Punjab-Haryana High Court
Ravneet Kaur And Ors vs Baba Farid University Of Health ... on 9 September, 2016
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.12963 of 2016 (O&M)
Reserved on:06.09.2016
Decided on :09.09.2016
Ravneet Kaur & others ... Petitioners
Versus
Baba Farid University of Health Sciences, Faridkot & another
... Respondents
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
Present: Mr.Ashok Sharma Nabhewala, Advocate,
Mr.G.S.Bal, Sr.Advocate
with Mr.A.D.S.Bal, Advocate
Mr.Ajay Pal Rehan, Advocate,
Ms.Bhupinder Kaur, Advocate, for
Dr.Surya Parkash, Advocate,
Mr.Sanjeev Patial, Advocate
Mr.D.K.Bhatti, Advocate
Mr.R.D.Anand, Advocate
Mr.Arun Bansal, Advocate and
Mr.V.S.Mahal, Advocate, for the petitioner(s).
Mr.S.S.Chandumajra, Addl. A.G., Punjab.
Ms.Lavanya Paul, AAG, Punjab.
Mr.Anupam Gupta, Sr.Advocate
with Mr.Gautam Pathania, Advocate,
for the respondent-University.
Ms.Shivangi Sharma, Advocate, for the MCI.
Mr.IPS Kohli, Advocate, for respondents No.3 to 10.
****
G.S. Sandhawalia, J.
This judgment shall dispose of CWP-12963, 13239, 13308, 13624, 14090, 15417, 16682, 16906 & 17126-2016, involving common questions of law and facts. However, to dictate orders, facts have been taken from CWP-12963-2016 titled Ravneet Kaur & others Vs. Baba Farid University of Health Sciences, Faridkot & another. For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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2. The petitioners, who are five in number, challenge the result which has been declared on the basis of the percentile method by the University, allegedly in contravention to the provisions of Clause 8 of the notification dated 10.06.2016 (Annexure P2), issued by the respondent No.2-State, read with Clause 7 of the notification dated 18.03.2016, contained in the prospectus of the Punjab Medical Entrance Test (PMET- 2016). Resultantly, writ in the nature of mandamus, directing the respondents to re-conduct the examination, has been sought, on the ground that the examination was totally vitiated or in the alternative, revise the result on the basis of normalization of the score on merits, of each candidate.
3. The pleaded case of the petitioners is that the respondent- University had conducted a test, i.e., PMET-2016, online with the help of Tata Consultancy Services Pvt. Ltd. on 11.06.2016. The admission to the MBBS/BDS courses, in various institutes in the State of Punjab was to be done from the said test. As per the prospectus (Annexure P1), the minimum of 50% marks in 10+2 was required, as per Clause 5. As per Clause 7 of the same, the minimum eligibility for admission was to be on the basis of the 50% marks in the PMET, 2016 (45% for the handicap quota and 40% for the SC/BC), for the academic session 2016. The notification dated 10.06.2016 had been issued for the admission in the said courses and Clause 6 dealt with the eligibility of the candidates on the basis of the 10+2 examinations whereas Clause 8 provided the minimum of 50% marks in PMET, 2016. The scheduled date, initially, was 15.05.2016 and the result was to be declared on 21.05.2016. However, in view of the judgment of the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
2 of 129 ::: Downloaded on - 11-09-2016 01:08:12 ::: CWP-12963-2016 (O&M) & other connected cases -3- Apex Court, the respondent-University, in its notice dated 30.04.2016 (Annexure P3) had taken a decision that the admission would be on the basis of the National Eligibility Entrance Test (NEET), 2016 and the fee deposited for PMET, 2016 was to be refunded.
4. In view of the Government of India promulgating the Ordinance and keeping in abeyance the NEET, 2016, the University decided to hold the PMET, 2016, vide notice (Annexure P4) and accordingly, re-scheduled the online examination for 11.06.2016, as per the notice (Annexure P4/A). The said examination was conducted in two shifts, in morning and evening, at various centres, online. The answer keys were uploaded on the website, as per the judgment of this Court in the case of PMET-2015. Out of the total 400 questions, 598 objections were received by the University, as per the notice (Annexure P6), and resort to the percentile method had jeopardised the career of the candidates and upset the merit between the candidates inter se of Paper Set-1 (morning) and paper Set-2(evening) . The equality between the candidates in two set of papers and the disparity between the two set of questions and the marks awarded for the number of wrong questions was, accordingly, questioned. The merit on the basis of percentile was alleged to be violating Clause 8 of the notification and Clause 7 of the notification, mentioned in the prospectus. The University had no authority to violate the terms of the prospectus and discriminate between the two classes. The formula for score normalization in the form of percentile, as adopted by the All India Institute of Medical Sciences (AIIMS) and the Jawaharlal Institute for Post-Graduate Medical Education & Research, Pondicherry (JIPMER) had been adopted for For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
3 of 129 ::: Downloaded on - 11-09-2016 01:08:12 ::: CWP-12963-2016 (O&M) & other connected cases -4- normalization of the 2 set of candidates, as per the corrigendum issued on 22.06.2016 (Anneuxre P7). The fate of the observations had not been uploaded, as directed by this Court in CWP-11475-2015 and there was no transparency and accountability.
5. The 110 questions which had been challenged by the aspirants and how they were dealt with, was not displayed and therefore, the non- uploading of the complete result with marks and the rank of all the candidates, was not justified. The adoption of principle of percentile was, accordingly, challenged by relying upon the judgment of the Full Bench in Amardeep Singh Sahota Vs. State of Punjab 1993 (4) SLR 673.
6. Respondent No.1-University, in its written statement, took the plea that the notification dated 10.06.2016 postulated minimum eligibility threshold of 50% marks in the PMET, 2016, for candidates in the General Category (45% for locomotor disability of lower limbs and 40% marks for the candidates in SC/BC categories). The formula was also there for tie- breaking, based on higher marks in Biology and Chemistry and higher age of candidates, which was strictly adhered to by the University and there was no violation or deviation. The percentile system had been applied with a view to normalize the difficulty, as the examination had been held in 2 shifts, morning and evening. The same was based on Clause 8.8 of the prospectus for the MBBS Course, 2016, issued by the AIIMS and was considered as the most objective method of normalization for Medical Examinations. The same was consistent with the provisions of Clause 8 which had been duly followed and acted upon. No candidate of PMET- 2016 who had secured less than the minimum marks prescribed in the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
4 of 129 ::: Downloaded on - 11-09-2016 01:08:12 ::: CWP-12963-2016 (O&M) & other connected cases -5- notification, under Clause 8 was to be treated as eligible.
7. The minimum percentile was 74.8080088 for the General Category and 64.1611464 for Handicapped Category (45% for locomotor disability and 48.1141003 for BC/SC candidates, (40% for SC/BC candidates). The tie-breaking formula had been strictly adhered to and a notice dated 23.06.2016 (Annexure R-1)had been put on the website to clear the doubts of the parents. The petitioners had not appended their result cards and out of the 5, only 3 had made the cut-off by securing the minimum cut-off percentile of 74.8080088. Petitioners No.1 & 2 were ineligible for admission as they had only secured percentile of 24.0126166 and 58.0224904. It was open to the petitioners to download their results and the fact that the University had not disclosed the result was unfair. The percentile of 64.1611464 was the last for the Handicap Category whereas for the SC/BC, it was 48.1141003 and none of the persons below the minimum requirement was being treated as qualified. The last qualified candidate having minimum 50% marks, i.e., 400 out of 800, had PMET- 2016, rank of 3788 and similarly, for the SC Category, the candidate had 320 marks and rank in the General Category was of 7829, while the rank in his category was 1186. In the BC Category, minimum marks was 320, having the rank in the General Category of 7823, the rank in his category was 829. While in the Handicap Category, the person had secured 368 marks out of 800 and his rank was 5, while in the General Category, he was at rank 4952. There was no negative marking in the PMET-2016, as laid down in the prospectus. The examination had been conducted in more than one shift and therefore, normalization of the scores had to be done. The For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
5 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -6- University had neither innovated any such practice or procedure and it was not for the first time it has been done. The CBSE was conducting the NEET-2016 on 01.05.2016 and on 24.07.2016, in which the percentile system normalization had been applied and followed.
8. The procedure for normalization of the score and standard deviation method, as suggested by the Tata Consultancy Services, had not been accepted but Clause 8.8 of the prospectus of AIIMS had been followed, after exchanging views with the said authorities by the Vice- Chancellor of the University. A corrigendum dated 22.06.2016 (Annexure- P7) had been published whereby the information had been put on the website.
9. The MBBS Entrance Examination, conducted by two premier institutes in the country, AIIMS (Delhi) and JIPMER (Pudducherry) were computer based online tests conducted in more than one shift and both institutions were of national importance. Similarly, the NEET, held for admission to MBBS/BDS courses, for the session 2016-17, conducted by the CBSE was in 2 shifts, held on 01.05.2016 and 24.07.2016 under the orders of the Apex Court. The combined result of both the tests was to be declared on 17.08.2016. Copies of the prospectus which had been issued by the AIIMS, JIPMER and the CBSE and along with JIPMER's addendum document and CBSE's information bulletin for NEET-II, for the present session 2016-17, was appended as Annexures R3 to R5. Accordingly, the challenge to the holding of the test in 2 shifts and the preparation of the result being completely and manifestly misconceived and untenable and out of sync with the established contemporary academic/examination practices For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
6 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -7- was defended. It was reiterated that Clause 8 of the notification had been followed and strictly adhered to while preparing the result.
10. The University had uploaded on the website the detailed procedure for normalization of the scores on 07.06.2016 based on the standard deviation method, as suggested by TCS, a well-known and highly experienced and credible agency hired by the University for conducting PMET-2016. On recommendation, the standard deviation method, suggested by the TCS, was not considered appropriate for medical entrance examinations and the percentile method of score normalization, followed by the AIIMS and embodied in Clause 8.8 of the AIIMS prospectus for the MBBS course, 2016 (Annexure R3) was considered the most objective method of normalization. Reliance was placed upon various correspondences between the Vice-Chancellor of the University and the representatives of the AIIMS and TCS, to aver that the decision to adopt the percentile method for score normalization was well justified. Corrigendum dated 22.06.2016 (Annexure P7) had been accordingly published. In compliance of the judgment in CWP-11475-2015 titled Ritika & others Vs. State of Punjab & others, decided on 01.09.2015, the University had uploaded the question papers for both shifts of the PMET, 2016 along with the answer keys, on the day of the Entrance Test itself. Comments/objections from the candidates regarding the discrepancies in the question papers and the answer keys of both the shifts had been invited, as per the notice (Annexure R9). In response to the said notice, 379 emails had been received and all the comments and observations had been compiled. The Vice-Chancellor had referred the same to 3 separate For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
7 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -8- independent Committees of University Subject Experts; College Experts and School Experts, teaching at 10+2 level, for their objective consideration, independent of each other. The Registrar, Punjab University had been asked to appoint Subject Experts in 4 subjects vide letter dated 14.06.2016 (Annexure R10). Similar requests had been made to the Principal, Government Brijindra College, Faridkot and the District Education Officer, Senior Secondary, Faridkot vide letters dated 15.06.2016 (Annexures R11 & R12). It was highlighted that the college at Faridkot being a leading Government College and running courses in medical and non-medical, was one of the few Government colleges accredited with 'A' Grade by the NAAC. Reference was made to the notice (Annexure P6) wherein the objections raised against questions in various subjects of Set-1 and Set-2, had been highlighted and the students were informed that the Committees had been set up. The details of the Committees were also given along with the detailed comments of the Subject Experts of the Panjab University, Principal; Government Brijindra College, Faridkot and the Balbir Singh Government Senior Secondary School (Annexures R14 to R16). It was further averred that the comments received from the 3 Committees were considered by the Committee of the respondent-University, which is headed by Dr.D.S.Sidhu, the then Registrar of the University along with 4 other members and the report dated 22.06.2016 was placed on record as Annexure R17. It was, accordingly, averred that the University had acted in a transparent and bona fide manner with complete fairness and objectivity in examining the aforesaid objections. There were separate Expert Committees, independent of the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
8 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -9- University. The allegation in the writ petition that 110 out of the 400 questions were wrong, stood falsified, in view of the detailed reports of the Expert Committees read with the University's decision, in terms of which the result had been prepared.
11. On merits, the defence was that reckless allegations had been made in the writ petition, impeaching the conduct, evaluation and declaration of the result. The cancellation of the PMET-2016, which was to be held on 15.05.2016, was on account of the order passed by the Apex Court in Writ Petition (C) No.261 of 2016 titled Sankalp Charitable Trust & another Vs. Union of India & others, on 28.04.2016. The University, vide notice dated 30.04.2106 (Annexure R-18) had informed the candidates that it would not hold the test, in view of the directions of the Apex Court and the admissions would be made on the basis of the NEET- 2016. The portal had been closed, accordingly. In view of the decision of the Union Cabinet to issue the Ordinance and the ensuing uncertainty regarding the conduct of the NEET-2016, the Punjab Government decided to go ahead with the process of holding PMET-2016. The portal had been reopened on 20.05.2016 at 6.30 pm and the last date for receiving online application was fixed as 25.05.2016. The earlier last date was 03.05.2016 when the portal had been closed down on 30.04.2016. A decision had also been taken to conduct the PMET, 2016 in 54 centres in Punjab, Haryana and Jammu and circular dated 03.06.2016 had been uploaded on the University website (Annexure R-19). The same was published in the leading newspapers on 03.06.2016 (Annexure R-20 Colly.). Keeping in view the instructions issued by the Chief Minister and the administrative For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
9 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -10- exigencies, it was decided that PMET-2016 would be held at centres situated in the State of Punjab only and in 2 sessions, i.e., 10 am to 1 pm (morning) and 2 pm to 5 pm (evening) and notice was issued in the leading newspapers on 07.06.2016 (Annexure R-21 Colly.). Since the test was conducted in multiple shifts, the marks of the candidates appearing in different shifts with different question papers and difficulty levels, had necessarily to be normalized. The percentile system was the most objective and appropriate method of score normalization in medical entrance examinations, as detailed in paras 1 to 3 of the preliminary submissions.
12. The directions issued in Ritika's case (supra) had been duly complied with and the candidates had been given access to the question papers and the answer keys.The University had duly uploaded the question papers along with the respective answer keys on the University website and invited objections/comments from the candidates which were examined by the University with complete objectivity and fairness. It was pleaded that the prospectus and the notification nowhere stated that the complete result had to be made available to each candidate and to the general public. The individual result of each and every candidate including the ranking was available on the University website and could be accessed by every candidate, upon entering the roll number. As detailed in the preliminary submissions, the particulars of the result of each candidate, as then was available and the petitioners had suppressed their PMET-2016 result. The petitioners having participated in the test, had no locus standi to challenge the said test after the declaration of the result and after failing to secure merit position worthy of securing admission to the University. 14,689 For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
10 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -11- candidates had appeared in 2 shifts and only a handful of petitioners had challenged the conduct of the examination by leveling vague and false allegations. The University had been completely fair and objective in holding the same.
13. Respondent No.2-State, in its reply, took the plea that it would file a detailed para-wise reply, if need be. The University had been authorized to conduct the PMET, 2016 and make admissions through the notification dated 10.06.2016 and therefore, it washed its hands of the controversy.
