the members of the petitioner union may not have got the necessary marks, the prayer of the petitioner union was challenged on the ground that relief was sought in a sweeping manner without specifying on whose behalf such relief was sought and to whom such relief was to be granted. The company contended that its affected employees would have to approach the Court with specific contentions pointing out the specific instances of errors committed in the written tests and seek necessary relief by pointing out the prejudice/injury caused to them. It was contended that errors in the written tests held on 18.12.2011 were a cause of action individual to the affected employees and not a cause that could be espoused by a representative body.

The company pointed out that the National Insurance Academy, Pune, was an institution of international repute for training, research and education in insurance. The GIPSA, on the other hand, was stated to be an informal mechanism/platform for facilitating discussion, co-ordination and consultation amongst the four Insurance Companies on matters of common interest. It was pointed out that the GIPSA did not have any authority – administrative, supervisory or statutory over the four companies and did not enjoy a separate legal status. Reference was made to the Promotion Policy for Officers – 2006 which came into effect on 02.02.2007 and the process detailed therein for effecting promotions from scale to scale. After the said policy came into force, the Insurance Companies were said to have entrusted holding of the written tests to the National Insurance Academy, Pune, owing to its credentials, through the GIPSA. It was admitted that on 21.12.2011, the GIPSA received mail from the officers’ unions of the four companies complaining of certain mistakes in the question papers of the tests conducted on 18.12.2011 and requesting redressal. The petitioner union was also said to have sent a similar mail. These representations were forwarded to the Academy for doing the needful. Upon examining the issue, the Academy found that certain questions had either incorrect answers or some ambiguity in the language. Accordingly, all candidates who attempted these questions were awarded marks.

While stating that there was no difference in the procedure followed by the four companies, it was pointed out that two of the companies had clarified the position by making it clear that in the case of candidates who chose to answer more than four sections, the best four sections would be taken into account. It was pointed out that the candidates of each company competed only against others in the same company and not those from another company. It was denied that 14 questions had wrong answers. It was pointed out that it was for the management to assess its organizational requirements, including the motivational requirements and aspirations of its employees, while deciding on the qualifying benchmark in any selection procedure and the petitioners’ claim for reduction of the qualifying mark was therefore disputed.

The United India Insurance Company Limited and the Oriental Insurance Company Limited filed counters on the same lines in Writ Petition No.4575 of 2012. In addition thereto, it was contended that the petitioner union had a very small presence, enjoying a membership of a mere 190 out of a total 4,198 officers in National Insurance Company Limited, 166 out of a total 3,710 officers in Oriental Insurance Company Limited and 128 out of a total 4,018 officers in United India Insurance Company Limited. In all, it had a membership of 484 out of a total of 11,926 officers in the three companies, amounting to just 4.06%. The petitioner union’s locus was challenged on this additional ground. The claim in the writ petitions that some of the questions were out of syllabus was castigated as a figment of the imagination as the written tests did not have any prescribed syllabus, being tests for assessing the proficiency in the work of particular scales/cadres. The tests therefore addressed various aspects of practical work of officers in particular cadres in a particular functional area/section.

The National Insurance Academy, Pune, filed a counter in W.P.No.3340 of 2012, echoing the contentions urged by the Insurance Companies as to the maintainability of two of the writ petitions. It claimed that it was an apex Indian institution of international repute for education and research in insurance, set up under the aegis of the Ministry of Finance, Government of India, LIC, GIC and the Insurance Companies, in the year 1980 and was registered as an autonomous institution under the Societies Registration Act, 1860. Initially set up as a training institute for senior executives of the insurance industry, its activities proliferated over the years and presently covered training, research and education. As to the anomalies in the question papers of the written tests held on 18.12.2011, the Academy stated that it examined the representations of the officers’ associations in detail and found that three questions each in the question papers set for Officers Scales I and III and two questions each in the question papers set for Officers Scales II and IV had either incorrect options or suffered from ambiguity of language. Accordingly, all candidates who attempted these questions were awarded marks as if they had answered the same correctly. Only after this exercise, the Academy declared the results on its website on 23.01.2012. The Academy claimed that all necessary and reasonable steps had been taken to ensure that no hardship or injustice was caused to any candidate. It therefore contended that no grounds were made out to interfere with the promotional process initiated pursuant to the written tests held on 18.12.2011.

