Orissa High Court
Dibya Jyoti Nanda vs Central Board Of Secondary on 24 July, 2018
Equivalent citations: AIRONLINE 2018 ORI 292
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 9890 of 2018
In the matter of an application under Articles 226 and 227
of the Constitution of India.
AFR
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Dibya Jyoti Nanda ..... Petitioner
-Versus-
Central Board of Secondary-
Education (CBSE)and another ..... Opp. Parties
For Petitioner : M/s. S.J. Nanda, P.K. Mishra and
N. Panda, Advocates
For Opp. Parties : M/s. T.N. Pattanayak and
M. Ojha, Advocates
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 24.07.2018
------------------------------------------------------------------------- VINEET SARAN, CJ. On 20.07.2018, this Court directed that the matter to be listed today as Shri T.N. Pattanayak, learned 2 counsel for the opposite party-CBSE had request to allow the Director, NEET, CBSE to appear before this Court to explain the discrepancy in the marking/evaluation of the OMR answer sheet of the petitioner. Since this case was not placed in the regular list, a mention was made by Shri T.N. Pattanayak, learned counsel for opposite party no.2-CBSE in the morning hour that the Director, NEET is present as the date was fixed to today and, on his request, the case is taken up as a Special Notice matter in presence of learned counsel for the petitioner.
2. The brief facts of this case are that the petitioner had appeared NEET (UG)-2018 Examination conducted by the CBSE for admission in MBBS Course. He was allowed registration no.40236074, roll no.50990308 and test booklet no.2281248, having examination centre at St. Xaviers High School, Mahima Nagar, Naya Bazar, Cutack. The date of examination was 06.05.2018. He was issued with an admit card to appear at such examination. The petitioner performed the examination to his satisfaction and ultimately the CBSE published the result of the NEET (UG)- 2018 in due time. CBSE, in its website on 25.05.2018, also 3 published the answer key of questions, so also OMR sheet of the candidates for verification, as well as for appeal, in case of any error was found by the candidates. The petitioner, on verification, found two errors and challenged the same on payment of requisite fees. The petitioner specifically challenged that the answer as per the CBSE answer key in respect of question no.146 (Chemistry) was option no.4 and he blackened the said option no.4, but mark against the said question was not awarded to him. Secondly, in Physics from question no.1 to 45 was answered by the petitioner and on re-consideration of the questions, OMR sheet and answer key, the petitioner is entitled to get 102 marks, but in the result published on 05.06.2018, he was awarded with only 97 marks. Even though the petitioner filed objection, the same was not considered in proper perspective. Finding no other way out, the petitioner approached this Court by filing the present application.
3. Shri S.J. Nanda, learned counsel appearing for the petitioner contended in course of hearing that besides blackening of the circle of the option in the OMR sheet, which the petitioner had given for answers to Questions 4 No.61, 146 and 147, there were certain dot marks in other option columns, because of which, though the answer to Question 147 was accepted and taken as correct, but the answers to Questions No.61 and 146 were negated, even though dot marks (as noticed by this Court vide order dated 13.07.2018 after having examined the original OMR sheet) with regard to Questions No.61 and 146 were lesser than the one in the answer to Question No.147. Thus, it is contended that the petitioner is entitled to get mark against question no. 61 and question no. 146 so as to enable him to score higher marks so that he can get better institution for admission. It is further contended that on the basis of the result published, the petitioner had also taken admission to the VSS Medical College, Burla, but in the event the marks will be enhanced, he may exercise his option for up- gradation of institution and prosecute the studies in a better institution than the present one. Therefore, being aggrieved by the evaluation of his answer script, which was on OMR sheet, the petitioner has filed this writ petition claiming that the answer to Questions No.61 and 146 have 5 wrongly not been evaluated and negative marks awarded, even though the answers to Question No.146 was correct.