14. Keeping in view the neutral stance adopted by the State, this Court had directed the State to file a better affidavit on 11.08.2016, clarifying its stand and whether it was involved in the decision making process. Resultantly, affidavit of Director, Medical Education & Research, Punjab dated 16.08.2016 was filed wherein the State confirmed the fact that though the respondent-University had been authorized to conduct the PMET-2016. It had been informed on 04.06.2016 by the Vice-Chancellor that the number of candidates was 15000 and it was difficult to find sufficient computer centres in the Punjab State. Hence adjoining areas of Haryana, Himachal Pradesh and Jammu & Kashmir were selected for examination. Ambala, Kurukshetra and Hissar were centres in the Haryana State and the date of examination had been refixed as 11.06.2016. On account of the fierce Jat Reservation agitation, the Secretary of the Medical Education & Research, Punjab had asked the Vice-Chancellor to keep the centres in the State of Punjab only. Even the Chief Minister had telephonically asked the Vice-Chancellor, after discussing the issue with For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
11 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -12- K.K.Talwar, Health Advisor, Punjab and the Chairman of the Board of Management of the University. On account of the number of workable modules for taking the examination online in the State of Punjab being limited, it was decided by the University in consultation with the then Secretary, Medical Education & Research, Punjab to conduct the examination in 2 shifts, as that was the only way to conduct it on online basis. Resultantly, to normalize the difficulty level, it was mandatory to prepare the result on the percentile basis which had been adopted in the pattern of AIIMS, Delhi. The decision to adopt the percentile system had been taken with the approval of the Secretary, Medical Education & Research, Punjab and the Minister for Medical Education & Research, Punjab, by telephonic instructions, due to the shortage of time. An averment was also made that NEET-2016 was also based on the principle of percentile.
15. In the replication filed by the petitioners, to the written statement filed by the respondent-University, it was pleaded that the University had tried to mislead this Court and assumed the powers of the State. It was not authorised to take a decision on its own level, without the authority of law. The University had been only been authorized to conduct the PMET-2016 and to conduct the centralized counselling for admission. It could not adopt any other procedure like percentile, for determination of eligibility, merit and admission except on the basis of the marks obtained by each candidate. Reference to adoption of any other parameter, other than marks, was required to be disclosed in the preparation of the inter se merit, which the University had not done, and was, accordingly, challenged. The For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
12 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -13- calculation done on the basis of the marks obtained by each candidate in the subjects of Biology, Physics and Chemistry, had only been disclosed to the parents on 26.06.2016 (Annexure P7). A clarification had been issued on 23.06.2016, which had not been placed on record by the respondents (Annexure P9/R1). The marks were not available and Clauses 3 & 8 did not permit declaration of the result based on the principle of percentile. The deviation was totally arbitrary and in disregard of the provisions of the notification without the mandate of the Government and the result could not be declared on the basis of the percentile. The corrigendum dated 22.06.2016 (Annexure P7) was without any authority and was in disregard to the notification. Reference to the institutes which had conducted other examinations with lacs of students could not be compared, as only 15,000 had appeared in the PMET, 2016, for more than 2000 seats. The University had neither declared the result on the basis of the marks obtained after normalization nor it had uploaded the same on the website. The weightage had been wrongly given for the wrong questions by appointing Subject Experts, regarding wrong questions and from the same college, which were appointed last year and 2 members were common.
16. This Court in Ritika's case (supra) had commented upon their performance and the respondents had acted arbitrarily in relying on the wrong questions. The benefit of only 4 questions instead of 7, had been given in Set-1 and 11 out of 12 in Set-2. A large number of questions had gross printing and paraphrasing mistakes which had created utter confusion. The University had given a statement that the printing mistake was a routine matter but the aspirations of thousands of the students could not be For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
13 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -14- brushed aside. The percentile system only determined the relative position between the students and did not determine the actual marks obtained by the candidates in different examinations. The preparation of the result was illegal and deserved to be quashed. In Ritika's case (supra) the mandate had been to upload the questions and answer keys, which had not been done this year. By not uploading the final version of the question booklet and the answer keys and nor the OMR sheets being shown to the candidates resultantly, the procedure was not transparent. Respondent No.1 had in contravention of Clause 10, which required the process of counselling to start after NEET-2016, on 05.07.2016 and had tried to complete the process of admission by 22.07.2016. Only on account of the miscellaneous application having been filed on 06.07.2016, a statement had been made that no counselling was taking place. The whole exercise was a sham exercise and by giving marks to each candidate, the merit of the candidates between Set-1 and Set-2, had been grossly disturbed.
17. The undeserving candidates of Set 2 had stolen a march over and above the best candidates in Set-1 and the report of the Panjab University, Chandigarh had been ignored. A power failure had taken place in Examination Centre at Sector 34, Chandigarh, which created high level of uncertainty in the minds of candidates. Favourites who were to appear in the morning session,had been allowed to appear in the evening session. In 2 other tests conducted by the same University, Post Graduate Entrance Test (PGET-2016 for MS/MD) and Punjab Para-Medical Entrance Test (PPMET-2016), results had been declared on the basis of the marks obtained by each candidate's result .Accordingly, the averments made in the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
14 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -15- writ petition were reiterated.
18. Mr.Nabhewala has, accordingly, argued that in view of the settled proposition of law that the prospectus/notification would be binding upon the respondent-State and having the force of law, as held by various Full Benches of this Court, the resort to the percentile method was bad. Reference has been made to Amardeep Singh Sahota (supra) and Raj Singh Vs. Maharishi Dayanand University 1994 (2) SCT, Sachin Gaur Vs. Punjabi University, Patiala 1996 (1) SCT, Rahul Prabhakar Vs. Punjab Technical University 1997 (3) SCT 526, Indu Gupta Vs. Director of Punjab 1999 (4) SCT 113 and Rupinder Singh & another Vs. Punjab State Board of Technical Education & Industrial Training, Chandigarh & others 2001 (2) SCT. Reference is also made to the Apex Court judgments in Rajiv Kapoor Vs. State of Haryana 2000 (2) SCR 629, State of Punjab & another Vs. Dr.Vinay Kumar Khullar & others (2010) 13 SCC 481 and Parminder Kumar Vs. State of Haryana 2011 (14) SCR 1065.
19. It has been, accordingly, submitted that the notification dated 10.06.2016 (Annexure P2) specifically provides that the admission would be on the basis of merit obtained in the PMET-2016. Reference was made to Clauses 3, 8 and 10 to submit that it was provided that a minimum of 50% marks was required. For determining the inter se merit for tie- breaking also, the merit had to be taken into consideration of higher marks in Biology (Botany and Zoology). The non-compliance of the notification had led to violation of the terms of the notification. It was submitted that there were 200 questions having 4 marks each, totalling 800 marks, as per For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
15 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -16- the prospectus itself. The same were in the form of multiple choice and were divided between the subjects of Physics, Chemistry, Botany and Zoology and there was no negative marking. Vide Annexure R-9, objections had been called on 11.06.2016 by issuing the public notice on the website. Thereafter, resort had been made to the public notice dated 15.06.2016 (Annexure P6) by the University wherein it had been put on public domain that objections had been received against various questions of both the tests held in the morning and the evening and Committees had been appointed to consider the said objections. Resultantly, it was submitted that the resort to the procedure of Clause 8.8 of the prospectus of the MBBS course of the AIIMS, in such circumstances, was not justified, as stipulated by the notice dated 22.06.2016 (Annexure P7). The result which had been declared (Annexure R2/A) had shown the percentile of the students, which was not provided in the notification. Similarly, the notice (Annexure R1) whereby the justification had been made that result was to be on the percentile basis was alien to the procedure prescribed in the prospectus and the notification issued thereafter.
20. Secondly, it was further submitted that the Committee of the respondent-University, which had been set had given the benefit of 3 questions for Set-1 (morning session) and 1 question had been declared invalid resulting in awarding 12 marks. Similarly, for Set-2 (evening session), 11 questions had been declared invalid and accordingly, benefit of 44 marks had been given. Therefore, the students who had appeared in Set- 2 had stolen a march over the candidates of Set-1. It was, accordingly, argued that 400 was the pass marks and the candidate of Set-1 who had For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
16 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -17- secured 50% i.e. 400 marks would benefit by getting 12 marks, i.e., 412 marks. The candidate from Set-2 who had not made the grade and had, for example, got 380 marks, having not passed by getting 44 grace marks, would improve his score by 424 marks. Resultantly, the merit of the candidates was disturbed and it did not amount to proper score normalization. It was further submitted that the number of questions had been referred to in the notice (Annexure P6) by the University, which had been examined by the Committee of the University, which had given its final report dated 22.06.2016 (Annexure R17), but as many as 110 questions had not been dealt with and there was no openness and transparency in the system.
21. Thirdly, it was submitted that subject experts of the Panjab University had given their opinion on 15.06.2016 (Annexure R-14) but all of it had not been accepted by the University experts in their final report (Annexure R17). Reference was made to question No.118 of Set-1 of Botany and question No.112 of Set-2 and question Nos.51 & 62 of Set-1, Chemistry. It was submitted that the experts of the University had not touched upon the other questions also and no valid reason had been given for rejecting the opinion of the Panjab University experts. Reliance was placed upon the judgment of the last year in PMET-2015 in Ritika's case (supra) to submit that Clause 7(II) of the prospectus of the said year had been held to be unreasonable, pertaining to the candidates being not allowed to take the question booklet. Thus, the system which was followed by the respondents was not transparent. Resultantly, it was prayed that a Committee be constituted to look into the allegations or re-test be done. For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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22. Mr.R.D.Anand, appearing for the petitioners (in CWP-13239- 2016) vehemently submitted that the test was to be held in one shift at 54 centres of Punjab, Haryana and Jammu, between 11 am to 2 pm, which would be clear, as per their notice dated 03.06.2016 (Annexure R-20). Thereafter, it was informed that the test would be held in 2 shifts, from 10 am to 1 pm and 2 pm to 5 pm and only in the State of Punjab. Accordingly, fresh admit cards had been issued, as per notice dated 07.06.2016 (Annexure R21). Thereafter, the notification was issued on 10.06.2016 (Annexure P7). Reference was made to the question papers to submit that there was poor printing and there were large number of mistakes and the resort to the normalization which had been done, should not have been delegated to the TCS. In certain cases, morning shift candidates had been allowed to sit in the afternoon shift and favouritism had been done to accommodate certain candidates.
23. Mr.Mohit Garg, Advocate, for the petitioners (in CWP-13624- 2016) submitted that as per the prospectus of the AIIMS, there was a negative marking and referred to Clause 8.8 and accordingly the decision of the University was not justified and there was a contradiction, as there was no provision for negative marking in PMET-2016.
24. Ms.Bhupinder Kaur, Advocate, for the petitioners (in CWP- 13308-2016) has submitted that the students who were in Sports Category, for them also, the cut-off had been fixed on percentile of 74.8080088 and their admission was to be based on gradation certificates, as per notification which provided reservation to the extent of 1%. Reference was also made to Clause 25(a) to submit that the University had to display a combined merit For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
18 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -19- list of all reserved categories and also separate merit list of different categories of all candidates, seven days before counselling, which was not being done.
25. Mr.Arun Bansal, counsel for the petitioners (in CWP-17126 and 15417-2016) while appearing for the candidate in the 'Terrorist Affected Category', filed the petition on the ground that children/grandchildren of the terrorist affected persons were to be given reservation and the petitioner was ward of police personnel etc., but kept out of the zone of consideration on account of adopting the percentile method by the University and fixing of the cut-off. Petitioner submitted that the total percentile of the petitioner is 58.22954 and was identical to Rajbir Singh, petitioner No.2 in the lead case, i.e. CWP-12963-2016. The said student had a rank of 6269 whereas the petitioner's rank had been put to 6318 and therefore, there could not have been such a vast difference if the percentile was the same.
26. Mr.G.S.Bal, Senior Counsel, appearing for the petitioner (in CWP-16906-2016) raised the issue that the respondent-University's decision of declaring 3 questions in Set-1 and 11 questions in Set-2 invalid, was illegal and arbitrary. The report of Committee No.1 was the correct report and therefore, same should be accepted and a fresh merit of the candidates should be drawn. Further prayer was made that the percentile of marks inter se of the students be, accordingly, drawn up. Reliance was placed upon the judgment of the Apex Court in Guru Nanak Dev University Vs. Saumil Garg & others 2015 (13) SCC 749 in support of the said contention, to submit that it had been directed that grace marks should For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
19 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -20- not be given across the board, even for the students who had not answered the said questions. Similarly, reliance was placed upon the judgment of the Apex Court in Abhijhit Sen & others Vs. State of U.P. & others 1984 (2) SCC 319 to contend that the questions had been wrongly discarded and material was, accordingly, placed before this Court to submit that the options given by the 1st Committee should have been accepted. The subsequent opinions of the college and school committees had wrongly been considered. Similarly, reliance was also placed upon the judgment of the Division Bench of the Kolkata High Court in Amalendu Santra Vs. University of Calcutta & others AIR 1986 (Calcutta) 153 that the material which was being produced, should be accepted. The percentile method resorted to, though not objected to as such in the present petition, it has been pointed out that the same was not accepted by the Rajasthan High Court in Rishabh Saxena & others Vs. State of Rajasthan & others 2015 (1) WLC 335 and was also very fairly brought to the notice of this Court.
27. Mr.D.K.Bhatti, counsel for the petitioner (in CWP-13624- 2016) has eloquently tried to show that there are vast variances while applying the percentile system, adversely affecting the merit, which would only be calculated as per the percentage system. Therefore, the disadvantage to the petitioners would be, to a large extent. He has contended though, one of his client is at 95.61 percentile but the said method would not depict the correct percentage and thus, the candidates have been put to a disadvantage. Reliance is, accordingly, placed upon the judgment of the Apex Court in T.M.A. Pai Foundation Vs. State of Karnataka 2002 (8) SCC 481, to submit that merit obtained in the Joint For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
20 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -21- Entrance Test is the sole criteria which is to be followed. Similarly, reference is made to the judgment of the Apex Court in Islamic Academy of Education Vs. State of Karnataka 2003 (6) SCC 697 and P.A.Inamdar Vs. State of Maharashtra 2005 (6) SCC 537, to submit that there was never any formal decision or approval by the Government.
28. Mr.Anupam Gupta, Senior Counsel for the respondent- University, projected the proposition that the prospectus has the force of law, by virtue of the Full Bench judgments of this Court. It was submitted that the notification as a whole has to be read and not specific clauses which were being done by the petitioners. The prestigious admissions to the MBBS/BDS courses could be made subject matter of judicial review whether under Articles 32, 136 or under Article 226 of the Constitution of India. The sole criteria and the purpose was that the merit should prevail. Whether the procedure was of percentile or of standard deviation normalization or the minimum prescribed marks but the merit would eventually prevail in the system of percentile. He painstakingly submitted that the Apex Court had recalled the order in Christian Medical College, Vellore & others Vs. Union of India & others (2014) 2 SCC 305 on 11.04.2016 and thereafter, vide orders dated 28.04.2016, directed that the NEET-1 & 2 would be held on 2 different dates, on 01.05.2016 and 24.07.2016. The result of which was to be declared on 17.08.2016. Thereafter, an Ordinance had been issued by the Government of India which permitted the States to opt out of the NEET for the State Government seats. The prospectus had been made available by 04.04.2016 and due to the change in events initially, the PMET, 2016 had been cancelled but in For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
21 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -22- view of the Ordinance, having been issued decision was taken to hold the same again. The changing events had forced the issue and therefore, the whole process of evaluating the merit had led to the change of events. NEET also followed the percentile method, which was being used by the prestigious institutes like AIIMS and JIPMER. Reference was made to Clause 25(a), which also provided that merit lists had to be put 7 days before the counselling and would be adhered to by the University.
29. Similarly, reference was made to Clauses 11 to 13 of the prospectus to submit that procedure was prescribed as to how the result would be published, which was to be available on the University website and how the result could be checked under Clause 12 . The merit list had to be prepared under Clause 13 for the allotment of seats in the different courses so that students could put in personal appearance before the Committees. It was contended that there was valid reason to restrict the admissions within the jurisdiction of the State, due to the poor law and order situation prevalent in the adjoining State of Haryana, on account of the Jat agitation in the month of June, 2016, which was sought to be re- agitated. On account of such factors, there was a change of policy in holding the PMET-2016 in two shifts. It was further submitted that 14689 students gave the test and it was an online test and the infrastructure for such a large number of computers was not readily available. Reference was made to Clause 8 of the notification to submit that adherence to the minimum of 50% marks as per the guidelines of the MCI was being followed. Similarly, Clause 10 provided inter se merit between persons of the same category. The system of percentile was a relative position of For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
22 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -23- candidates of 2 different tests and was a valid system which did not sacrifice the merit at any point. The arguments of the petitioners that for PGET (MS/MD course), 2016 and for the PPMET, 2016, percentage system had been followed and the results of which have been published was because there was one shift.