In its reply to the counter of the Academy, the petitioner union asserted that it had locus to maintain the writ petitions as the written tests were conducted for officers of all four scales in all the four companies and as a union of such officers, it had a right to approach this Court seeking appropriate relief in the light of the anomalies in the question papers of the said tests. It therefore contended that it was a fit case for it to espouse the cause of such officers. The petitioner union pointed out that if an officer failed in the test more than three times consecutively; he/she would not be allowed to appear for the next two tests. The written tests conducted on 18.12.2011 and the process consequential thereto were therefore challenged on the ground that irreparable loss was caused to many officers. The petitioner union attacked the Academy on the ground that it ought to have been more diligent while conducting the tests and once it admitted that there were defects in nearly 10 questions, its casual attitude towards the officers’ grievance was condemned. It was pointed out that the remedy of awarding marks to only those candidates who attempted the wrong questions was untenable as candidates who left such questions unanswered realizing that correct answers were not given lost marks, while those who attempted the said questions in ignorance and gave wrong answers were benefited. This so-called remedial measure was therefore said to be an arbitrary exercise of discretionary power by the Academy. The petitioner union therefore reiterated its prayer for reduction of the cut-off mark or in the alternative, for sanction of moderation/grace marks.

In so far as W.P.No.4623 of 2012 is concerned, New India Assurance Company Limited filed a counter stating that the petitioner had attempted four out of the seven sections in the objective type question paper for promotion as an Officer Scale II, viz., Section-2 (Marine and Aviation), Section-3 (Motor OD & TP), Section-4 (Miscellaneous) and Section-7 (HR including legal). He was said to have attempted two out of the four questions with wrong answers in Section-7 – Question Nos.187 and 200. The petitioner secured 49.33% marks after being awarded two marks for the wrong questions attempted by him. It was therefore stated that no injustice was caused to him and that there was no possibility of his getting any more marks.

The petitioner in W.P.No.4623 of 2012 filed a reply denying that he had attempted only two out of the four questions with wrong answers. He stated that he had attempted more questions, but as the question paper was not given to him, he could not say exactly how many. He therefore asserted that he was entitled to more marks and prayed for allowing his writ petition.

As per the Promotion Policy – 2006, the following amendments were made in the format of the written tests:

“a.      For Scale I and II, the Question Paper shall continue to be 100% objective type. For Scale IV candidates for promotion to Scale V cadre also, the Question Paper shall continue to be 50% objective type and 50% descriptive (bullet answer type questions) type. However, for Scale III candidates, for promotion to Scale-IV cadre, the Question Paper shall now be 75% objective type and 25% descriptive (bullet answer type questions) type, in place of the present 50:50.

 

b.       The objective type part of the Question Paper shall consist of 7 Sections namely, (i) Fire and Engineering, (ii) Marine and Aviation, (iii) Motor (OD TP), (iv) Miscellaneous (other than Motor, Aviation and Engineering), (v) Reinsurance (Treaty, Facultative and Accounts), (vi) Finance (including Accounts, Investment and IT) and (vii) HR (including HR – Legal).

 

c.       The candidate shall be required to choose any 4 out of the said 7 Sections.

 

d.       For Scale I and II, each section shall contain 30 questions, out of which the candidate shall be required to answer any 25 questions, so as to attempt a total of 100 questions in the 4 opted sections, each question carrying one mark.

 

e.       For Scale III, each section shall contain 24 questions, out of which the candidate shall be required to answer a maximum of 20 questions, so as to attempt a total of 75 questions in the 4 opted sections, each question carrying one mark. The balance 25 marks shall be earmarked to be allotted from out of the descriptive type part of the Question Paper.

 

f.        For Scale IV, each section shall contain 18 questions, out of which the candidate shall be required to answer a maximum of 15 questions, so as to attempt a total of 50 questions in the 4 opted sections, each question carrying one mark. The balance 50 marks shall be earmarked to be allotted from out of the descriptive type part of the Question Paper.”

[emphasis added]

 

An officer was required to secure 50 or more marks out of 100 in the written test to qualify for being included in the further process of consideration for promotion. As per Clause 9.2.4 of the Promotion Policy, the examining body had absolute discretion with regard to adopting an appropriate technique/methodology for evaluation and the decision in this regard as also on the results of the evaluation were to be final and binding. Each correct answer to the objective type questions was to be awarded one mark, while each wrong answer carried (–) 1/3^rd mark. The written tests were to be objective or descriptive or both, depending on the scale, and were for a maximum of 100 marks. Basing upon their performance in the written test, officers aspiring for promotion to Scales II to V were to be assessed as under:

“11.1 In assessment, maximum weightage in terms of numerical marks for various criteria shall be worked out as under:

 

Parameter		Scale I to Scale II	Scale II to Scale III	Scale III to Scale IV	Scale IV to Scale V
a)	Written Test	30	30	30	25
b)	Insurance Qualification	5	5	—	—
c)	Work Record	30	35	45	45
d)	Seniority	35	30	25	15
e)	Interview	—	—	—	15
Total		100	100	100	100

 

When W.P.No. 3340 of 2012 came up for admission on 09.02.2012, this Court, taking note of the allegation that only one company had issued circular instructions to its officers that they could answer more than four sections, thereby denying such opportunity to officers of the other companies, and the claim that some answers to the multiple choice questions were incorrect, granted interim stay of all further proceedings pursuant to the written tests held on 18.12.2011 for promotion to higher scales in New India Assurance Company Limited for a period of three weeks.