4. Shri T.N. Pattanayak, learned counsel appearing for the CBSE, with reference to counter affidavit, contended that Clause-4 of Chapter-7 of the Information Bulletin deals with rules for re-checking/re-evaluation of answer sheets and reasons thereof are stated therein. Chapter-7 deals with post examination activities and declaration of result, wherein provision for display of OMR sheets and responses on website is provided for. The answer key of the CBSE is also displayed to challenge the respective questions they are dissatisfied with. It is further contended that 108 questions comprising of 45 questions from Physics, 45 from Chemistry and 90 from Biology i.e. (45 Zoology and 45 Botany) and there are 4 marks allocated for each correct answer and 1 mark is deducted for each incorrect answer. On the basis of performance of the candidate, the result has been accordingly prepared and as per such instruction, the candidate has secured 97 marks in Physics, 122 marks in Chemistry and 133 marks in Biology. The opposite parties, by public notice dated 24.05.2018, invited objections to the 6 responses marked by the candidates in the OMR sheets, answer key and the test booklet of the candidates. It is contended that when the result was published on 04.06.2018, the marks awarded to the petitioner was very much in consonance with his performance. Therefore, this Court should not interfere with the marks awarded to the petitioner in the NEET (UG)- 2018 examination.
5. We have heard Shri S.J. Nanda, learned counsel for the petitioner and Shri T.N. Pattanayak, learned counsel appearing for CBSE. Pleadings between the parties having been exchanged, with their consent, the matter is being finally disposed of at the stage of admission taking into consideration its urgency.
6. While assessing and evaluating the answer key of the NEET examination, it has been allegedly found by CBSE that the petitioner, while marking his responses by blackening the oval circles on the OMR sheet against question no. 61 and question no.146, has given two responses as there are dot marks in other option also. Consequentially, the negative marking has been done as per 7 instructions in the Information Bulletin. It is not disputed that if the answer to Question No.61 is evaluated as per the blackening of the option given by the petitioner, the answer would still remain wrong and the petitioner would thus be awarded minus 1 mark. However, answer to Question No.146 has also been negated by the opposite party-NEET, CBSE and the petitioner has been awarded minus 1 mark merely because there were some dots in another option, besides the one which was blackened by the petitioner, and the petitioner has been awarded minus 1 mark, whereas the answer given by the petitioner by blackening his option was correct and he ought to have been awarded plus 4 marks. In the case of Question No.147, the blackening of the option given by the petitioner was correct, whereas there were more dot marks in the other option than the one which was blackened by the petitioner, but that answer is admittedly taken as correct and the petitioner has been correctly awarded plus 4 marks.
7. The dispute in the present case is that the petitioner has been awarded minus 1 mark to Question No.146. By order dated 10.07.2018, the original OMR sheet 8 of the petitioner was directed to be placed before us, as the photocopy filed by the petitioner along with the writ petition (which was obtained by him through the website of the CBSE) was not very clear. On examining the original OMR sheet of the petitioner, which was placed before us by Shri Bikash Arora, Asst. Secretary, NEET Unit of CBSE, this Court on 13.07.2018 passed a detailed order, which is reproduced as under:
"In compliance to Court's order dated 10.7.2018, the original OMR sheet has been placed before us.
2. We have noticed from the said original OMR sheet that in response to the question no. 61, answer is clear as there is complete blackening of option no.1. There is a dot or two on the option no.3 of the said question, and thus, negative mark has been given for such question. Further with regard to questions no.146 and 147, there are some dot marks in other option beside the one which has been totally blackened. The question no. 147 had been evaluated as per the option of the petitioner given by blackening of the entire circle, even though there is a bigger dot mark in the other option than that of question no.61. However, in the case of question no. 146, where there also is admittedly a small dot mark in the other option, even when the option no. 4 had been totally blackened, the petitioner has been awarded negative mark. From a bare perusal of the order sheet, the defect in question nos. 146 and 147 is the same, 9 whereas question 147 has been found to be in order but for question 146 negative mark has been awarded for the same defect.