30. Reference to a chart was made that out of the 14689 candidates, who had sat in the PMET-2016, 9623 candidates failed to qualify and only 5066 qualified. It was further highlighted that from the morning shift, out of the total 7292 candidates, there were 4786 who failed to make the grade of the minimum 50th percentile and only 2506 had made the grade. Similarly, out of the 7397 candidates who sat in the afternoon shift, 4837 were unsuccessful to get the minimum percentile whereas 2560 were successful. It is, thus, submitted that the argument which was being raised that the afternoon candidates had benefitted, in any manner, on account of the recommendations for the marks given, was without any basis. Almost an equal number of 7292 versus 7397 had sat in both the tests and out of them, from the morning session, 2506 candidates had been selected and from the evening shift, 2560 had made the cut and thus, the candidates from both the tests were evenly placed. Similarly, it was submitted that out of the 100 top candidates, 50 belonged to the morning shift and 50 to the evening shift.
31. It was, accordingly, submitted by referring to Clauses 9 & 10 of the notification, both PMET-2016 and NEET-2016 were intertwined and interlinked inextricably and admissions had to be made to Government quota seats and management quota seats on the basis of inter se merit, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
23 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -24- which would be the sole criteria for admission. Similarly, reference is also made to proviso of Clause 16 to submit that in the case of inadequate number of candidates for the BDS course for Government quota, the remaining seats were to be filled on the basis of the NEET-2016 from amongst Punjab residents. In absence of seats still remaining vacant, then candidates from other States were to be considered on the basis of NEET- 2016. It was, thus, argued that both the entrance exams were inseparable and were joint such as siamese-twins and the shadow of NEET-2016 was falling on PMET-2016. The former was following the system of percentile for admission which was to be calculated for inter se merit.
32. It was, accordingly, submitted that by the amendment made in the Indian Medical Council Act, 1956 on 05.08.2016, Section 10D had been inserted w.e.f. 24.05.2016, the date of the Ordinance. Resultantly, all the actions taken under the Ordinance had been given the legislative stamp by the Parliament. Similarly, vide the notification dated 08.08.2016, the schedule for completion of the admission process for the first MBBS course had been fixed in Appendix F, in the Regulations of Graduate Medical Education, 1997. The same laid down the time-table of admissions, both for All India Quota seats and the seats which were to be filled up by the Government institutes. It was, accordingly, submitted that the judicial precedent had been given the legislative approval by the Act of the Parliament and by way of the delegated legislation by the MCI. A statutory flavour had been given and a schedule had been fixed, as per order of the Apex Court dated 28.04.2016 by recognizing the holding of the NEET-1 on 01.05.2016 and NEET-2 on 24.07.2016, the result of which was to be For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
24 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -25- declared on 17.08.2016. No legal vacuum had been left and all the acts had been done expressly by the competent authorities who were duly empowered to do so, by an integrated legal apparatus. Reference was made to Clauses 6, 8, 14 and 15 of the notes of the prospectus, which provided that instructions given in the prospectus and the University website had to be followed by the candidates. The website was to be regularly checked for updated information for admission dates/counselling dates, from time to time. Resultantly, reference is also made to Clause 8 of the eligibility and qualifications of the prospectus by which the scheme for the PMET-2016 which was an online test, would be available on the University website. It was, accordingly, contended that the power of judicial review on various decisions was not under doubt but the situation was fluid and kept on varying. Various notifications and publications on the website for the procession of the events, development and flow were taking place, which could not be bound down by just referring to certain portions of the prospectus and the notifications. The NEET was all prevailing over the PMET, which was the true intent of the order of the Apex Court and Clause 25(d) also provided that the unfilled seats of the All India Quota, which were to be surrendered, were to be filled from NEET-2016, on merit.
33. Attention of the Court was drawn to the information bulletin of the NEET Session 2016-17 (Annexure R5) which laid down the terms and conditions of the second test, to highlight that there were two papers whose result had been combined. Left out candidates had been permitted to sit in the examination, even candidates who had been registered in NEET-I but could not appear, were permitted to appear in NEET-II. Similarly, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
25 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -26- candidates who had not done well had also been permitted, subject to an undertaking that they would give up their candidature for NEET-I. The eligibility criteria of the said handbook provided that the minimum marks of the 50th percentile in the NEET was required, while for the reserved categories 48th percentile, and for the disabled, 45th percentile was the requirement. Reference had also been made to the Graduate Medical Education Regulations, 1997, which was the delegated legislation, having the force of law. 50% of the PMET-2016, thus, had been pegged by the percentile of 74.8080088. The onus was on the petitioners to show that there was no fault or arbitrariness and that the fixation was wrong. No rules of the game had been changed after the declaration of the result. Merely on the non-use of the word 'percentile' in the notification, would not invalidate the whole process. The petitioners had not been able to demonstrate that percentile was distorting the merit which was the sole criteria for admission.
34. Similarly, reference was made to the prospectus of JIPMER, Puducherry (Annexure-R4) to submit that the same had been issued on 27.02.2016. The addendum had been issued on 10.03.2016, in view of the increase in the applications and registration and the lack of available capacity of computer based modes, the decision had been taken to conduct the entrance examination in 2 shifts, morning and afternoon. As per Clause 2, the formula of percentile had been fixed, to determine the eligibility in the similar matter of minimum percentile of 50, 45 and 40, for the various categories. Normalization process was being followed, as decided by the experts and the distribution of the examination in 2 shifts and the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
26 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -27- preparation of overall ranking/merit-list by resorting to the percentile score was being done by the said reputed institute. The percentile was to be on the basis of the total raw scores and preference was to be given on higher percentile scores in Biology.
35. Similarly, reference was made to prospectus issued by the AIIMS, New Delhi (Annexure R3) wherein also, examination was to be conducted in 2 shifts, all over India, for admission to the institute at Delhi and 6 other AIIMS, by way of online computer based tests (CBT). Resultantly, reference was made to Clause 8.8, which provided the normalization procedure by the said institute. The fact that the percentile was to be on the basis of raw score, for the purpose of judging the eligibility and normalization was for the purpose of determining the merit. Accordingly, communications were, thereafter, made with TCS and representatives of the AIIMS and enquiries made from JIPMER, Puducherry, by the Vice-Chancellor. Resultantly, it was projected that it was complete bona fide exercise which had been conducted, which was transparent. There were well reasoned and considered decisions taken, with concurrence of the Government and the said procedure was liable to be upheld.
36. The amendment made in the 1956 Act, by introducing Section 10D on 05.08.2016, provided a uniform entrance examination for Under- Graduate and Post-Graduate level. It gave legitimacy to the State Governments to opt out of the uniform entrance examination for the academic session 2016-17 and saving of the action taken by giving it effect from 24.05.2016. Said amendment reads as under:
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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"MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 5th August, 2016/14 Shravana, 1938 (Saka) The following Act of Parliament received the assent of the President on the 4th August, 2016, and is hereby published for general information:-
THE INDIAN MEDICAL COUNCIL (AMENDMENT) ACT, 2016 No. 39 OF 2016 [4th August, 2016.] An Act further to amend the Indian Medical Council Act, 1956.
BE it enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows:--
1. (1) This Act may be called the Indian Medical Council (Amendment) Act, 2016.
(2) It shall be deemed to have come into force on 24th May, 2016.
2. After section 10C of the Indian Medical Council Act, 1956 (hereinafter referred to as the principal Act), the following section shall be inserted, namely:--
"10D. There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examination.".
3. In section 33 of the principal Act, after clause (ma), the following clause shall be inserted, namely:--
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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"(mb) the designated authority, other languages and the manner of conducting of uniform entrance examination to all medical educational institutions at the undergraduate level and post-
graduate level;".
4. (1) The Indian Medical Council (Amendment) Ordinance, 2016 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Indian Medical Council Act,1956 as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the said Act, as amended by this Act.
DR. G. NARAYANA RAJU, Secretary to the Govt. of India."
37. Similarly, on 05.08.2016, the regulations on Graduate Medical Education, 1997 were, accordingly, amended, fixing the admission process in accordance with the admission schedule indicated in Appendix F by the Medical Council, exercising its powers under Section 33 of the 1956 Act. The notification reads as under:
"MEDICAL COUNCIL OF INDIA AMENDMENT NOTIFICATION New Delhi, the 5th Aguest, 2016 No.MCI-34(41)/2016-Med./123938.-- In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India with the previous sanction of the Central Government, hereby makes the following Regulations to further amend the "Regulations on Graduate Medical Education, 1997", namely:
-
1. (i) These Regulations may be called the "Regulations on Graduate Medical Education, 2016.
(ii) They shall come into force from the date of their publication in the Official Gazette.
2. In Clause 7(6) of the "Regulations on Graduate Medical Education, 1997", after sub clause 7(6A), the following shall be added as under:-
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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(6AA) - The Universities and other authorities concerned for the Academic year 2016-17 only shall organize admission process in accordance with the Time Schedule indicated in Appendix 'F'.
3. In the "Regulations on Graduate Medical Education, 1997", after Appendix 'E', the following shall be added:-
APPENDIX - F TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE (Academic Session 2016-17) Schedule for Admission Seats filled up Seats filled up by the All India Quota State Govt./Institutions Conduct of National NEET 1 NEET 1 Conduct on Eligibility Entrance Test Conduct on 1st 1st May 2016 NEET (NEET 2016) May 2016 2 on 24th July 2016 NEET 2 on 24th July 2016 Declaration of Result of 17th August, 17th August, 2016 Qualifying Examination / 2016 Entrance Examination 1st Round of 22nd August 3rd September to 5th Counseling/Admission to 27th September, 2016 August, 2016 Last date for joining the 3rd September, By 8th September, allotted college and course 2016 2016 2nd Round of 9th to 14th 21st September to Counseling/Admission September, 23rd September, 2016 2016 Last date for joining for the By 20th By 26th September, candidates allotted seats in September, 2016 2nd Round of Counseling 2016 Commencement of 3rd 3rd September, 2016 academic session September, 2016 Last date up to which Not applicable 30th September, students can be admitted 2016 against vacancies arising due to any reason For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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SCHEDULE FOR ON LINE COUNSELING (ALLOTMENT
PROCESS) FOR ALL INDIA QUOTA UG
(MBBS/BDS) SEATS -2016
All India Quota (Online Counseling)
SI. No. Event Duration Days
Main Counseling 22nd August to 25th 4
Registration Choice August, 2016 (Registration days
Filling & Indicative Seat will be open up to 5:00 PM
1 of 25th August 2016 only)
Exercising of Choices and 25th August, 2016 (up to 1 Day Locking 05.00 PM of 25th August, 2 2016) Process of Seat Allotment- 26th August, 2016 1 Day 3 Round 1 4 Round 1 Result Publish 27th August, 2016 1 Day Reporting at the Allotted 28th August to 3rd 7 Days Medical/Dental College September, 2016 (up to against 1st Round 05.00 PM of 3rd September, 5 2016) Exercising of Choices and 9th September, 2016 to 10th 2 Days 6 Locking (Round 2) September 2016 Process of Seat 11th September, 2016 1 Day 7 Allotment-Round 2) 8 Round 2 Result Publish 12th September, 2016 1 Day Reporting at the Allotted 13th to 20th September, 8 Days Medical/Dental College 2016 (up to 05.00 PM of 9 against Round 2 29th September, 2016 Transfer of vacant seats to 20th September, 2016 (After - 10 state Quota 05.00 PM) (Time 05:00 PM mentioned above is by computer server time) Commencement of MBBS/BDS first year session-from 13th September, 2016"
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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38. The questions which, thus, arise for consideration of this Court are:
(i) Whether resort to the percentile system, while calculating the eligibility, is violative of the terms and conditions of the prospectus and the notifications and and in the ever-changing situation, in view of the background noticed above, which would permit the University to adopt the system of percentile, keeping in view the fact that directions had been issued by the Apex Court, for the admissions to be made to the MBBS course, by holding a common entrance test and whether the said action was in consonance with the same? Accordingly, whether the declaration of the results of PMET-2016, is liable to be quashed?
(ii)Whether resorting to the percentile method had disturbed the relative merit, as such, of the students and the candidates of second shift had been put on a better platform and whether the opinion of the subject experts, to whom questions had been referred to, had been wrongly ignored by the University?
(iii)Whether the action of the respondent-University in not displaying the composite result of the students of both the tests, showing their percentile, had led to lack of transparency and fairness and whether the relative performance should be put in public domain?
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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39. Keeping in view the arguments raised, which is based on the background which was prevailing, it is to be noted from the prospectus of the University which became available from 04.04.2016 onwards on the website that the initial cut off date was 30.04.2106. The last date for online submissions with late fees was 03.05.2016. The last date for deposition of application fee was 04.05.2016 till 4 pm. Candidates could download the admit cards from 06.05.2016 onwards and the test was to be held on 15.05.2016 and the time and venue was to be printed on the admit cards. The availability of the question papers and the answer key was to be published on 16-17.06.2016 on the website and objections could be filed upto 18.05.2016. The result was to be declared by 21.05.2016. The prospectus was published on the strength of the then notification dated 18.03.2016. The schedule reads as under:
SCHEDULE OF PMET-2016 Sr. Event Date No.
1. Availability of Prospectus at University 4th April, 2016 website i.e. Www.bfuhs.ac.in onwards
2. Last date for online submission of application 30th April, 2016 form through University website i.e. Www.bfuhs.ac.in Application fee Rs.5000/- (for SC Rs.2500/-)
3. Last date for online submission of application 3rd May, 2016 form with late fee of Rs.3000/- through University website i.e. Www.bfuhs.ac.in Application fee including late fee is Rs.8000/- (for SC Rs.5500/-)
4. Last date for deposition of application fee in 4th May, 2016 any branch of Oriental Bank Challan form Upto 4.00 pm which will be generated after online submission of application form.
OR Fee can also be deposited online through internet banking by due date.
5. Candidates can download Admit card from 6th May, 2016 University website Www.bfuhs.ac.in onwards For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Sr. Event Date
No.
6. Date of conduct of PMET-2016 15th May, 2016
(Sunday)
(Time and venue of
test will be printed
on Admit Cards)
7. Availability of question paper and answer key 16th and 17th May, of PMET-2016 at University website 2016
8. Last date for submission of objection(s) Upto 18th May, regarding question paper and answer key of 2016 PMET-2016
9. Declaration of PMET-2016 Result By 21st May, 2016
40. The relevant clauses which show that the candidates were bound both by the instructions contained in the prospectus, the letter and spirit of the notification and the updated information which were given on the University website, which were required to be followed, read as under:
"PLEASE NOTE-READ CAREFULLY
1.Candidates are required to go through the Prospectus carefully and acquaint themselves.
2. Candidates can apply for PMET-2016 only "Online".
3. Prospectus can be downloaded from the University website www.bfuhs.ac.in and also obtain from University office after paying cost thereof Rs.300/-.
4. Online submission of Application Form for PMET-2016 may be made by accessing University website www.bfuhs.ac.in.
5. Instructions for Online submission Form are available in the Prospectus and on the University website www.bfuhs.ac.in.
6. Candidates must follow the instructions strictly as given in the Prospectus and University website. Candidates not complying with the instructions shall be summarily disqualified.
8. Please visit out website www.bfuhs.ac.in for all regular and uploaded information concerning PMET-2016 and admissions/date of counselling from time to time.
14. In case of any discrepancy or contradiction between the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
34 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -35- Government notification/s and the University instructions contained in the prospectus, the letter and the spirit of the notification/s shall be prevailing, however in academic matters, the University shall be the final authority.
15. This Prospectus is subject to alteration(s) or modification(s) at any time without notice. For updates, please refer University website from time to time.
1. ELIGIBILITY AND QUALIFICATIONS:
Eligibility and qualifications will be as per Punjab Govt. Notification NO.5/5/2016-5HB-III/1185 dated 18/03/2016 and its amendments, if any.
2.xxxx
3.xxxx
4.xxxx
5.xxxx
6.xxxx
7.xxxx
8. SCHEME FOR PMET-2016:
PMET-2016 will be conducted at computer. Candidates are advised to prepare themselves after taking mock test at link available at University website www.bfuhs.ac.in.