Thereafter, when these three cases came up on 15.03.2012, this Court took note of the admitted fact that three questions each in the question papers set for Officers Scale I and III and two questions each in the papers set for Officers Scale II and IV had incorrect answers or ambiguity in the language and directed the respondents to seek the opinion of experts to meet the situation and render justice to all the candidates or to consider a proposal for appointing an expert committee to examine the question papers and to come out with a scientific way to solve the problem. It was further directed that all promotions would be subject to the orders to be passed by this Court in future and the respondents were directed not to issue orders promoting the officers unless and until it was absolutely necessary for administrative convenience. In the event such orders were issued, this Court directed that the same should specifically mention that they would be subject to the result of these writ petitions.

Pursuant to the above order, the GIPSA constituted an expert committee under its letter dated 27.03.2012. Sri B.Chakrabarti, a Chartered Accountant by qualification, was a member of this committee. He served as the Chairman and Managing Director of New India Assurance Company Limited, Mumbai, and also National Insurance Company Limited, Calcutta. After his retirement, he was empanelled as a subject expert by the Appointment Committee of the Cabinet for selection of CMDs for Public Sector Insurance Companies. He was also an honorary consultant to the Department of Financial Services, Ministry of Finance, Government of India. The second member of the committee was Sri S.L.Mohan, an Engineer by qualification, who served as the Chairman-cum-Managing Director of Oriental Insurance Company Limited, New Delhi. After his retirement, he was appointed as Secretary General of the General Insurance Council, a statutory body representing the Insurance Industry in India. He was also empanelled as a subject expert by the Appointment Committee of the Cabinet for selection of CMDs for Public Sector Insurance Companies. The third and last member was Sri H.Ansari, a founder member of the Insurance Regulatory and Development Authority. He was also the first Chair Professor of the National Insurance Academy, Pune. After his retirement, he continued as visiting faculty at the Academy and also served on the academic councils of several professional bodies and institutes, being one of the topmost Insurance academicians in the country.

This committee submitted its report dated 05.04.2012 after examining the matter thoroughly.

The terms of reference required the committee to go through all the questions of the written tests conducted on 18.12.2011 and report on such of the questions which were found to be either incorrect or ambiguous, warranting special remedial measures. Having examined the text of all the questions, one by one, the committee was stated to have cleared each question only after there was unanimity that the question/answer was correct and the language was unambiguous. After such examination, the committee found that 10 objective questions were incorrect or ambiguous. As four out of these ten questions were included in the question papers for two scales, the total number of questions with incorrect answers was 14. The committee was of the opinion that in certain questions the language used could have been more appropriate but cleared them as it was possible that the examiner deliberately framed such questions in slightly devious language so as to enhance the difficulty value thereof. The ambiguity of language in such questions was accordingly treated as a result of a deliberate attempt on the part of the examiner. The committee therefore concluded that out of 714 objective questions (210 each for Scales I and II, 168 for Scale III and 126 for Scale IV) and 9 subjective questions, a total of 10 objective questions, 4 of which were repeated in the question papers for another scale, were incorrect or ambiguous. Upon comparing these incorrect or ambiguous questions with the questions found to be so by the National Insurance Academy, Pune, the committee found that 6 out of the 10 incorrect or ambiguous questions detected by it were also identified by the Academy. Apart from these, 4 additional incorrect or ambiguous questions were found by the committee.

In such a situation, the committee was of the opinion that different remedial measures were available. The two most prevalent methods of addressing such situations was to (1) award full marks for the incorrect/ambiguous questions, or (2)  treat the incorrect/ ambiguous questions as non est, i.e., non-existent, and evaluate the candidates for the remaining questions, with a pro-rata scaling up of the score to link it to the maximum score. The committee pointed out that both methods had relative merits and demerits and that it was for the examining body to pick a suitable one.