3. Sri Pattnaik, learned counsel for the opposite party, however, could not justify the rejection of the option given by the petitioner with regard to questions no. 61 and 146, especially when the option given by the petitioner with regard to question no. 147 had been accepted.
4. Sri Bikash Arora, Asst. Secretary, NEET Unit of CBSE, Delhi is present in Court and has submitted that this is a mistake by the Computer for which CBSE is unable to do anything.
At this stage, Sri Pattnaik sought time to seek further instruction in this regard as it cannot be denied that there has been discrepancy in the evaluation of OMR sheet of the petitioner.
5. On his request, list this matter on 16.7.2018 amongst the top five cases under the heading "Fresh Admission".
8. Then on 16.07.2018, this Court passed the following order:
"An affidavit of the Asst. Secretary, CBSE has been filed today, in which no explanation with regard to discrepancy noticed by this Court in its order dated 13.07.2018 has been given On 13.07.2018, this Court passed a detailed order after examining the OMR sheet, which was placed before this Court. On that date, the Asst. Secretary, NEET Unit of CBSE, Delhi was present in Court and had submitted 10 that "this is a mistake by the Computer for which CBSE is unable to do anything". Sri T.N. Pattnaik, learned counsel appearing for the opposite parties-CBSE had on that date sought time to seek further instructions, as it could not be denied that there has been discrepancy in evaluation of OMR sheet of the petitioner.
Today Sri Pattnaik, learned counsel for the CBSE has, on having received telephonic instruction from Dr. Sanyam Bhardwaj, Director NEET unit of CBSE, Delhi, made a statement that the Director, NEET shall file an affidavit in this regard by 20.07.2018 and shall also be present in Court to explain the discrepancies. Sri Pattnaik has, on having received instruction, further stated that till 20.07.2018 further round of counseling all over India shall not be held, as the same has already been stayed by the Madurai Bench of the Madras High Court.
In view of the aforesaid statement given by Sri Pattnaik, we are not passing any interim order at this stage, as it has already been stated that no further counseling all over India will take place till next date i.e. 20.07.2018.
List on 20.07.2018 amongst top five fresh admission cases."
9. Thus the matter was adjourned to 20.07.2018, which was on the request of Shri T. Pattanayak, learned counsel for the CBSE, to enable the Director, NEET to be present in Court.
10. The matter was again adjourned on 20.07.2018 for today, when an affidavit has been filed by Shri Sanyam 11 Bhardwaj, Director (Academic & NEET) CBSE, who also is present in Court.
11. Shri Sanyam Bhardwaj, Director (Academic & NEET) CBSE has addressed this Court to explain the discrepancies. Unfortunately, he has not brought the original OMR sheet of the petitioner which was examined by this Court on 13.07.2018, but has agreed with the observation made by us in our order dated 13.07.2018. He has, however, stated that the discrepancy/mistake is because of the evaluation by the computer, which could have been because of power fluctuation or because of there being dust particles, which may have spread over OMR sheet, which could have happened because of working of large number of scanners at the same time. He has further stated that if this Court interferes in this matter, it would open a pandora box as a large number of petitions could be filed.
12. In the affidavit filed today, he has tried to explain the discrepancy in sub-paragraphs-(xvi), (xvii), (xviii) & (xix) to paragraph-3, which are reproduced below: 12
"(xvi) In case of the method of giving correct responses, the information is given in Chapter 5 of the Information Bulletin at page no.16 by giving examples of marking the answers.
(xvii) In case of the petitioner question no.61, 146 & 147, these all falls under the category of 0 to 8 of the wrong method of marking answers, accordingly all should be evaluated as per rule position i.e. if more than one circle is darkened or if the response is marked in any manner as shown above heading indicating wrong method shall be treated as wrong way of marking.
More than one answer indicated in the question will be treated as incorrect response and will be negatively marked.