1. PMET-2016 will be held online on 15.05.2016.
Detail/procedure of online test will be available at University website.
Candidate should bring Admit Card with Attested Photograph pasted on it. Candidate has to follow the instructions printed on the admit card, meticulously.
IV. SCHEME OF TEST
a) The Test shall have one paper consisting of questions in Physics, Chemistry and Biology (Botany and Zoology). The duration of test will be three hours which includes the time consumed in signatures, thumb impressions, photography and other security measures.
b) There will be 200 Multiple Choice Questions (50 each of Physics, Chemistry, Botany and Zoology). Each question will carry four marks, thus total marks will be 800.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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VIII. SYLLABUS: The syllabus for PMET-2016 is given at Annexure-I of this Prospectus.
11. DECLARATION OF RESULT
1. The result will be available on University website www.bfuhs.ac.in
12. RESULT CARD:
CANDIDATES CAN ACCESS/DOWNLOAD THEIR RESULT CARD FROM THE UNIVERSITY WEBSITE i.e. www.bfuhs.ac.in from any internet source by following the instructions given below:
Directions for accessing/downloading RESULT CARD: a. Access University website www.bfuhs.ac.in b. Click on PMET-2016 RESULT.
c. Click on INDIVIDUAL'S RESULT.
d. Enter individual Roll No. e. Download/print individual result card.
13. MERIT LIST The University will prepare a list of the applications for admission out of the successful candidates in the order of merit based on the PMET-2016 Rank and the provisions of the Punjab Government Notification No. 5/5/2016-5HB-III/1185 dated 18/03/2016 as amended from time to time and subsequent notifications in this regard for the purpose of allotment of seats in the different courses/institutions by personal appearance of the candidates before Selection Committee."
41. It is a matter of record that on 11.04.2016, the review application in the case of Christian Medical College, Vellore (supra) was allowed and the judgment dated 11.04.2016 was recalled by the Apex Court. The matter was taken up, thereafter, by the Apex Court on For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
36 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -37- 27.04.2016 and an assurance was given that the NEET examination for the admission to the MBBS/BDS courses for the academic year 2016-17 would be held and the proposed schedule was to be submitted on 28.04.2016. Thereafter, on 28.04.2016, the schedule was fixed in the case of Sankalp Charitable Trust's case (supra), as under:
"1. AIPMT 2016 to be held on 1st May, 2016 shall be phase I of NEET.
2. Phase II of NEET for the left out candidates shall be held on 24th July, 2016 by inviting applications with fee.
3. Combined result of both the Tests shall be declared on 17th August, 2016.
4. CBSE will provide All India Rank. Admitting Authorities will invite applications for Counselling and merit list shall be drawn based on All India Rank.
5. All associated with conduct of Exam including Central Govt., State Govt., institutions, Police etc. will extend all necessary support to CBSE and permit security measures like use of electronic and communication devices Jammers etc. for timely and fair conduct of the NEET.
6. Any difficulty with regard to implementation of orders of this Court the stake holders may approach this Hon'ble Court."
42. Applications were filed for modification of the order, which were dismissed on 09.05.2016, in Association of Management of Unaided Pvt. Medical & Dental College & others Vs. Union of India & others 2016 (3) SCT 113, keeping in view the fact that the Constitution Bench judgment in Modern Dental College & Research Centre & others Vs. State of Madhya Pradesh & others 2016 (3) SCT 35, in its decision dated 02.05.2016, had rejected the contention that conducting of the entrance test by the State was without legislative competence. Resultantly, the prayer for modification of the order dated 28.04.2016 was rejected. The order dated For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
37 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -38- 09.05.2016 reads as under:
"1. These applications have been filed by the private medical colleges and also by some of the States seeking modification of order dated 28th April, 2016 in W.P.(C)No.261 of 2016.
2. The Medical Council of India (MCI) and the Dental Council of India (DCI) issued notifications dated 21st December, 2010, amending the existing statutory regulations to provide for a single National Eligibility-cum- Entrance Test (NEET) for admission to the MBBS/BDS course.
3. The said notifications were struck down in Christian Medical College, Vellore Vs. Union of India, 2014 (2) SCC 305.
4. The said judgment stands recalled vide order dated 11th April, 2016 in Review Petition (C) Nos.2159-2268 of 2013.
5. On 28th April, 2016, in W.P.(C)No.261/2016 a statement was made by the learned counsel for MCI, CBSE and Union of India that for the academic year 2016-17, NEET would be held.
6. We have heard the learned counsel for the parties.
7. In recent Constitution Bench judgment dated 2nd May, 2016, in Modern Dental College & Ors. Vs. State of M.P. & Ors. in Civil Appeal No.4060 of 2009 etc., the stand of the private medical colleges (including minorities) that conducting of entrance test by the State violated right of autonomy of the said colleges, has been rejected. The State law providing for conducting of entrance test was upheld, rejecting the contention that the State had no legislative competence on the subject. At the same time, it was held that the admission involved two aspects. First, the adoption of setting up of minimum standards of education and coordination of such standards which aspect was covered exclusively by Entry 66 of List I. The second aspect is with regard to implementation of the said standards which was covered by Entry 25 of List III. On the said aspect, the State could also legislate. The two entries overlap to some extent and to that extent Entry 66 of List I prevailed over the subject covered by Entry 25.
8. Prima facie, we do not find any infirmity in the NEET regulation on the ground that it affects the rights of the States or the private institutions. Special provisions for reservation of any For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
38 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -39- category are not subject matter of the NEET nor rights of minority are in any manner affected by NEET. NEET only provides for conducting entrance test for eligibility for admission to the MBBS/BDS course.
9. We thus, do not find any merit in the applications seeking modification of order dated 28th April, 2016.
10. Only other contention relates to perceived hardship to the students who have either applied for NEET-I but could not appear or who appeared but could not prepare fully thinking that the preparation was to be only for 15% All India seats and there will be further opportunity to appear in other examinations. To allay any such apprehension, we direct that all such eligible candidates who could not appear in NEET-I and those who had appeared but have apprehension that they had not prepared well, be permitted to appear in NEET-II, subject to seeking an option from the said candidates to give up their candidature for NEET- I. It would be open to the respondents to reschedule the date of holding NEET-II, if necessary. To this extent the earlier orders stand modified.
11. We may also add here that to ensure total credibility of the examination to be held by the CBSE, the Oversight Committee appointed by this Court vide the aforesaid judgment dated 2nd May, 2016 shall also oversee the NEET-II examination to be conducted by the CBSE.
12. In view of the above, it is also clarified that only NEET would enable students to get admission to MBBS or BDS studies.
13. In view of the above order, all the applications and writ petitions seeking modification of order passed on 11th April, 2016, stand disposed of.
W.P.(C)261/2016 :
14. In view of the above order, W.P.(C)No.261/2016 also does not survive and that is also disposed of."
43. Thereafter, on 24.05.2016, Ordinance No.4 was issued by the Union of India, which gave the right to the State Governments to opt out of the NEET, for the academic year in question, for the State Government For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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44. The same led to the second notification dated 10.06.2016 (Annexure P2) being issued by the State Government, going back on its earlier decision to cancel the PMET-2016. In the meantime, as noticed, the decision was also taken to hold the PMET-2016, within the State of Punjab by modifying the earlier decision whereby the test was also to be held in the adjoining states also. The said entrance test was to be held in 2 shifts and eventually, the same was held on 11.06.2016, almost a month later. On account of the subsequent notifications and the result being declared, the present writ petitions were preferred and challenge was raised on the grounds noted above. It is in this peculiar facts and circumstances that the notification dated 10.06.2016 is not part of the prospectus for the present year, having superseded the earlier notification dated 10.03.2016, as per Clause 28. The relevant portion of the notification of the clauses which have been referred to, are reproduced as under:
1. The Governor of Punjab is pleased to notify the admission criteria to Under-Graduate Degree courses i.e. MBBS/BDS for the year 2016 in the Government & Private Medical/Dental Institutes in the State of Punjab.
2. All admissions of Govt. Quota seats in Govt. and Private Institutions shall be based on merit of Punjab Medical Entrance Test-2016 (PMET-2016) and all admissions in Private/Minority Institutions in Management Quota Seats including NRI and Minority Quota seats shall be based on merit of National Eligibility cum Entrance Test (NEET-2016) as per Ordinance dated 24.05.2016 issued by Government of India.
3. The Governor of Punjab is pleased to authorize Baba Farid University of Health Sciences, Faridkot (BFUHS) to conduct PMET-2016 for Govt. Quota seats in Govt. and Private For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Institutions and to conduct centralized counselling for admissions on the basis of marks obtained in PMET-2016 and NEET 2016 as applicable.
5. Candidate must have passed in the subjects of Physics, Chemistry, Biology/Biotechnology and English individually and must have obtained a minimum of 50% marks (45% for Persons with Locomotor Disability of Lower Limbs and 40% for SC/BC) taken together in Physics, Chemistry and Biology/Biotechnology (PCB) in 10+2 examination or other equivalent examination of 10+2.
8. In order to be eligible for admission to Govt. Quota Seats in MBBS/BDS course, it shall be necessary for the candidate to obtain minimum of 50% marks (45% for candidates with Locomotor Disability of Lower Limbs and 40% for SC/BC categories) in PMET-2016.
The inter-se-merit of candidates for tie-breaking in PMET- 2016 shall be determined in the following manner:
a. Candidates obtaining higher marks in Chemistry (Botany & Zoology) in the PMET-2016.
b. Candidates obtaining higher marks in Chemistry in the PMET-2016.
c. Candidates older in age.
9. Eligibility criteria for admission in Private/Minority Institutions of Management Quota Seats including NRI and Minority Quota seats in MBBS/BDS course shall be in accordance with eligibility criteria as prescribed in Chapter 6 of the information bulletin for National Eligibility-cum- Entrance Test (session 2016-17) issued by CBSE.
10. After the declaration of the PMET-2016 and NEET-2016 result, the candidates shall apply on the specific proforma for all seats, except All India quota seats, to Baba Farid University of Health Sciences, (BFUHS), Faridkot. Admission shall be made by the selection committee through a centralized counselling by BFUHS, Faridkot on the basis of inter-se merit of PMET-2016 and NEET-2016.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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11. Barring admissions, which shall be governed by the provisions of para 2 above, the rest of the matters related to admission to private institutions shall be as per the provisions of the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee & Making of Reservation) Act 2006.
25. GENERAL CONDITIONS
a) The University shall display combined merit list of all candidates including reserve category and also a separate merit list of different categories which should be displayed on the University website at least 7 days before the counselling.
28. This notification supersedes all the notifications for admission to MBBS/BDS courses in the State, issued earlier.
45. A perusal of the above relevant clauses by the notification dated 10.06.2016, would go on to show that admissions are to be based on merit of the candidates who had appeared in the PMET-2016 for the Government quota seats in both Government and private institutions, as per Clause 2. The centralized counselling is to be done, as per provisions of Clauses 3 & 10, on the basis of the marks obtained in PMET-2016 and NEET-2016, which would necessarily entail the filling up of both the State quota seats and the management seats, as per the requirement of having 50% minimum marks in the qualifying examination of +2 examination or its equivalent. Similarly, the requirement was to obtain minimum 50% marks to be eligible for admission to the Government quota seats under Clause 8, for general category whereas under Clause 9, the eligibility criteria was prescribed in the NEET-2016, bulletin. Thus, the admission was to be done by the centralized counselling on the basis of inter se merit of both the said For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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46. By resorting to the percentile method, the respondent- University has only combined the merit of the 2 PMET-2016 tests held by the State. The purpose of resorting to the percentile method was only an equalizer in as much as a joint combined list could be facilitated by applying the said procedure. The said formula is only a measure to tell what percent of the total frequency which is scored at or below the said measure and which of the candidates had failed to make the 50% cut. It is, thus, only a methodology adopted by the statisticians and by fixing the cut-off at 50th percentile in consonance with the eligibility clauses laid down of the prospectus and by calculating the cut-off at 78.8080088. It only goes on to show that the candidates who had secured the same were, accordingly, the last one to make the cut, amongst the whole lot of candidates who had given the 2 set of examinations. A percentile rank is the percentage of scores that fall at or below a given score. Thus, percentile is usually used to determine the relative standing of an individual in an population or a rank position of an individual. It is usually used for test scores for graduation standings and is a easy way to convey the rank of an individual relative to the other individual. A percentile is a measure which tells the percent of the total frequency scored at or below that measure. A percentile rank is thus, the percentage of scores that fall at or below the given score. The said candidate had only had 50% more individuals above him and similarly, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
43 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -44- 50% below him. The methodology resorted to was only splitting the data into 2 pieces, one's who had made the cut and the other who had not. The same gives the position amongst the number of candidates who appeared in the examination and the one at 99 had gained the highest marks amongst the entire candidates and explains how a test taker is in comparison to other test takers. In comparison, the percentage rank would explain how a test taker did in the test itself and the percentage is used in the test where an individual's performance is important than the relative performance. Thus, it is comparing one test taker's result to a large sampling of data and determines the best within the students. The purpose being, as noticed in the present case, being to ensure that merit was maintained amongst both the two set of paper takers of PMET-2016.
47. Clause 8.7 & 8.8 of the prospectus of AIIMS (Annexure R3), thus, reads as under:
"8.7 MINIMUM CUT-OFF SCORES In accordance with decision of the Governing Body, AIIMS, New Delhi dated 26.11.2009 and the past practice adopted by AIIMS, New Delhi, the minimum cut-off necessary in the Entrance Examination to determine eligibility for admission is:
Since the examination will be held in two shifts and a Normalization Procedure will be used (see 8.8); the Percentile score corresponding to the above cut-offs will be used to determine eligibility. In the event of the percentiles for the two shifts being dissimilar / unequal, the lower of the two will be the eligibility cut-off for that category for all candidates (i.e. both shifts).
For example if the 50% marks correspond to a Percentile score of 90 in Shift 1 and to a Percentile score of 88 in shift 2 then all those equal to or above 88 Percentile (Percentile score of 100 to For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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88)in both shifts will become eligible in General Category. Similar method will be adopted for the other categories to determine eligibility cut-offs.
8.8 NORMALIZATION PROCEDURE This year, since there would be two shifts, a Normalization Procedure is being adopted as decided by experts based on analysis of past MBBS Entrance Examinations conducted by AIIMS, New Delhi. This will be utilized to decide on the inter-se merit / ranking [used during Counseling for allotment of seats] between those who appeared for the examination.
The normalization procedure that will be adopted is based on PERCENTILES.
Percentile Scores Percentile scores are scores based on the relative performance of all those who appear for the examination. Basically the marks obtained are transformed into a scale ranging from 100 to 0 for each group (shift) of examinees.
The Percentile Score indicates the percentage of candidates that have scored EQUAL TO OR BELOW (same or lower raw scores) that particular Percentile in that examination. Therefore the topper (highest score) of each group (shift) will get the same Percentile of 100 which is desirable. The marks obtained in between the highest and lowest scores are also converted to appropriate Percentiles.
The Percentile score is the Normalized Score for this examination.
The percentile Scores will be calculated to 7 decimal places to avoid bunching effect and therefore reduce ties. In this method of scoring the HIGHEST SCORE in each paper (irrespective of the raw scores / percentage obtained) will be the 100 Percentile indicating that 100% of candidates have scores equal to or lesser than the the highest scorer/ topper for that shift. For example, in Shift 1 if the highest score is 80% and in Shift 2 the highest score is 82%, both scores would be normalized to 100 Percentile for their respective group / shift.
The lowest score would have a percentile depending on the total number of candidates who have taken the examination. For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
45 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -46- Supposing 100000 students have taken the examination in a Shift and the highest score (A) for that group / shift is 160 / 200 (80%) and the lowest score (B) - 3/ 200 (-1.5%). If there is no other candidate who has scores equal to either A or B, then the Percentile Score of A, the top scorer, shall be 100 [because all or 100% of candidates have scored EQUAL TO OR LESS THAN A]. The Percentile Score of B, the lowest scorer, shall be 0.001 since the percentage of candidates with scores EQUAL TO OR BELOW would be 0.001 [(1/100000)*100]. If another candidate (C) had a raw score similar to that of A, then both A and C would have a Percentile Score of 100. Similarly if another candidate (D) had a raw score equal to that of B then both B and D would have a Percentile score of 0.002 [(2/100000)*100]. Ties would therefore have similar Percentiles.