The committee thereafter addressed the question as to whether such remedy was to be applied to all candidates, irrespective of whether they had attempted the incorrect/ambiguous questions or whether it was to be restricted to only those candidates who had attempted them. The committee was of the opinion that this should depend on whether the questions were all compulsory or whether there was a choice to answer some of the questions. Taking a hypothetical situation where 100 questions were to be attempted compulsorily, the committee found that every candidate would be equally affected by the presence of incorrect/ambiguous questions and therefore, the remedy would have to be applied to all the candidates across the board. In a situation however, where out of 120 questions, a maximum of 100 questions were required to be attempted, the committee was of the opinion that the remedy should be restricted to only those candidates who attempted the incorrect/ambiguous questions. The committee opined that it would otherwise result in putting those candidates who had not attempted the incorrect or ambiguous questions at an unfair advantage.

As in the present case, the officers had a choice of answering the objective type questions; the committee was of the opinion that the remedial measure adopted by the Academy of awarding marks to only those who attempted the incorrect questions was appropriate and equitable. However, as four more questions were found by it to be defective, the committee recommended that the same treatment should be accorded to those questions also. The committee ended the report with a word of caution that though the errors found were inadvertent and were a result of peculiar circumstances, the enormity of the effect of such errors, however bona fide or inadvertent, needed to be highlighted and the examining body, the National Insurance Academy, Pune, was advised to take appropriate steps in future.

Upon this report being filed, the petitioner union filed affidavits dated 15.04.2012 in W.P.Nos.3340 and 4575 of 2012. Therein, it attacked the credibility of the report on the ground that the experts who constituted the committee were hitherto associated with the Insurance Companies or the National InsuranceAcademy, Pune. The petitioner union pointed out that though the Academy had found only ten questions to be incorrect, the committee had detected four more wrong questions. The petitioner union stated that it had enquired further with its members and other colleague officers who appeared for the written tests on 18.12.201 and as they recalled, there were fourteen more questions with wrong answers. The petitioner union therefore stated that it was not known as to how many more such questions would emerge if verification was undertaken by an independent external body like the Insurance Institute of India, Mumbai. The petitioner union pointed out that there were other remedial measures to redress the situation. Reference was made to the NEET-MBBS examination conducted by the Medical Council of India in 2011, wherein percentile basis was adopted. In this methodology, the highest marks scored in the examination would be taken to be the basis and the percentage of pass marks/cut-off marks would be scaled down basing on such highest marks. Reference was also made to the system adopted by the Symbiosis International University, Pune, where all students were awarded marks for wrong questions irrespective of whether or not they had attempted the same. The petitioner union stated that the same strategy was adopted by the I.I.T., Kanpur. It was pointed out that the respondents themselves had followed the percentile basis formula in previous promotional exercises when they could not find sufficient candidates. The petitioner union therefore prayed for a direction to the respondents to constitute a committee from an external independent body and include the members of the petitioner union as well as other officers’ associations from the four companies, for examining the question papers so as to come out with a proper method to resolve the issue.

The matters then came up before this Court on 19.04.2012. Taking note of the admitted discrepancies in the answers given as options to some of the multiple choice questions and the fact that wrong answers carried negative marks, this Court directed the respondents to refer the matter to the Director, Insurance Institute of India, Mumbai, to constitute an expert committee and requested the committee to come up with a pragmatic suggestion so that justice could be done to all the candidates who attempted such questions and also those who left such questions. This exercise was directed to be completed within a time frame.

Pertinent to note, it was after considering the expert committee’s report dated 05.04.2012 and the petitioner union’s affidavits dated 15.04.2012 that this Court, by order dated 19.04.2012, directed the respondents to refer the matter to the Insurance Institute of India, Mumbai. This suggestion had actually fallen from the petitioner union itself in its affidavits 15.04.2012. It may however be noticed that the terms of reference as per the order dated 19.04.2012 did not require the Insurance Institute of India to examine the question papers afresh as was directed earlier in the order dated 15.03.2012. The Insurance Institute of India was merely asked to constitute a committee which was to come up with pragmatic suggestions, so that justice could be done to all the candidates who attempted the incorrect questions and also those who left them.

Pursuant to this order, the Insurance Institute of India constituted a committee to look into the matter and the report of the committee so constituted was forwarded under letter dated 31.05.2012. This committee comprised Sri P.K.Rath, Director; Dr.George E Thomas, Associate Professor (Non-Life); and Dr. (Mrs.) G.Bharathi Kamath, Associate Professor (Economics); all from the College of Insurance, Insurance Institute of India, Mumbai. The committee had across the table discussions with officials of the University of Mumbai; the Directorate of Medical Education and Research, Government of Maharashtra; and other examining bodies to find out the practices followed by them in similar situations where questions were posed with wrong answers or with inappropriate language. Salient features of the tests conducted by the National Insurance Academy, Pune, were held to be the deciding factors to resolve as to how the problem should be addressed. The objective type questions were found to be of multiple choice with positive marks (+1) if correct, and negative marks (-1/3) if incorrect. Cut-off marks were fixed for qualifying in the tests. The various situations considered by the committee, as enumerated in the report, are as under:

“Various Situations Considered:

 

a. Candidates had no reason to expect questions to be wrong, so they attempted hem. They should not suffer due to mistakes in question paper setting.