(xviii) As per the said rule number scanning both the scanners have read the question number 61 & 146 as multiple answers and thus -1 marks per question has been deducted. However, in case of question no.147 corrected one i.e. 3, has been picked up by both scanners and thus +4 marks have been awarded to the petitioner, thus being the wrong method of marking answer.
(xix) Even during the challenge of the responses by the petitioner as petitioner was awarded 4 marks, the benefit has been given to the petitioner by not reducing 4 marks from the total and there after deducting 1 mark as wrong method of answer. With this the petitioner has get the benefit of 5 marks."
13. In All India Council for Technical Education v. Surinder Kumar Dhawan, (2009) 11 SCC 726 the apex Court, while considering the Court's role in academic matters, has firmly expressed its opinion to the effect that if it is a question of educational policy or an issue involving 13 academic matter, the Courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the Courts will step in.
14. In Sanchit Bansal v. Joint Admission Board, (2012) 1 SCC 157, the Supreme Court broadened further the area of interference and observed that the Courts will interfere if they find all or any of the following: (i) violation of any enactment, statutory rules and regulations; (ii) mala fide or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone or (iii) where the procedure adopted is arbitrary and capricious.
15. This Court is very much conscious about its power of interference in award of marks in the examination conducted by the CBSE, i.e., NEET (UG)-2018. But considering the nature of marks awarded, as discussed above, this Court cannot sit as a mute spectator and cannot tie its hands when it finds that gross illegality and irregularity has been committed on the basis of procedure adopted by the authority, which is arbitrary and capricious. 14 In case where mistake is glaring, the Court has got every power to step into the issue when it pricks its conscience that an illegality has been done to a candidate. Even though the petitioner has answered correctly by blacking the correct answer, but no mark has been award or rather negative mark has been awarded on flimsy ground of computer evaluation because of voltage fluctuation or presence of the dust particles or some spots found in the OMR sheets, by which a negative mark has been awarded to the petitioner. Marks awarded by the computer cannot be taken into consideration as absolute. Because of the machinery error if some wrong has been committed, in such case the human analysis should be made to the answer given by a candidate.
16. In the present case, on verification of the OMR sheet of the petitioner, the mistake committed by the computer in evaluation of marks to Question No.146 is apparent and admitted by the opposite parties. The same cannot be condoned or ignored by the Court on the casual explanation given by the opposite party that the mistake by the computer could have been because of voltage 15 fluctuation or dust particles on the OMR sheet. It is a serious matter which affects the educational career of a student, and once such a glaring mistake has been brought to the notice of this Court and not been properly explained by the authorities, this Court cannot shut its eyes and let the student suffer.
17. A casual submission made by the Director, NEET, CBSE, that if this Court interferes in this matter it would open a Pandora box, should not hold the Court back from granting relief in a genuine case where discrepancy in evaluation of marks has been found and not explained by the authorities.
18. Therefore, in view of the facts of this case and the law laid down by the apex Court, as discussed above, and applying the same to the factual aspects of the case in hand, since there has admittedly been discrepancy in evaluation of marks in OMR sheet of the petitioner, which is arbitrary and capricious, this Court deems it proper to interfere with the same in greater interest of justice, equity and fair play.
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19. Accordingly, this writ petition is allowed to the extent that the petitioner shall be awarded plus 4 marks for Question No.146 instead of minus 1 mark, which was awarded because of the wrong evaluation of the answer sheet by the computer. There shall be no change in the evaluation of marks with regard to all other questions including Question Nos.61 and 147. The change in mark shall be communicated to the Chairman, OJEE at the earliest, but not later than a week, so that the petitioner can exercise his option for up-gradation of his institution to prosecute his studies in MBBS course in better institution than that of the present one.
This order is being passed in the particular facts of this case and may not be treated as a precedent.
Sd/-
( VINEET SARAN ) CHIEF JUSTICE Sd/-
( DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack.
Dated the 24h July, 2018 PCP/SKG/GDS/Ajaya 17