The following is a further explanation of the interpretation of the scores in an examination with 100 candidates.
• If candidate A's Percentile score is 100, it indicates that amongst those who have taken the examination, 100% have scored either EQUAL TO OR LESS THAN the candidate A. It also indicates that no candidate has scored more that candidate A. • If candidate B's Percentile score is 90, it indicates that 90% of the candidates who have taken the examination have scored either EQUAL TO OR LESS than candidate B. It also indicates that remaining candidates have scored more than candidate B. • If candidate C's Percentile score is 50, it indicates that 50% of the other candidates who have taken the examination have scored either EQUAL TO OR LESS than candidate C. It also indicates that remaining half of those who took the examination have scored more than candidate C. • If candidate D's Percentile score is 30, it indicates that 30% of the candidates who have taken the examination have scored either EQUAL TO OR LESS than candidate D. It also indicates that remaining have scored more than candidate D. • If candidate E's Percentile score is 1, it indicates that none of the candidates who have taken the examination have scored either EQUAL TO OR LESS than candidate E. It also indicates that all remaining candidates who took the examination have scored For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
46 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -47- more than this candidate." 11 AIIMS MBBS PROSPEC
48. A similar procedure, as noticed above, was also being followed by the Institute at AIIMS and Clause 8.8 of the prospectus also went on to show that similar resort had been made where there was more than one examination held for the same test and having different examination papers. Being an established procedure, as such, to discriminate between the one who had made the cut and ones who had not made the cut, in the herd, the name has been given as percentile. It only tells us the frequency of the total marks, as a measure and the percentile rank would be the percentage of the candidate who scored above the cut-off and the one who is below the score, for which a formula has been prescribed. Once reference has been made to this by calculating the highest marks and the lowest between the two tests and who had qualified between the two and taking a mean between the two tests, the respondents have resorted to the percentile method, to draw the merit-list of both the tests and keep out the ineligibles. No fault, as such, can be found with it, on account of the fact that the word 'percentile' has not been mentioned in the notification.
49. Reliance can be placed upon the judgment of the Apex Court in Charles K. Skaria & others Vs. Dr. C. Mathew & others (1980) 2 SCC 752. The Apex Court was examining the question that whether a decision of the State Government, modifying the cut-off date which had been fixed in the prospectus. The said decision of the State Government had been upheld by the Single Judge of the Kerala High For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
47 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -48- Court. However, the Full Bench, in appeal, held that the marks of the Diploma test were to be received by 31.03.1979 and the acquisition of qualifications, subsequently, on the last date and the decision of the State Government, would have the effect of overriding Clauses 12 & 13(k) of the prospectus. Accordingly, it was held that a prospectus was not a scripture and the over-stress on literality undermines the substantiality of the guidelines in the prospectus. Resultantly, the SLP's were allowed by giving the benefit to the 3 of the candidates who had been disqualified. It was held that decision of the State Government was never stated to be a mala fide move in the official exercise and there was nothing dubious, shady or unfair, by giving the benefits to the students of the medical college, Trivandrum, whose results had been delayed and thus, they had been left out of the zone of consideration. It was further held that the prospectus itself provided the Government to modify the method as had been held by the Single Judge and therefore, the direction to the Selection Committee to take into consideration the diplomas, could not be held to be objectionable. Herein also, the relevant clauses of the prospectus having been highlighted above, showing that the University had such a power. Relevant portion of the judgment read as under:
"23. We are aware that when a statute vests a public power and conditions the manner of exercise of that power than the law insists on that mode of exercise alone. We are here unconcerned with that rule. A method of convenience for proving possession of a qualification is merely directory. Moreover, the prospectus itself permits government to modify the method, as the learned single Judge has pointed out. In this view, we see nothing objectionable with the government directive to the selection For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
48 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -49- committee, nor in the communication to the selection committee by the university, nor even in their taking into consideration and giving credit for diplomas although the authentic copies of the diplomas were not attached to the application for admission. A hundred examples of absurd consequences can be given if the substance of the matter was to be sacrificed for mere form and prescriptions regarding procedures.
24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanises the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in Administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and an mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and government orders from public offices. This frustrating delay was by-passed by the State Government in the present case by two steps. Government informed the selection committee that even if they got proof of marks only after the last date for applications but before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory rule nor act arbitrarily by accepting and acting upon these steps. Had there been anything dubious, shady or unfair about the procedure or any mala fide move in the official exercises we would never have tolerated deviations. But a prospectus is not scripture and commonsense is not inimical to interpreting and applying the guidelines therein. Once this position is plain the addition of special marks was basic justice to proficiency measured by marks."
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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50. The Full Bench judgments of this Court were, accordingly, sought to be distinguished by submitting that the question and controversy before the Full Bench had to be taken into consideration and could not be a blind approach by applying the principle that the prospectus would have the force of law. The rule of law had to be followed as a means to an end and merit had to be kept in mind and the mischief had been sought to be avoided. It is, in this context, to be noticed that the judgment of Amardeep Singh Sahota (supra), while answering the reference of the Learned Single Judge, to the question posed, which was, whether the admission to the Sports category could be made purely on the basis of the achievements in the sports, was to be done, in accordance with the instructions dated 7/12.06.1991, initially laid down the ancillary question also. It was, accordingly, held that admissions could not be made purely on the basis of the achievements in the sports but were to be made in accordance with the instructions referred to above and merit had to be inter se determined at the same grade by excluding the students who did not get the minimum qualifying marks. The action of the Government whereby the minimum qualifying marks had been waived of by a subsequent decision after the students had appeared in the examination on the basis of the instructions laid down in the said prospectus thus, was contrary and as such, was held to be invalid in law.
51. Resultantly, reference was placed upon the observations made by the Justice Krishna Iyer J. in R.S.Joshi Vs. Ajit Mills AIR 1977 For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
50 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -51- SC 2279 that "a law has to be adjudged for its constitutionality by the generality of cases it covers, not by the freaks and exceptions it martyrs", to submit that the merit was not being sacrificed and if the persons had not made the cut amongst 2 groups of the students who had given the test, then the Court would not interfere, in such circumstances.
52. It is to be seen that for the MBBS course, there are 548 seats available in the Government quota, throughout the State, as per the data furnished by counsel for the University. Similarly, for the BDS seats, there are 611 seats to be filled up. For these 1159 seats, 5066 candidates had finally qualified who have secured the 50th percentile. The argument that by virtue of giving undue grace marks, the one's who had not qualified would make the cut, is, as such, without any substance. The one's who barely make the cut would be nowhere be close to the zone of consideration for admission to the 548 seats for the MBBS course and 611 seats for the BDS course, which would be grabbed by the students who are having percentile in the 90s and are at the top of the table. A uniform system of gradation which has not been changed at the last moment has been applied and neither any merit-list had been drawn earlier which has been sought to be withdrawn at the cost of the petitioners. It has only been done keeping in view the exigencies of the situation for the current year whereby the admissions to the management seats are to take place, as per the directions of the Apex Court, on the basis of 2 examinations each of NEET and for the State Government quota seats, on the basis of the PMET. As noticed, the NEET is For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
51 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -52- following the system of percentile and similarly, on account of holding 2 tests, even the PMET candidates are being judged on the same parameters. Therefore, the argument that the same was not liable to be done, in view of the lack of mention in the prospectus/notification, is without any basis.
53. Reference can be made to the judgment of the Constitution Bench of the Apex Court in the case of M.Nagraj & others Vs. Union of India & others (2006) 8 SCC 212 wherein the issues of constitutional amendment were subject matter of dispute and it was held that the Constitution is not a static document and a strict literal approach cannot be adopted and the same should be flexible, to meet the newly approaching problems and challenges and it was, accordingly, held that the Constitution as an organic whole is to be seen. Relevant portion of the judgment read as under:
"19. The Constitution is not an ephermal legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.
20. This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
52 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -53- constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In the case of Sakal Papers (P) Ltd. & Others v. Union of India and others this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in the case of A.K. Gopalan v. State of Madras . Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that 'procedure established by law' means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India and For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
53 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -54- another that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression 'life' in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, freedom of information has been held to be implicit in the guarantee of freedom of speech and expression. In India, till recently, there is no legislation securing freedom of information. However, this Court by a liberal interpretation deduced the right to know and right to access information on the reasoning that the concept of an open government is the direct result from the right to know which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a).
21. The important point to be noted is that the content of a right is defined by the Courts. The final word on the content of the right is of this Court. Therefore, constitutional adjudication plays a very important role in this exercise. The nature of constitutional adjudication has been a subject matter of several debates. At one extreme, it is argued that judicial review of legislation should be confined to the language of the constitution and its original intent. At the other end, non- interpretivism asserts that the way and indeterminate nature of the constitutional text permits a variety of standards and values. Others claim that the purpose of a Bill of Rights is to protect the process of decision making.
22. The question which arises before us is regarding nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine has essentially developed from the German Constitution. This development is the emergence of the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
54 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -55- constitutional principles in their own right. It is not based on literal wordings."
54. Therefore, keeping in view the above principles, it is to be seen that in view of the fluid situation, which was emerging on account of the sequence of events narrated in the paras above, the University could not be bound down, as such, by the original notification which was part of the prospectus and which was, admittedly, superseded by a subsequent notification and the changing circumstances, which led to the application of the percentile system.
55. Similarly, judgment of Raj Singh (supra) referred to, decided the issue in question was whether the student could claim admission for the BDS course once he had specifically not opted for the same in the admission form and keeping in view the terms of the prospectus. It was, accordingly, held that the same would bind the candidate having a force of law. The same was only for the purposes of ensuring that there was no uncertainty in the matter of admission and candidates could not keep on changing their options. Accordingly, by referring to Sachin Gaur (supra), wherein fixing of the cut-off date was the issue before the Full Bench and the claim of the candidate that his result had not been declared of the Diploma course, had led to his ineligibility, though he had scored a high position in the entrance test. It was, in such circumstances, the validity of the cut-off date was upheld by following the principle that the prospectus would have the force of law.
56. In Rahul Prabhakar's case( supra), the Full bench also was considering whether the incomplete forms thus, received after the cut-off For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
55 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -56- date, could be entertained and whether the postal authorities were the agents, as such, of the Universities. In Indu Gupta's case (supra), the Full Bench was dealing with the fact that the issue of failure of the Director of Sports, to issue gradation certificates in time was obligatory and that the application had to be complete and otherwise, liable to be rejected.
57. In Rupinder Singh's case (supra), the Full Bench was considering the issue whether the result of the supplementary examinations, would revert back to the supplementary examinations. Resultantly, it was held that it could not have a retrospective effect and therefore, admissions could not be granted if the candidate did not possess the qualifications on the date of the interview, on the last date of filing of the application, as provided in the prospectus.
58. Interestingly, reliance was placed, by both the sides, upon the judgment of the Three Judges Bench of the Apex Court in Rajiv Kapoor's case (supra). Counsel for the University submits that the Apex Court had not approved the view of the Full Bench, in Amardeep Singh Sahota (supra) though noticing the same and had allowed the appeals. It was held that the prospectus and whether the orders of the Government had to be construed in such a manner that the inter se merit of the inservice candidates had to be properly assessed. The view taken by this Court had, thus, been reversed by holding that it amounted to applying a different criteria for inservice candidates whereas the inter se merit of the inservice candidates had to be properly assessed on the basis For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
56 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -57- of their credentials and performance in service and not on merely deciding the merit on the basis the open test. The instructions to this effect had already been issued by the Government but on account of not having been incorporated in the prospectus, the litigation had ensued. Relevant portion reads as under:
"13. The fact that the list to be prepared on the basis of marks in written test had to be two and a half times the number of seats available in each category also is an indicator that it was not by itself, the final list of selection for admission to professional courses in a college. Even if there had been any default on the part of the University in properly specifying this aspect despite communication of the Government orders every time to the University with a direction to incorporate them in the Prospectus/syllabus, the efficacy and binding force of the Government orders and the necessity to apply the criteria laid down therein to finally determine the merit of the candidates to be selected for admission against the seats reserved for HCMS candidates in terms of the criteria laid down in those orders cannot be overlooked or given up once for all. The Prospectus as well as the orders of the Government in our view have to be construed in such a manner that the infer se merits of the sendee candidates are properly assessed on the basis of their credentials and performance in service and not merely of theoretical knowledge of the subject as in the case of non-service candidates belonging to the other categories. The construction placed by the High Court, if accepted may result in discrimination on account of applying different criteria of total marks for open candidates and in service candidates without noticing the distinguishing features relevant for the purpose of assessment of merit in the case of HCMS candidates. We find no reason or justification to allow any deviation from the method of assessment uniformly followed in all the previous years for such selection. For all the reasons stated above, we have no hesitation in holding that the High Court committed a serious error in tills regard which vitiates its judgment and the same is accordingly set aside. We hold that For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
57 of 129 ::: Downloaded on - 11-09-2016 01:08:13 ::: CWP-12963-2016 (O&M) & other connected cases -58- the merits to the HCMS candidates are required to be adjudged in terms of the criteria contained in the Government orders noticed above and the selections can be made for admission against the reserved seats, as per the determination of merit by the Selection Committee constituted for the purpose.
xxxx xxxx xxxx
17.The mess that has occurred leading to the present litigation seem to be more on account of the inept drawing and publication of the Prospectus by the University and not properly carrying out the binding orders of the Government and of too many orders passed from time to time, being allowed to stand piecemeal independently. The Government would do well in future lo publish at the beginning of every academic year, even before inviting applications a compendium of the entire scheme and basis for selection carrying out amendments up-to-date anid the Prospectus also specifically adopting them as part of the Prospectus, to avoid contusion in the matter of selections, every year."
59. Similarly, Parmender Kumar (supra) is also a judgment of the Three Judges of the Apex Court, referred to, to show that the condition of service of the inservice candidates had been changed from 3 years to 5 years and the modification had been done after the merit-list had been prepared and the result declared. One day before counselling, the criteria had been changed and on such account, interference had been done by setting aside the orders passed by this Court. Relevant observations read as under:
"20. From the facts as disclosed, the only question which emerges for decision in these appeals is whether the State Government had any jurisdiction and/or authority to alter the conditions relating to admission in the Post-Graduate or Diploma Courses in the different disciplines in medicine which had earlier been indicated in the prospectus, once the examination for such admission had been conducted and the results had been declared and a select list For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
58 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -59- had also been prepared on the basis thereof. In other words, once the process of selection had started on the basis of the terms and conditions included in the prospectus, was it within the competence of the State Government to effect changes in the criterion relating to eligibility for admission, when not only had the process in terms of the prospectus been started, but also when counselling was to be held on the very next day, which had the effect of eliminating many of the candidates from getting an opportunity of pursuing the Post-Graduate or Diploma Courses in the reserved HCMS category."
60. A perusal of the above facts, thus, would go on to show that by fixing the percentile at 50%, a normalization exercise has been conducted by the respondent-University on account of the 2 shifts. It is also to be noticed that in the prospectus, there was no such condition that the PMET-2016 was to be held in 2 shifts and it was only on account of the exigencies of the situation and on account of the lack of computer based modules, in relation to the number of candidates who would give the examination, the same was conducted in 2 shifts. The decision to resort to the percentile issue was before the result was declared and it is not the case and also cannot be the case of the petitioners, as such, that the same has been done to favour certain set of candidates, as the said principle would apply across the board. A similar paper was not there for the 2 set of candidates and different level of difficulties would be there in both the papers. Similarly, the answer keys also, which had been given, would, accordingly, vary and there would be more wrong options in one set than the other, as has been sought to be redressed by the subject experts. The percentile score, which was to be scored till 7 decimal places, would only resulting in avoidance of the bunching effect For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
59 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -60- and reducing the ties and would be judging the candidates on a comparative scale to assess their merit. The dictionary definition of 'percentile' and 'percentage' from the "Oxford Dictionary of English", Second Edition, reads as under:
percentile percentage
Each of the 100 equal A rate, number, or amount in each hundred,
groups into which a the percentage of Caesareans at the hospital
population can be was three per cent higher than the national
divided according to average, a large percentage increase.
the distribution of Any proportion or share in relation to a
values of a particular whole: only a tiny percentage of the day
variable. trippers are aware of the village's
Each of the 99 gastronomic distinction
intermediate values of An amount, such as an allowance or
a random variable commission, that is a proportion of a larger
which divide a sum of money: I hope to be on a percentage.
frequency distribution Informal personal benefit or advantage: I
into 100 such groups. don't see the percentage in selling perfectly
good furniture.