 

b. Candidates, who knew that the question was wrong, chose the closest available option, (e.g. In case of an employee benefit that was revised, candidates would have selected the wrong answer as that was the closest option, which was correct at the time when the question was set.)

 

c. Candidates, who knew that the question was wrong, did not attempt it.

 

d. Candidates, who did not know the answer, attempted the question.

 

e. Candidates, who wasted their time trying to solve a question that had no correct answer.

 

f. Candidates, who selected some of the groups, were affected more, as the numbers of wrong questions were different from group to group.”

 

The committee opined that though there were different solutions for addressing this situation, there could be no single solution that would be fully fair to all the candidates in absolute terms. Giving an example, the committee stated thus:

“E.g.: Situations mentioned at 1.(e) ‘Candidates, who wasted their time trying to solve a question that had no answer’ and left a few questions un-attempted and the emotional fallout thereof cannot be addressed. Also, any decision that is taken would have a different impact on candidates who selected the domains/groups having wrong questions, and those who selected the groups without wrong questions. Solutions to address these candidates may not be fair to candidates who could identify the wrong questions and answered all 100 correct questions.”

 

After stating the various possible solutions, the committee stated that it was guided by the solution that emerged from GURU NANAK DEV UNIVERSITYV/s. SAUMIL GARG^[1]. The committee opined that the essence of this judgment was that wrong questions, whether attempted or otherwise, should not be treated as part of the question paper. The committee therefore felt that this approach addressed the situation in the most equitable manner. It therefore suggested the ‘ideal solution’ as under:

“The Ideal Solution: It is recommended to the Hon’ble Court that in respect of those who selected the domains/groups having wrong questions, the number of wrong questions (and negative marks thereon) may not be treated as part of the question paper and may be removed. The cut-off level and scores would stand correspondingly reduced. The entire set of answers may be                                           re-evaluated/reassessed on the lines mentioned above to eliminate mechanical/clerical level errors. For maintaining parity, the scores have to be worked on a percentage basis and declared out of 100.”

 

However, the committee felt that in the given scenario, the matter had to be considered with a touch of sympathy as the candidates were not forewarned about the possibility of wrong questions appearing in the question paper and hence, on a humanitarian point of view, the most ‘pragmatic solution’ would be as under:

“The Pragmatic Solution: In respect of those who selected the domains/groups having wrong questions, marks should be granted for all the wrong questions (negative marks would not apply) whether the wrong questions were answered or not. Technically, it can be argued that this solution could allow some candidates to get a score higher than the number of questions that they actually attempted. This situation can be rationalized by stipulating that the maximum marks that can be granted would be limited to 100.”

 

Stating that there were no known standard practices for redressing such situations, the committee observed that it was desirable that the Court set a few standard practices for different contexts.

The Insurance Institute of India, however, by its letter dated 09.06.2012 responded to the GIPSA’s query, under letter dated 07.06.2012, with regard to the actual practice in vogue in the event some questions were found wrong or ambiguous in multiple choice questions, stating that the practice adopted by the Institute was that if any questions were found wrong, marks were awarded to only those candidates who attempted such wrong questions treating them as having been answered correctly.

Sri Vedula Srinivas, learned counsel for the respondents, was asked to furnish details of all the questions found to be incorrect. The learned counsel furnished information as under:

SCALE	QUES.NO. & SECTION	QUES.NO. & SECTION	QUES.NO. & SECTION	QUES.NO. & SECTION
SCALE I TO II	Q.No.2 (Fire & Engg.)	Q.No.187 (HR & Legal)	Q.No.190 (HR & Legal)	Q.No.200 (HR & Legal)
SCALE II TO III	Q.No.34 (HR & Legal)	Q.No.38 (HR & Legal)	Q.No.39 (HR & Legal)	–
SCALE III TO IV	Q.No.149 (HR & Legal)	Q.No.151 (HR & Legal)	Q.No.163 (HR & Legal)	–
SCALE IV TO V	Q.No.22 (HR & Legal)	Q.No.23 (HR & Legal)	Q.No.29 (HR & Legal)	Q.No.131 (HR & Legal)

 

This, then, is the knotty problem presented for resolution. This Court is not impressed by the contention urged by the learned counsel for respondents as to the maintainability of the writ petitions. Whatever be the status of the petitioner union, the fact remains that it is a registered union of officers working in the four Insurance Companies. The cause sought to be espoused through the petitioner union’s writ petitions pertains to the officers of different scales who appeared for the written tests on 18.12.2011 for promotion to the next higher scale. Admittedly, there were anomalies and irregularities in the question papers set for these tests for every scale. The grievance therefore cuts across the different scales and a recognized union of officers can indubitably espouse their cause. It would not be necessary for each individual officer to come forth separately with a writ petition. The grievance being common to all officers, a single writ petition through a union would suffice. The contention of the learned counsel as to maintainability of these writ petitions is therefore rejected.