The "Webster's Encyclopedic Unabridged Dictionary of the English Language" would go on to show that the system of percentile has been prevalent from 1880-85, in correspondence to the system of percentage, from 1780-1790. The definition reads as under:
percentile percentage
1. One of the values 1. a rate or proportion per hundred
of a variable that 2. an allowance, commission, or rate of divides the interest calculated by percent distribution of the 3. a proportion in general: Only a small variable into 100 percentage of the class will graduate with groups having equal honors.
frequencies: Ninety 4. gain; benefit, profit; advantage. [1780-90; percent of the values PERCENT + -AGE] -per.cent/aged, adj.-
lie at or below the Usage. See percent.
ninetieth percentile,
ten percent above it.
2. of or pertaining to a
percentiles. [1880-85;
PERCENT +-ILE]
Similarly, "The New Shorter Oxford English Dictionary of For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
60 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -61- Historical Principles" edited by Lesley Brown, shows the definition of 'percentile' and 'percentage', as under:
percentile percentage
Each of the 99 A rate or proportion per cent; a quantity or
intermediate values of amount reckoned as so many hundredth parts a variate which divide of another, esp. of the whole of which it is a a frequency part; a part considered in its quantitative distribution into 100 relation to the whole, a proportion (of groups each something) containing one per 2. Personal benefit or advantage; probability cent of the total of a successful outcome (in a situation, population (so that course of action, etc.) Colloq. M19 e.g. 50 per cent have 1. Theatre Research International A slightly values below the 50th higher percentage of his plays appear to percentile); each of reach the stage.
the 100 groups so 2. J.Porter There was no percentage in formed. hanging around the airport.
Phrases: play the percentages slang play safely or methodically with regard to the odds in favour of success.
Comb.: percentage point a unit used in expr.
the numerical difference between two percentage.
Percentage-wise adv. As a percentage;
relatively: E20.
"The New Oxford American Dictionary" edited by Elizabeth J.Jewell Frank Abate, also defines the terms as under:
percentile percentage
Each of the 100 equal A rate, number, or amount in each hundred,
groups into which a the percentage of Caesareans at the hospital
population can be was three percent higher than the national
divided according to average, a large percentage increase in the
the distribution of population over 85.
values of a particular An amount, such as an allowance or variable. commission, that is a proportion of a larger Each of the 99 sum of money: I hope to be on a percentage. intermediate values of Any proportion or share in relation to a a random variable that whole: only a small percent of black divide a frequency Americans have Caribbean roots. distribution into 100 Informal personal benefit or advantage: you such groups: the tenth explain to me the percentage in looking like percentile for weight. a hoodlum.
"The Readers Digest-Oxford Complete Wordfinder", Edited For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
61 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -62- by Sara Tulloch, has defined 'percentile' and 'percentage', as under:
percentile percentage Statistics one of 99 1. A rate or proportion per cent. values of a variable 2. a proportion dividing a population 3. Colloq. personal benefit or advantage. into 100 equal groups 2 Share, part, portion, proportion, interest, as regards the value of piece, commission, colloq. Cut. that variable.
Thus, it can be said that percentile is an exactitude of result, which would demolish the discriminations and is a statistical mode of classifying and normalization, which is prevalent in grading inter se merit.
61. It is also pertinent to mention in the Regulations of Graduate Medical Education, 1997 of the Medical Council of India, vide notification dated 15.02.2012, Clause 5(5)(ii) was substituted, which provided that for admission to the MBBS course, it would be necessary to get 50th percentile in the National Eligibility-cum-Entrance Test to the MBBS courses. Similarly, a 40th percentile and 45th percentile for reserved categories and handicapped category, respectively, was provided. Relevant part reads as under:
"In the clause 5, sub-clause II, as amended vide notification No. MCI-31(1)/2010-Med/49068 dated 21st December 2010, the following shall be substituted as under, in terms of notification dated 15.02.2012.
"II. In order to be eligible for admission to MBBS Course for a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in 'National Eligibility-cum-Entrance Test to MBBS course' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
62 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -63- the minimum marks shall be at 40th percentile. In respect of candidates with locomotory disability of lower limbs terms of Clause 4(3) above, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in 'National Eligibility-cum-Entrance Test for admission to MBBS course." This further give weight to the aspect that percentile is a recognized modem of assessing the merit, relatively amongst the candidates.
62. Keeping in view the above, one has to keep in mind the fluid situation for the present year, which had followed, due to the passing of various orders by the Apex Court. The candidates were bound to follow the instructions, as per clause 6, given in the prospectus and the University website and keep themselves updated, as per clause 8.
63. Clause 14 further provided that the University's decision on academic matters would be final. However, the spirit of the notification would prevail. The spirit of the notification is that the inter se merit is to be maintained for admission purposes which is the sole criteria. Counsel for the private-respondents, Mr.I.P.S.Kohli, has referred to judgments of the Rajasthan High Court in Dr.Naveen Agarwal & 4 others Vs. State & others 2013 (2) S.C.T. 535 to submit that in similar circumstances, when 2 examinations had taken place, on account of the some technical snag, resort had been made to the adoption of percentile procedure. The Court had accepted the said procedure and held that it was one of the universally accepted method to meet out such contingencies. Relevant portion reads as under:
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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"46. In the instant case, the facts have come on record that admissions are made on the basis of merit cum preference and mere qualifying the examination is not the touchstone for admission and looking to the number of seats available against in-service or non-service category, those candidates who got rank beyond 200 in their respective merit, have no chance of their consideration for admission. However, it may exceed upto 25 more ranks if candidates for one reason or the other, may not turn up but atleast those beyond 225 ranks will have no remotest chance of their admission.A comparative analysis for students appeared on 11th & 14th February, 2012 and if their rank could be within 200 is looked into then majority of them are coming from examinees of 14/02/2012 - against whom prime grievance is raised herein. This Court finds reasonable justification in their grievance as well and if examination of common subject if held on two different dates and such a result could not be anticipated and is startling rather method of percentile (SEP) method is one of universally acceptable to meet out such contingencies and being adopted in various competitions; even the MCI in its regulations has made an amendment making it effective from academic session 2013-14 and the admissions will be made on the basis of percentile method."
64. It is further submitted that the said order has been upheld by the Division Bench in Dr. Anil Kumawat & others Vs. Naveen Agarwal & others 2012 (4) W.L.C. 31, which in principle, took the view that the decision of the experts was not to be readily interfered with, in view of the same reliance upon the judgment by the petitioners of Rajasthan High Court in Rishabh Saxena (supra) would be of no avail. The observation in Dr. Divya P. Wangoo Vs. The Director, Post Graduate Institute of Medical Education & Research 2015 (1) SCT 141 was also referred to, to submit that it was a scientific concept. The said para reads as under:
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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"4. There can be no effort on my part to explain a scientific concept. It should be the petitioner's own duty the understand the same. But if she vexes herself or the court by a plea which is most untenable, she must be reminded that she is allowing herself the indignity of coming to the court with poor understanding that she is meritorious, when she is not. Percentile is a statistical measure of distribution for a given set of data. It is level below which a certain percentage of data falls. If a person that scores the highest mark, we say, he is in the 100th percentile, for, it is another way of saying of the rest of candidates, namely, all the rest of students, viz the whole 100% of them fall below him. If the person is in the 50th percentile, he falls at the median, for, it is another way of saying there are 50% of candidates who have scored below him and 50% of candidates above him. Here, in this case, if the petitioner has scored in percentage 15.6609 when the highest mark was 58.6219, her own position in the percentile must be seen with reference to the highest mark who has scored 58.6219. Consequently, her own percentile cannot be 98 or 99, for, that would mean a candidate who has scored as low as 15.6609 still has as high a percentage of 98% or 99% of students who are below her marks. It is a preposterous contention."
65. Clause 15, thus, provided that the prospectus was subject to alterations/modifications, at any time, without notice. Clause 13 provided that the University has to prepare a list of applicants out of the successful candidates, in the order of merit, as per the PMET-2016 and the fact remains that the merit principle is being followed.
66. It is also to be noticed that there are no personal mala fides against any of the officials of the University or that some particular students out of the 15000 approximately students who had appeared were to be granted undue benefits. Neither any of the officials have been impleaded as party to accuse them of conducting the proceedings in a For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
65 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -66- manner which was mala fide or arbitrary, for personal benefits. The Apex Court in Sanchit Bansal & another Vs. Joint Admission Board (JAB) & others 2011 (15) SCR 1057 held that in such circumstances, in the absence of violation of law, mala fides and arbitrariness, the writ Court would not interfere and where the action is by adopting the prescribed procedure which is uniform and non-discriminatory, it could not be described as arbitrary or capricious. It was also noticed that selection process was to be upgraded and fine tuned, year after year, with periodic changes in the process so that the same remains relevant and meaningful. Relevant observation reads as under:
"19. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes. Courts will interfere only if they find all or any of the following : (i) violation of any enactment, statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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67. It is in this background, Senior Counsel for the University has, thus, sought to justify that once the University had exercised its discretion and appointed the subject experts who have gone into the matter in depth, it is not for this Court to sit over and above those experts' opinion and take over the role of the examiner, as is being argued by counsels for the petitioners, for the necessary relief. The Apex Court in U.P. Public Services Commission Vs. Subhash Chandra Dixit & others 2003 (12) SCC 701, while setting aside the Division Bench judgment and approving the method of scaling adopted to remove the disparity in the evaluation of the marks and on account of the fact that the same was done by the Public Service Commission and was not contrary to the rules, it was held that the Court is not to sit in judgment and interfere on the same. Relevant observations read as under:
"30. There is a vast percentage difference in awarding marks between each set of examiners and this was sought to be minimised by applying the scaling formula. If scaling method had not been used, only those candidates whose answer sheets were examined by liberal examiners alone would get selected and the candidates whose answer sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of the examiners. The counsel for the respondents could not demonstrate that the adoption of scaling system has in any way caused injustice to any meritorious candidate. If any candidate had secured higher marks in the written examination, even by applying the scaling formula, he would still be benefited.
31. The Division Bench of the High Court observed that the process of scaling was done examiner-wise only and the scaling formula did not take into consideration the average of Mean of all For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
67 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -68- the candidates in one particular paper but took Mean of only that group of candidates which has been examined by one single examiner. The counsel for the U.P.P.S.C. submitted that the observation made by the High Court is incorrect. The scaling formula was adopted to remove the disparity in the evaluation of 14 examiners who participated in the evaluation of answer sheets and the details have also been furnished as to how the scaling formula was adopted and applied. Therefore, we do not think that the observation of the Division Bench that the Commission did not take care of varying standards which may have been applied by different examiners but has sought to reduce the variation of the marks awarded by the same examiner to different candidates whose answer sheets had been examined, is correct. The Division Bench was of the view that as a result of scaling, the marks of the candidates who had secured zero marks were enhanced to 18 and this was illegal and thus affected the selection process. This finding is to be understood to mean as to how the scaling system was applied. 18 marks were given notionally to a candidate who secured zero marks so as to indicate the variation in marks secured by the candidates and to fix the Mean marks.
32. In that view of the matter, we do not think that the application of scaling formula to the examinations in question was either arbitrary or illegal. The selection of the candidates was done in a better way. Moreover, this formula was adopted by the U.P.P.S.C. after an expert study and in such matters, the Court cannot sit in judgment and interfere with the same unless it is proved that it was an arbitrary and unreasonable exercise of power and the selection itself was done contrary to the rules. Ultimately, the agency conducting the examination has to consider as to which method should be preferred and adopted having regard to the myriad situations that may arise before them."
67. Reliance can also be placed upon the judgment of the Apex Court in Sajeesh Babu K. Vs. N.K.Santhosh & others 2012 (12) SCC 106, wherein, it was held that reverence has to be shown to the experts, until For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
68 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -69- there was any allegation of mala fide. Relevant portion of the judgment reads as under:
"18. It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee."
68. Resultantly, question No.(i) is answered by holding as under:
Keeping in view the above discussion, this Court is of the opinion that the action of the respondent-University was justified in the ever-changing situations to adopt the system of percentile, keeping in view the factum that admissions were to be made to the MBBS/BDS courses, on the strength of both the NEET-2016, for management quota seats, as directed by the Apex Court and the PMET-2016, for the State Government quota seats. A percentile method was resorted to even in the 2 tests of NEET on separate dates and in such circumstances, the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
69 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -70- petitioners are not entitled for quashing of the result of the PMET-2016, on this ground. In the present case, as noticed, the merit list has never been drawn up on the percentage basis and the decision to draw the merit list on the basis of percentile, was taken which is to be applied to one and all and therefore, the judgments which have been referred to by counsel for the petitioners, would not be applicable, as noticed above, since there has been no change which has adversely affected the rights of the petitioners on this ground.
Question No.(ii):
Whether resorting to the percentile method had disturbed the relative merit, as such, of the students and the candidates of second shift had been put on a better platform and whether the opinion of the subject experts, to whom questions had been referred to, had been wrongly ignored by the University?
69. The issue of subject experts and their opinion has always been held to be an issue which the Courts should not tread into once the matter has been gone into by the same and where there is an effective grievance redressal mechanism put in place by the educational institutions. The Apex Court in Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & another 2010 (6) SCC 759 has held that it is not permissible that the Court would take upon the task of the statutory authorities. Similarly, in Basavaiah (Dr.) Vs. Dr. H.L.Ramesh & others (2010) 8 SCC 372, it has been held that interference in the opinion of subject experts in the absence of any mala fide levelled against any member of the Committee, was not warranted. The Courts are not to sit as an appeal over the recommendations For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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of the experts. Relevant observations read as under:
"21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture.
xxxx xxxx xxxx xxxx
38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fide has been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters."
70. The said view was followed by the Division Bench of this Court (of which, the undersigned was also a Member) in LPA-1956-2012 titled Sameer Khurana & others Vs. Board of School Education Haryana & others, decided on 16.01.2013, while upholding the judgment of the Single Judge.
71. It is also to be noticed that the judgment of the Single Bench in Ritika's case (supra) (PMET-2015) was carried in an appeal to the Division Bench and it was held that where remedial steps had been taken, then the examiners' answer key was to be considered to be correct. It was further held that the formation of answer keys to the questions For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
71 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -72- should be left to the subject experts who are specialists in the subjects and only where there is glaring, improbable and impossible options, the Court would go into the issue. Relevant observations of the Division Bench read as under:
"26. It may also be noticed that the answers or formation of answers key to the questions set in the PMET 2015 is best left to the wisdom of the resource persons and subject experts and the Courts would not impose themselves as specialists of subject experts in matters like the present. The limited indulgence that the Court has is to direct the examining body to take cognizance of the objections received from the aggrieved candidates and decide such objections. This exercise has already been undertaken in extenso before the learned Single Judge. xxxx xxxx xxxx
32. In the present case it is appropriate to notice that the learned Single Judge has dealt with and considered each of the questions that were raised on behalf of the petitioners before him and some of which have been reiterated by the appellants herein and wherever there is a doubt, remedial steps it was noticed had been taken. Besides, as has been noticed the PMET text books did not enjoin that the correct answer is to be considered as right but it is the examiner's key which is to be considered correct or at least appropriate against the questions that have been set unless these are shown to be glaringly improbable or not possible. In the circumstances, the learned Single Judge has gone into the entire gamut of controversy in this case and there is no infirmity in the same."