The argument of Sri Vedula Srinivas, learned counsel, that the petitioner union is only a minority union having minimal presence in terms of membership is also not sufficient to discredit the petitioner union’s locus for maintaining its writ petitions. Being a recognized union, the petitioner union would be entitled to espouse the cause of its members irrespective of the strength of its membership. The absence of majority unions would therefore not have the effect of denuding the petitioner union of its locus.

The further contention of the learned counsel for the respondents that results were declared prior to the institution of the writ petitions but affected parties were not impleaded is not a ground to deny relief to the petitioners. When irregularities/anomalies in the question papers framed for the written tests were squarely attributable to the respondents and they cut across all four scales in the Insurance Companies, it is not necessary to implead the officers who passed the written tests. The judgment of the Supreme Court in PRABODH VERMA V/s. STATE OF U.P.^[2] relied upon by Sri Vedula Srinivas, learned counsel, with regard to non-joinder of necessary parties, is of no avail to him as the present case is not one where adjudication of the matter adversely affects any particular individual. The entire process of selection was tainted owing to the incorrect/ambiguous questions set for the written tests held on 18.12.2011. The issue is therefore not individual to any particular officer. Further, though this matter has been pending on the file of this Court since 09.02.2012 and promotions were effected by the Insurance Companies only thereafter, by virtue of the interim order dated 15.03.2012 passed in W.P.No.3340 of 2012 making such promotions subject to these cases, none of the officers so promoted, who must be presumed to be aware of this litigation, have chosen to come before this Court. The plea of non-joinder as a ground for dismissing the writ petitions is therefore not acceptable.

That being said, this Court is equally unimpressed by certain contentions urged by Sri Motupalli Vijaya Kumar, learned counsel for the petitioner union in W.P.Nos.3340 and 4575 of 2012. The learned counsel argued that this Court should direct the respondents to furnish copies of the question papers to the petitioner union, so that further enquiry could be made as to the possibility of other questions being incorrect. Admittedly, this issue is seized by the High Courts of Madras and Delhi where specific prayers were made in this regard. In the present case, no such prayer is made in any of the writ petitions. Further, the learned counsel contended that the report dated 15.04.2012 of the first committee is inconclusive owing to the constitution of the body. He pointed out that the Insurance Institute of India, Mumbai, did not undertake a detailed examination of the question papers for ascertaining the total number of wrong questions and contended that as the first committee itself had found four additional questions to be wrong over and above those detected by the Academy there was every possibility that some more questions would be found incorrect if verification was undertaken by an independent body.

It is however to be noticed that the petitioner union did not raise this issue when this Court, by order dated 19.04.2012, directed the respondents to refer the matter to the Insurance Institute of India, Mumbai, for constituting a committee to come out with pragmatic suggestions. It is relevant to note that in the earlier order dated 15.03.2012, this Court explicitly called upon the first committee to examine the question papers and thereafter come out with a scientific way of solving the problem. Such a direction was however not issued on 19.04.2012. As pointed out earlier, the matter was merely referred to the Insurance Institute of India, Mumbai, for coming out with pragmatic suggestions, perhaps owing to the suggestion made by the petitioner union itself in its affidavits dated 15.04.2012. Both these orders were passed in the presence of the learned counsel for the petitioner union. Having failed to raise the issue of again referring the question papers to the Insurance Institute of India at that point of time, it is not open to the petitioner union to seek fresh examination of the question papers by an independent agency once more. The matter having already been referred to two committees, this Court is not inclined to initiate a roving enquiry.

In so far as the Circular dated 14.12.2011 of United India Insurance Company Limited is concerned, it is pointed out that National Insurance Company Limited also issued instructions stating that if an officer attempted more than four sections, the best four would be taken for evaluation. In any event, this aspect of the matter does not require consideration as there is no evidence of any officer from the other two companies being prejudiced in terms of not being permitted to answer more than four sections or not having the best four sections, if attempted, taken into consideration. There is also no indication that any officer was under the impression that he could not answer more than four sections. Further, it was only in the event sufficient time was available that an officer would attempt more than the required number of sections. The same is not demonstrated on facts. This ground therefore fails.