72. Keeping in view the above observations, it is, accordingly, to be noticed that whether the petitioners' grievances have been reasonably addressed and if not, whether in those circumstances, this Court should step in, by exercising its powers of judicial review, keeping in view the observations of the Apex Court in Kanpur University & others Vs. Samir For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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73. It is to be noticed that the University had set up 3 different Expert Committees; one was at the University level, whereby the questions had been referred to the Panjab University in all the 4 subjects concerned, so that the result could be prepared, vide request dated 14.06.2016 (Annexure R10). Similarly, at the college level and school level also, 2 other committees were set up. Thereafter, the respondent-University had set up its own Committee. The composition of the committees is as under:
For Panjab University:
Name of Expert Presently Posted as and at Subject Prof. K.K.Bhasin & Professor, Panjab University, Chemistry Dr. Sanjeev Soni, Chandigarh Prof., Deptt. of Chemistry, GGDSD College, Sector 32-C, Chandigarh Prof. A.S.Ahluwalia Professor, Panjab University, Botany Chandigarh Dr.Dalip Kumar Professor, Deptt. Of Zoology, Zoology Post Graduate Govt. College for Girls, Sector - 42, Chandigarh Prof. Navdeep Goyal & Professor, Deptt. Of Physics, Physics Prof. Devinder Mehta Panjab University, Chandigarh Centre for Medical Physics, Panjab University, Chandigarh For College Committee:
Name of the Presently Posted as Subject Qualific Experi
Expert ation ence
Dr.Sarita Assoc. Professor Chemistry Ph.D 29
Bhalla Govt. Brijindra years
College, Faridkot
Dr.Navdeep Professor (Retd.) Zoology Ph.D 28
Shekhar Govt. Brijindra years
College, Faridkot
Dr.Kamaljit Assoc. Professor Zoology Ph.D 29
Kaur (Retd.), Govt. years
Brijindra College,
Faridkot
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Name of the Presently Posted as Subject Qualific Experi Expert ation ence Dr.Vishal Asstt. Professor, Physics Ph.D 5 years Arora Dev Samaj College for Women, Ferozepur City For School Committee:
Name of the Presently Posted as Subject Qualific Experi Expert ation ence Mr.Rajesh Lecturer Physics M.Sc. 22 Kumar B.Ed. years Mr.Gurjinder Lecturer Biology M.Sc. 29 Singh B.Ed. years Mr.Sarabjit Lecturer Chemistry M.Sc. 19 Singh B.Ed. years University Committee:
Prof. Sanjay Prof. Ravinder Prof. Deepak Prof. S.P.Singh Prof. D.S.Sidhu Gupta Garg John Bhatti Controller of Registrar, Baba Deptt. Of Department of Sub Dean, Examinations, Farid Community Medicine, GGS University Baba Farid University of Medicine, GGS Medical Sciences, University of Health Medical College (Member) Health Sciences, College, Faridkot. Sciences, Faridkot-
Faridkot. (Member) Faridkot Chairman
(Member) (Member)
74. The result of all the 3 committees (Annexures R14 to R16) was evaluated by the University's own opinion vide report (Annexure R17) and the final decision had led to 15 questions being invalidated out of which, for 14 questions, all the candidates across the board, got 4 marks, per question, since there was ambiguity, to ensure that the total remained at
800. Senior Counsel for the University is well justified to show that it was a measure of self-correction and justice and it was imperative, legal and ethical and not a merely an act of grace, especially keeping in view the law laid down by the Apex Court in Kanpur University's case (supra). It was, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
74 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -75- thus, been rightly argued that the experts were separately examining the 200 questions and effectively applying their mind, without criticizing each others report and independent exercise was taking place at 3 different levels. Merely because in some instances the Panjab University might have opinioned something different, it would not be binding upon the respondent-University to accept the opinion solely of the Panjab University Committee.
75. For question No.195 of Set-1 of Zoology, the option was changed and the correction was made as option 3 instead of option 4. This exercise was done on the basis of the reports submitted by the college experts and the school experts. The question and the opinion of the college experts read as under:
"Question No.195 Contents of Question: Fatty acids are transported into the mitocondria bound to:-
1. Thiokinase
2. Coenzyme A
3. Acetyl-Co A
4. Carnitine Explanation: Option(s) needs to be changed. Correct option is (3) instead of option (4). Accordingly, the changes may be made in the answer key."
Similarly, the school experts had opined as under:
"Option(s) needs to be changed. Correct option is (3) instead of option (4). Accordingly, the changes may be made in the answer key."
76. Interestingly, the Panjab University did not give any opinion on the same and did not find any fault, as such, in the options given but the final committee of the University eventually resolved that for the said For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
75 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -76- question, necessary changes be made in the answer key and marks be given according to the marks in the question. Relevant portion of the same reads as under:
"For the question No.195 of Zoology (Set-I), where a change in option has been recommended, it has been unanimously decided by the Committee Members that the necessary change be made in the answer key and marks be given according to changed answer key of this question."
77. Similarly, for question No.131, for the subject of Botany Set- 1, the Panjab University did not find any fault in the answers given which were apparently on the face of it incorrect, in view of the State of Uttrakhand having come into being. The college Committee came to conclusion that the correct answer is not mentioned in the given options and therefore, the question was treated as wrong and equal weightage was to be given to all candidates. The question and the opinion of the college Committee reads as under:
"Question No.131 Contents of Question: In which State Corbett tiger reserve is situated
1. Uttar Pradesh
2. Madhya Pradesh
3. Andhra Pradesh
4. Arunachal Pradesh Explanation: Initially the Corbett Tiger was situated in one of the mentioned options i.e. Uttar Pradesh, but Uttar Pradesh has been split into two States i.e. Uttar Pradesh and Uttrakhand. Presently, Corbett Tiger Reserve is situated in Uttrakhand and since, the correct answer of the question is not mentioned in the given options, therefore, the question may be treated as wrong and accordingly, equal weightage may be given to all the candidates."
Similarly, the school subject experts also had a similar For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
76 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -77- opinion, which reads as under:
"Explanation: Presently the Corbett Tiger is situated in Uttrakhand but this option does not exist in the given options. Before the creation of the new state of Uttrakhand the Corbett Tiger was situated in Uttar Pradesh. Since, the correct answer of the question is not mentioned in the given options, so equal weightage may be given to all the candidates."
78. Regarding question No.124 of Botany Set-2, the opinion of the Panjab University was that a wrong answer was provided and that the question should be withdrawn. Similar was the opinion of the experts at the college and school level and resultantly, the question had been declared invalid. The question and the explanation of the University experts, reads as under:
"Question No.124 Contents of Question: In the Lac Operon model of gene regulation the word Operon stands for:-
1. Group
2. Single
3. Group of different genes
4. Group of similar genes Explanation The answer of this question should have been option No.3 i.e. "Group of different genes" instead of option No.1 i.e. "Group", as Operon has a group of 'different genes'. So, in order to avoid loss to any student due to wrong answer provided in the answer key, this question should be withdrawn."
The explanation of the college and school experts reads as under:
Explanation As per the answer key, correction is option "1" i.e., "Group", but option No.3 i.e. "Group of different Genes" is more appropriate scientifically. Therefore, the question No.124 may be treated as wrong and accordingly, equal weightage may be given to all the candidates.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Explanation In reference to the above question, both option no.1 "Group" and option no.3 "Group of different Genes" can be taken as correct answer by the candidates. This becomes a point of confusion for the candidates. Therefore it is recommended that equal weightage to all the candidates may be given."
79. Similarly, for the subject of Physics Set-1, it was pointed out that there was concurrence at all the three levels. However, the experts of the Panjab University had just given a short and a cryptic report, which reads as under:
"Physics (Set-I) After careful and detailed examination, it has been found that all the questions and the key for Set-I are correct in every aspect."
Reference was, accordingly, made to show that the college experts were more detailed for Set-1and the college level report reads as under:
"PHYSICS (Set-I) All objections regarding the questions pertaining to Physics (Set-I) have been studied in detail, but none of the questions was found to be objectionable. Hence, all the questions have been verified and declared as correct in every aspect alongwith the options and answer key."
Similarly, by the school level Committee, the opinion was a little more elaborate and reads as under:
"PHYSICS (Set-I) Approximately 23 observations regarding 07 questions as objections were sent by the candidates. Almost all the objections have been made without any explanation or majority of the candidates have raised objections of questions being "out of syllabus". The said objections have been thoroughly verified and the same have been found invalid, as the questions, its options alongwith the answer key are correct in every form."
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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80. Similarly, for Set-2 for Physics, there were objections regarding 3 questions by all the 3 Committees and it was recommended that question No.38, 40 & 44 be declared invalid, which was eventually done. The opinion of the University experts for Physics Set-2 reads as under:
"PHYSICS (Set-II) After careful and detailed examination, it has been found that there are printing mistakes in three questions viz. questions No.38, 40 & 44 and therefore, it has been recommended that these questions be withdrawn."
Whereas, the opinion for the college level Committee reads as under:
"PHYSICS (Set-I) All objections regarding the questions pertaining to Physics (Set- I) have been studied in detail, but only three below mentioned questions were found to be objectionable (details of which is mentioned below) and objections regarding rest of the questions have been found to be invalid, because of lack of any constructive reference/explanation. Hence, rest of all the questions have been verified and declared as correct in every aspect alongwith the options and answer key.
Question No.38 Contents of Question: In young's double sit experiment, using monochromatic light of wavelengh l, the intensity of light at a point on the screen where path difference is l is I units. What is the intensity of light at a point on the screen where the path difference is λ/4.:-
Explanation:- There is typographical mistake in the options regarding the symbol used for intensity of light i.e. "I" should have been inserted in place of "λ" and therefore, the given options may be considered in-appropriate. So, the question may be treated as invalid and accordingly, equal weightage may be given to all the candidates.
Question No.40 Contents of Question: When light of frequency 3 is incident on a For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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metal surface having threshold frequency υ is the maximum kinetic energy of the emitted photo electron from the metal surface is K. If the light of frequency 5 is incident on the same metal surface, then the maximum kinetic energy of the emitted photo electron is:
Explanation: The statement of this question has both typographical and grammatical errors. Correct statement should be read as:-
When light of frequency 3 υ is incident on the metal surface having threshold frequency υ, the maximum kinetic energy of emitted photo electron from the metal surface is K. If the light of frequency 5 υ is incident on the same metal surface, then the maximum kinetic energy of emitted photo electron is: (* corrections in above statement have been underlined). Hence, since the statement of question has both typographical and grammatical errors, so this statement creates confusion to the candidates. Thus, due to the above errors, equal weightage may be given to the candidates.
Question No.44 Contents of Question: An aperture of size 'd' is illuminated by a parallel beam of light of wavelengh l. The distance from the aperture at which ray optics has a good approximation is: Explanation: There is typographical error in the symbol in the statement of the quesiton i.e. Symbol "λ" is missing in all the options. So, this question cannot be considered for evaluation and accordingly, equal weightage to all the candidates. CONCLUSION: Rest of the questions alongwith the options and answer key of Set-I and Set-II are correct and the same has been verified."
Whereas by the school level Committee, the opinion reads as under:
"PHYSICS (Set-II) Approximately 108 observations regarding 14 questions as objections were sent by the candidates, out of which leaving aside the following 3 below mentioned questions, the objections regarding the rest of the 11 questions have been made without any For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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explanation or majority of the candidates have raised objections of questions being "out of syllabus". The said objections have been thoroughly verified and the same have been found invalid, as the questions, its options alongwith the answer key are correct in every form.
Question No.38 Contents of Question: In young's double sit experiment, using monochromatic light of wavelengh l, the intensity of light at a point on the screen where path difference is l is I units. What is the intensity of light at a point on the screen where the path difference is λ/4.:-
Explanation:- The symbol used for wavelength of light i.e. "I" should have been inserted in place of "λ" and therefore, the given options may be considered in-appropriate. So, the question may be treated as invalid and accordingly, equal weightage may be given to all the candidates.
Question No.40 Contents of Question: When light of frequency 3 is incident on a metal surface having threshold frequency υ is the maximum kinetic energy of the emitted photo electron from the metal surface is K. If the light of frequency 5 is incident on the same metal surface, then the maximum kinetic energy of the emitted photo electron is:
Explanation: Symbol this "v" should have been inserted in place of symbol "υ" in the question. This makes the question inappropriate and therefore, the question does not fit into the given options. Equal weightage may be given to all the candidates considering this scientific mistake of symbol in the question.
Question No.44 Contents of Question: An aperture of size 'd' is illuminated by a parallel beam of light of wavelengh l. The distance from the aperture at which ray optics has a good approximation is: Explanation: There is error in the Greek language symbol while typing. Symbol "λ" should have been there instead of "l". Similarly, the symbol "λ" is missing in all the options. So, this question cannot be considered for evaluation and accordingly, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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CONCLUSION: Rest of the questions alongwith the options and answer key of Set-I and Set-II are correct and the same has been verified."
81. As noticed, eventually all the 3 questions were declared invalid by the University Committee, vide Annexure R17. These examples are being given necessarily to show that there was a proper application of mind by the experts, at their own independent level and therefore, it would not be for this Court to step in and substitute the opinion of the experts, as has been held by the Apex Court until it can be shown that the answer is probably wrong. Examples are endless, as demonstrated ably by the Senior Counsel for the University. At the cost of repetition, one can refer to question No.152, pertaining to the subject of Zoology from Set-1, whereby option No.4 'spontaneous generation' was considered to be the appropriate answer in preference to option No.1, the Panjab University experts. The college level Committee had opined that options 1 & 4 would be correct and the similar opinion was given by the school level Committee and eventually, on account of the fact that there was an ambiguity, the question was declared invalid and equal weightage was given to all. The said question and the opinion of the University reads as under:
"Question No.152 Contents of Question: Abiogenesis means:-
1. Origin of life from non-living organisms
2. Origin of life from living organisms
3. Origin of viruses and microbes
4. Spontaneous generation Explanation: Abiogenesis means spontaneous origination/generation of living organisms directly from non-
living matter or lifeless matter. So, the Option No.4 i.e. For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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"Spontaneous Generation" is the most appropriate answer."
Similarly, the opinion of the college Committee reads as under:
"Both the options i.e. No.1 & 4 collectively make the answer of the question, which creates ambiguity in the question and options. As the University wanted only one correct answer, hence the question may be considered invalid and equal weightage may be given to all the candidates."
The same is in synchronization with the explanation given by the school Committee:
"The mentioned options are creating confusion regarding the correct answer, as both the options i.e. No.1 & 4 collectively make the correct answer, which creates ambiguity in choosing the correct option by the candidates. Hence, the question may be considered inappropriate and equal weightage may be given to all the candidates."
82. To drive home his point Mr.Gupta that the answer to the above-said question 'abiogenesis' was the origin of living from non-living matters, reference was made to the dictionary of Biology by Oxford 6th Edition, which reads as under:
"abiogenesis The origin of living from nonliving matter, as by *biopoiesis. See also SPONTANEOUS GENERATION. Spontaneous generation The discredited belief that living organisms can somehow be produced by nonliving matter. For example, it was once thought that microorganisms arose by the process of decay and even that vermin spontaneously developed from household rubbish. Controlled experiments using sterilized media by Pasteur and others finally disproved these notions. Compare BIOGENESIS. See also BIOPOIESIS."
It was, accordingly, argued that even the experts were such who could have different opinions and an earlier theory had been finally For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
83 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -84- disproved and held invalid and option No.4 would not be correct. However, on account of a ambiguity, benefit of doubt had been given to one and all.
83. Similarly, for question No.169 of Zoology Set-2, where the description of 'Sea Pen' was doubted to be incorrect, since in the question itself, mention had been made to sea-feather and the benefit of question had been given. Interestingly, the Panjab University experts again chose not to comment upon the said question whereas the college experts invalidated the under-mentioned question on the following ground:
"Question No.169:
Content of Question: Sea feather is called
1. Meandrin
2. Astrea
3. Pennatula
4. Porpita Explanation: The appearance of "Sea Pen (Pennutula)" resembles "Sea Feather", so it was mentioned in the statement of the question. But since the correct word is "Sea Pen" instead of 'Sea feather'. So, the question may be treated as invalid and equal weightage may be given to all the candidates."