The other contention of Sri Motupalli Vijaya Kumar, learned counsel, is that the respondents ought to adopt the percentile basis method for redressing the situation or in the alternative, the practice adopted by various other institutions/organizations of awarding marks for all incorrect questions. It is however not for this Court to undertake such an exercise on behalf of the respondents. As this Court has already called for suggestions from the Insurance Institute of India, Mumbai, which has submitted its report indicating various options, the course available to this Court would be to choose one of them and not to advocate any other methodology adopted by other institutions/organizations.

In GURU NANAK DEV UNIVERSITY¹, the Supreme Court was dealing with anomalies in the Punjab Medical Entrance Test held by the University. Key answers to eight questions were admittedly incorrect. Faced with this situation, the Supreme Court observed as under:

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

 

12.     There is yet another problem, namely, that of seven questions which are so vague that they are incapable of having a correct answer. The appellant University, in respect of those seven questions, has given the credit to all the students who had participated in the entrance test irrespective of whether someone had answered the questions or not. We do not think that that is the proper course to follow. It is wholly unjust to give marks to a student who did not even attempt to answer those questions. This course would mean that a student who did not answer say all the seven questions would still get 28 marks, each correct answer having four marks. The reasonable procedure to be followed, in our opinion, would be to give credit only to those who attempted the said questions or some of them. Having regard to the circumstances of the case, we direct that for the students who attempted those questions or some of those questions, insofar as they are concerned, the said questions should not be treated to be part of the question paper. To illustrate, if a student answered all the said seven vague questions, insofar as that student is concerned, total marks would be counted out of 772 i.e. 800 less 28 and likewise depending upon number of such questions, if any, answered by the student. …”

 

The Insurance Institute of India, Mumbai, admittedly a premier institute, constituted the second committee which submitted its report putting forth an ‘ideal solution’ and in the alternative, a ‘pragmatic solution’. The various situations considered by the committee, as set out supra, encompass all the possible aggrieved candidates and this Court must necessarily take into account all of them while choosing the solution to resolve this problem.

It must be noticed that the scheme of the question papers in the present case was unique. Not only was there a choice in answering the objective type questions, but there was a division of such questions into sections. There were, in all, seven sections and officers were required to choose four out of the seven. In so far as Scale I and II Officers were concerned, each section was to contain 30 questions out of which the officer had to answer any 25 questions. In effect, the officer was to attempt 100 questions in the four selected sections; for Scale III Officers, each of the four sections was to contain 24 questions, out of which the officer had to answer a maximum of 20 questions so as to attempt a total of 75 questions from the four opted sections; for Scale IV Officers, each section was to contain 18 questions, out of which the officer had to answer a maximum of 15 questions so as to attempt a total 50 questions from the four opted sections. There was, thus, a choice of opting for four out of seven sections and within each section, there was again a varying choice of answering a particular number of the questions available therein.

This unique factor differentiates the present case from that before the Supreme Court in GURU NANAK DEV UNIVERSITY¹. In that case, 200 objective questions were posed to the candidates, 50 each for Physics, Chemistry, Botany and Zoology. Not all the questions were required to be answered. Eight questions had wrong key answers. In this scenario, the Supreme Court opined that it would be unfair to give marks to a student who did not attempt the incorrect questions. The Supreme Court accordingly directed that the reasonable procedure to be followed would be to give credit only to those who attempted the said questions or some of them.

The situation presently is however not so simple. The incorrect/ ambiguous questions detected by the first committee and the Academy, as stated supra, were mostly from Section No.7 i.e. (HR, including Legal) – 13 out of the 14 incorrect questions were from this section. The other incorrect question was from Section No.1 pertaining to Fire and Engineering and was in the question paper set for Scale I Officers. As the officers had the choice of choosing four out of the seven sections, applying the rationale of GURU NANAK DEV UNIVERSITY¹, those who did not attempt the tainted sections would not be entitled to any additional marks. However, those who chose to attempt either Section-1 or Section-7 again had a choice of selecting the stipulated number of questions therefrom, in the context of the scale to which they belonged. As pointed out earlier, for Scales I and II, the officers had to answer only 25 out of 30 questions, while Scale-III Officers had to answer upto a maximum 20 questions out of 24 and Scale-IV Officers had to attempt a maximum of 15 out of the available 18 questions.  There would therefore be officers who initially attempted these tainted questions but having realized that the answers given were incorrect, moved on. However, having attempted other questions it is very well possible that they could have given wrong answers whereby they not only lost out marks but also invited negative marks. Had the answers to the tainted questions been correct, they may have answered the same correctly and gained marks. It would therefore be unjust to leave out such officers and award marks only to those officers who attempted and incorrectly answered the wrong/ambiguous questions. Such officers were obviously less deserving than those who realized that the questions were incorrect or ambiguous and left the same, but they stand to be rewarded for their ignorance and for having wrongly answered such questions. This would amount to gross injustice.

In such a situation, this Court is of the considered opinion that the pragmatic solution offered by the Insurance Institute of India, Mumbai, would be more appropriate to redress the situation. Thereby, those who selected the sections having wrong questions would be entitled to marks for all the wrong questions irrespective of whether or not they attempted such questions. In the event, these officers score higher marks than actually attempted by them, the situation could be rationalized by stipulating that the maximum marks that could be granted would be limited to 100% for that section.

It is the contention of Sri Vedula Srinivas, learned counsel, that once the Academy adopted a particular solution as being the best to address the situation, it is not for this Court to review the same unless it is shown to be wholly illegal or arbitrary. Learned counsel placed reliance on the observations of the Supreme Court in DWARKADAS MARFATIA AND SONS V/s. BOARD OF TRUSTEES OF THE PORT OF BOMBAY^[3]:

“31. … … It is not within the purview of a court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one. Learned Addl. Solicitor General, in our opinion, is therefore right in contending that the appellant should not be allowed to contend that the decision of the Bombay Port Trust to allot the plot to the major holder is not one of the feasible means of achieving the objectives of development. It was not open to the appellant to contend that the Bombay Port Trust could have framed a better policy in a way in which both the goals, development and non-eviction of existing tenants, could have been achieved.”

 

It is however to be noticed that the second committee constituted by the Insurance Institute of India, Mumbai, demonstrated the illegality and injustice that would result in the event only candidates who answered the incorrect/ambiguous questions were awarded marks. That being so, it would mean that those officers who were ignorant of the right answers to these incorrect questions and answered them wrongly would be rewarded, while those who realized that the answers were incorrect and moved on to other questions but answered them wrongly, would be punished. This cannot be the purport of a fair process of selection. The remedial measure adopted by the National Insurance Academy, Pune, therefore fell short of addressing this aspect of the matter and caused injustice to such officers. The decision cited is therefore of no avail to the learned counsel.

It is stated that the Insurance Companies have already effected promotions pursuant to the written tests held on 18.12.2011. However, the promotions so effected were subject to further orders in these writ petitions. Therefore, the exercise as indicated supra would have to be undertaken to identify the deserving officers who were left out owing to award of marks only to such officers who answered the incorrect/ambiguous questions.

In so far as Writ Petition No.4623 of 2012 is concerned, the counter of the New India Assurance Company Limited reflects that the petitioner fell short as he secured 49.33% in the written examination as opposed to the requisite 50%. However, the petitioner admittedly attempted Section-7, i.e., HR including Legal, in the question paper set for Scale-I Officers, which had three incorrect questions, but he attempted only two out of the three wrong questions – Questions 187 and 200. However, as per the statement of incorrect/ambiguous questions furnished to this Court, there was one other incorrect question in Sectin-7 of the question paper set for Scale-I Officers i.e. Question No.190. As this Court holds that officers who attempted the tainted sections should be awarded marks for all the wrong questions therein, irrespective of whether or not they attempted all the wrong questions, the petitioner would be entitled to one more mark for Question No.190 in Section-7. With this additional mark, he would cross the 50% cut-off mark and would be entitled to be considered in the further process for promotion to the next higher scale. This writ petition is therefore allowed directing the New India Assurance Company Limited to consider the case of the petitioner in the further promotional process and decide whether he is eligible for promotion to the next higher scale. This exercise shall be completed expeditiously and in any event, not later than two (2) months from the date of receipt of a copy of this order.

W.P.Nos.3340 and 4575 of 2012 are disposed of with a direction to the respondents to award marks for the incorrect/ ambiguous questions to all the officers of Scales I, II, III and IV who attempted the tainted sections, namely, Sections-1 and 7. After awarding such marks in the manner indicated above, the respondents shall verify whether such officers surpassed the 50% cut-off mark and include those who were successful for further consideration in the promotional process. This exercise shall be completed expeditiously and in any event, not later than two (2) months from the date of receipt of a copy of this order. WPMP Nos.4177, 4178 and 13337 of 2012, WVMP Nos.676 and 710 of 2012 in W.P.No.3340 of 2012; WPMP Nos.5844, 5845, 13338 and 25860 of 2012, WVMP Nos.795 and 796 of 2012 in W.P.No.4575 of 2012; and WPMP No.5907 of 2012 in W.P.No.4623 of 2012, shall stand disposed of in the light of this final order. No order as to costs.