The explanation given by the school experts was in similar terms, which was in consonance with the college experts' opinion and which eventually led to the said question also being declared invalid by the University Committee. The said question and the explanation given by the said Committee, read as under:
"Explanation: The correct statement of this question should have been "Sea Pen is called" instead of "Sea Feather is called". It appears that the paper-setter has mentioned the word "Sea Feather" as it resembles "Sea Pen". But the mere resemblance cannot be considered as the correct statement of the question.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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For the same question again, Senior Counsel for the University referred to 3 dictionaries; firstly, the Oxford English Reference Dictionary, in which, the word used is 'Sea Pen' and not sea-feather, the same reads as under:
"sea pen a colonial hydroid of the order Pennatulacea, resembling a quill pen."
Similarly, reference was made to a Dictionary of Zoology 3rd Edition, which again refers to the coral formation 'Sea Pen' and the same reads as under:
"Anthozoa (Actinozoa; sea anemones, corals, sea pens; phylum *Cnidaria) A class of exclusively *polypoid, marine cnidarians that are solitary or colonial, and usually sedentary. The oral end is expanded as an oral disc with a central mouth, with one or more rings of hollow *tentacles. A well-developed *stomadaeum leads from the mouth to a gastrovascular cavity, generally with one or two vertical grooves. The gastrovascular cavity is partitioned into compartments by complete or in-complete *mesenteries, some bearing endodermal gonads. Anthozoans first appeared in the *Ordovician."
Lastly, reference was made to the New Oxford American Dictionary, 2001, which also similarly describe 'Sea Pen', as under:
"sea pen a marine coelenterate related to the corals, forming a feather-shaped colony with a horny or calcareous skeleton."
84. On the other hand, Mr.G.S.Bal, Senior Counsel has referred to material to show that 'sea pen' or 'sea feather' are contemporary terms used in Biology and the option No.3 given as 'pennatula' was correct and there was no error, as such, and unnecessarily the question has been treated as For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
85 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -86- invalid. It is, accordingly, submitted, while placing reliance upon the judgment of the Apex Court in Saumil Garg's case (supra) that grace marks have wrongly been given. Reliance has been placed upon the material in 'Trueman's Objective Biology', which reads as under:
"PENNATULA- Sea Pen or Sea Feather Habitat. The colonial sedentary coelenterate is found fixed to sandy or muddy bottoms of warm coastal seas.
Characters. The colony has a bilateral symmetry. There is a central flattened axis which is differentiated into penduncle in the lower region and rachis in the upper region. The penduncle is buried in the mud through an end bulb. The rachis bears lateral branches popularly called leaves or pinnae. The colony bears two types of zooids, rows of small feeding autozooids over the upper surface of each pinna and tentacleless small siphonozooids on the dorsal and laternal sides of the rachis.
Pennatula- The Sea Pen or Sea feather. The sea pen looks like a quill (a type of feather). Pennatula is carnivorous and phosphorescent. The colony is dimorphic (two types of zooids),
(i) Siphonozooids, found on the sides of the rachis on the dorsal side, cause circulation of water in the canals of the colony. (ii) Autozooids are nutritive in function and lie in a single row on each pinnule.
Penuatula (Sea Pen, Sea Feather) It is a colonial phosphorescent coral which is often found fixed to sand or muddy bottoms of warm seas. However, the coelenterate is capable of slow and limited movement. The body resembles in shape to traditional pens with a central axis and 20-50 pinnules on either side in the upper half of axis. Axis is differentiated into basal or proximal pinnules-less region called peduncle and upper pinnule bearing part called rachis. Peduncle has an end bulb at its free end. It is slightly swollen and is embedded in sand or mud. Pinnules are long, lateral, fleshy and flattened projections or branches. Each branch or pinnule bears a number of feeding polyps over its upper margin. They are called autozooids or authocodiae. Autozooids possess tentacles, mesenteries and For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
86 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -87- gonads. A second type of smaller polyp-like zooids occur over the dorsal and lateral parts of the rachis. They are called siphonozooids. Siphonozooids lack tentacles and gonads. Mesenteries are reduced. They seem to take part in circulation of water. Colony of Pennutula is called dimorphic due to presence of two types of zooids.
Gorgonia (Sea Fan) It is a colonial coral found in shallow tropical and subtropical seas. Gorgonia is about 50 cm high, wide, erect tree like colony which has a basal plate for fixation, a short main trunk and a large number of slender stems cross-connected with one another to form fine network with meshes of 2-5 mm width. Stem branches bear rows of numerous minute retractile polyps or anthocodiae (singular anthocodia) on both the surfaces. Skeleton is made of a central axial rod of flexible horn like material or gorgonin. It is covered by a shallow layer of coenenchyma (= coenenchyme) in which are embedded basal parts of zooids.
Pennatula - The Sea Pen or Sea feather.
It is found in sandy and muddy bottoms of warm seas. It is colonial sedentary form. Pennatula is carnivorous and phosphorescent. The colony is dimorphic i.e., consisting of two types of zooids. (i) Siphonozooids. These zooids are found on the sides of the rachis on the dorsal side. They cause circulation of water in the canals of the colony. (ii) Autozooids. They are nutritive in function. Autozooids lie in a single row on each pinnule."
A perusal of the above material would, thus, go on to show that there is substantial strength in the argument of the counsel that 'pennatula' was the correct option and 'sea feather' is commonly known as 'sea pen' also and thus, there was no confusion, as such. The said question No.179 of Zoology has, thus, been wrongly declared invalid by the University palpably on the face of the record.
Reliance can also be placed upon the reference to both 'Sea For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
87 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -88- pen' and Sea feather' by Gary C.Williams in 'The Global Diversity of Sea Pens' edited by Simon Thrush (Public Library of Science). From the said literature, it would be clear that 'Sea pen' and 'Sea feather' are synonymous with each other and therefore, the option No.3 'Pennatula' was the correct option and there was no valid reason for treating the question invalid. Relevant portion reads as under:
"The Global Diversity of Sea Pens (Cnidaria: Octocorallia:
Pennatulacea) Gary C.Williams Simon Thrush, Editor (Public Library of Science) The common name "sea pen" comes to us from the ancient Romans who had knowledge of pennatulaceans and called them "Penna marina" (sea feathers or sea pens), or referred to them as "Mentula alata" (winged penis).
The common name "sea pen" and the group name "Pennatulacea"
are from the resemblance of the species in some genera (suchas Pennatula, Pteroeides, and Virgularia) to quill pens resulting from the possession of conspicuous polyp leaves."
85. Similarly, it was argued that for Zoology Set-2, the college Committee had discredited 5 questions whereas the school Committee had discredited 4 questions for Zoology Set-2, whereas the Panjab University experts had invalidated only 1 question, which was question No.190. Resultantly, the University eventually had, from the set-2 of Zoology, had declared question No.161, 169, 178, 190 & 193 of Set-2, to be invalid, since regarding question No.161, both the School and College Committees had a similar opinion as the question had been wrongly framed and changed the meaning and created confusion, which had not even been touched by the Panjab University Committee. The said question and opinion of the College Committee read as under:
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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"Question No.161 of Set-2 of Zoology Contents of Question: An alkaloid, which arrest cell division is obtained from:-
1. Chrysanthamum
2. Colchicine
3. Dalbergia
4. Crocus Explanation: Although the question is well as it's options are correct i.e. the correct answer is the same i.e. option No.2 "Colchicine", but the words "obtained from" being wrongly inserted are changing the meaning of question and therefore, creating some confusion. So, the question may be treated as invalid and equal weightage may be given to all the candidates."
The explanation of the school Committee reads as under:
"Explanation: This question as well as it's options and the correct answer i.e. "Colchicine" (as mentioned in the answer key) are correct, but two words i.e. "obtained from" are not needed in the statement of question, because they are changing the meaning of question. So, benefit of this doubt may be given to the candidates in form of equal weightage to all."
86. On the contrary, Mr.G.S.Bal, Senior Counsel has submitted that the explanations of the College Committee and the School Committee had wrongly been accepted and referred again to "Truman's Elementary Biology" to show that 'Colchicine' was extracted from the corms of "Autumn Crocus" and was an alkaloid which interferes with the spindle formation and prevented assembly of microtubules. He referred to various literature including "Oxford Dictionary of Biology" to show that 'Colchicine' was an alkaloid obtained from underground corms of meadow saffron/autumn cross. The relevant materials produced read as under:
"Colchicine An alkaloid derived from the autumn crocus, Colchicum autumnale. It inhibits spindle formation in cells For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
89 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -90- during mitosis so that chromosomes cannot separate during anaphase, thus inducing multiple sets of chromosomes (see POLYPLOID). Colchicine is used in genetics, cytology, and plant breeding research and also in cancer therapy to inhibit cell division.
Colchicine, an alkaloid derived from the autumn crocus (Colchicum automnale, Family: Liliaceae) interferes with the spindle formation.
Colchicine is known as a mitotic poison; it arrests cell division at metaphase.
Colchicine is obtained from Autumn Crocus (Colchicum autumnale). It arrests cell division at metaphase due to non- formation of spindle. Besides mitogens, cells are stimulated to divide in achieving a particular size, critical decrease in surface volume ratio and critical decrease in nucleocytoplasmic or kernplasma ratio. The rate of cell division is not the same in various stages of life cycle. Fertilized egg or zygote is single celled. It divides repeatedly to form a large number of cells, upto 6x10¹² cells in human neonate. Later on divisions are slowed and get restricted in certain regions like meristematic regions in plants, bone marrow, stratum germinativum and germinal tissue in animals.
Colchicine is an alkaloid widely used in plant breeding for doubling the chromosome number. It is extracted from the corms of autumn crocus (Colchicum autumnale). The alkaloid does not allow the formation of spindle because it prevents assembly of microtubules. It is, therefore, called 'mitotic poison'. Colchicine holds the cells in metaphase. Colchicine does not inhibit chromosome replication. As a result the colchicine treated meristematic cells show doubling of chromosomes. This property of increasing the number of chromosome sets or genomes is called polyploidy.
Colchicine It is an alkaloid widely used in plant breeding for doubling the chromosome number. Colchicine is extracted from the corms of Autumn Crocus (Colchicum autumnale). The alkaloid does not allow the formation of spindle because it prevents assembly of For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
90 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -91- microtubules. It is, therefore, called "mitotic poison"
C-mitosis. It is colchicine induced mitosis (Brachet 1957). Colchicine is an alkaloid obtained from underground corms of meadow saffron/autumn crocus- (Colchicum autumnale; (Family Liliaceae). It is discovered by Dustin (1934) and used to induce polyploidy by Blakeslee (1937). This colchicine is a mitotic poison and arrests temporarily the cell division at early (pre) metaphase. Actually it checks assembly of microtubules and prevents their polymerisation so that spindle is not formed at metaphase. Due to non formation of spindle, the sister chromatids fail to separate from their chromosomes at anaphase. Thus each chromosome now has two chromatids and two sets of genes. This colchicine treated cell now has double the number of chromosomes/genes. This increase in number of chromosome sets is called polyploidy. Such type of colchicine induced mitosis is called c-mitosis and the nucleus with double the number of genes as restitution nucleus. Granosan and vinblastin are similar to colchicine in action. Colchicine also inhibits cell plate formation by preventing assemblage of microtubules. Colchicine has no effect on cytokinesis of animal cells. Colchicine induced cells are used to study the number and structure of chromosomes and to make a karyotype. Colchicine does not inhibit chromosome replication."
The relevant materials including 'Truman's Elementary Biology' from Class-XI by K.M.Bhatia & M.P.Tyagi, have been referred to, time and again. It is also to be noticed that students have just passed out from +2 and are giving their exams and therefore, the education which they have imbibed from Classes XI & XII will remain fresh in their mind and therefore, this Court is of the opinion that reference to the textbook which is prescribed by the CBSE Board (NCERT), cannot be discounted.
87. However, reliance upon Saumil Garg's case (supra) to submit that only the students who had attempted the questions should be given For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
91 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -92- credit and it should not flow across the board, is not justified. It is to be noticed that in the present case, there were no negative marking and necessarily students would have attempted all the questions. The said issue arose only, as admitted by the Senior Counsel, on account of the fact that in the case referred to, there was a negative marking and therefore, it had been held that benefit could not flow to those who had not attempted. The same would be clear from the observations made by the Apex Court, which reads as under:
"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 seven vague questions are Question 4 in Physics, Questions 76 and 89 in Chemistry, Questions 147 and 148 in Botany and Questions 156 and 163 in Zoology of Question Paper Code A."
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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88. Similarly, question No.178, pertaining to Zoology Set-2, had wrong spellings in the answer given instead of 'Phosphatase' it had been referred to as 'Phosphalase'. Resultantly, weightage had been given on the opinion of both the School and College Committee. The question and the opinion given reads as under:
"Question No.178 Contents of Question: When the milk has been pasturised successfully, the milk will no longer contain the enzyme:-
1. Polymerase
2. Phosphalase
3. Perioxdase
4. Pyrimidinase Explanation: The option number 2 has been wrongly written/spelled as Phosphalase, whereas the correct word is "Phosphatase". Although no other mentioned option is anyway close to this correct answer, but to remove any confusion/doubt the benefit of this minor mistake may be given to all the candidates in the form of equal weightage."
Whereas the explanation given by the school Committee reads as under:
"Explanation: The statement as well as the options of the question are correct, but for a very minor mistake of spelling of the word mentioned in option number 2. The correct word is "Phosphatase"
and not "Phosphalase" (as mentioned in option No.2). Therefore, to remove any confusion/doubt the benefit of this minor spelling mistake may be given to all the candidates in the form of equal weightage."
89. Mr.G.S.Bal, Senior Counsel for the petitioner (in CWP-16906- 2016) has sought to object to the question being wrongly declared invalid on the ground that mere spelling mistake should not have led to deletion of the said question by declaring it invalid, as had been held out by the college For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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A perusal of the above opinions would go on to show that correct option had been totally wrongly spelt and therefore, apparently, there was no correct option and the students had to choose the correct option and in the absence of the correct meaning present, the same was rightly declared invalid.
90. Regarding question No.190, from Zoology Set-2 and the conclusion by the Panjab University experts was that option-1 was the correct option whereas the college Committee opined that options 2 & 3 were correct options and there was a confusion and weightage should be given. The school Committee also gave option for weightage, accordingly. The opinion of the Panjab University Committee reads as under:
"Question No.190 Contents of Question: The Coenzyme involved in oxidative decarboxylation is:
1. Thiamine pyrophosphate
2. Biotin
3. NAD
4. Pyridoxal Phosphate Explanation: Thiamine Pyrophosphate (TPP) is a prosthetic group of pyruvate dehydrogenase component. Pyruvate combine with TPP and is then decarboxylated to yield hodroxyethyl-TPP. TPP has an acidic H+ on its CE that acts as the functional part of the thiazolium ring; the ring acts as an "electron sink", enabling the carbonion electrons to be stabilized by the resonance.
TPP are essential for the catalytic function of the enzyme- complex.
Thus, option No.1 "Thiamine Pyrophosphate" is the most appropriate answer.
CONCLUSION: Leaving aside the above-mentioned two questions, rest of all the questions alongwith the options and For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Whereas the opinion of college and school Committees, respectively, read as under:
"Explanation: Amongst the given options, more than one option i.e. Both options No.2 & 3 i.e. both 'Biotin' and 'NAD' are the co- enzymes involved in the process i.e. oxidative decarboxylation (both being correct options), thereby creating confusion regarding single correct option. So, the question may be treated as invalid and equal weightage may be given to all the candidates. Explanation: In the above-mentioned question, two of the above- mentioned options i.e. No.2 & 3 ('Biotin' and 'NAD') are the co- enzymes involved in oxidative decarboxylation (as has been asked in the question). So, the problem in this question is that how can a candidate make the single correct option as the correct answer. So, this calls for equal weightage to all the candidates."
91. The opinion of the Panjab University was categorical that the correct option was No.1-'Thiamine pyrophosphate' whereas the school and college experts had referred to option No.2 and 3. Reliance has been placed by Mr.G.S.Bal, ably assisted by the petitioner herself, upon the 'Krebs Cycle (Krebs, 1937, 1940, a Nobel Prize winner') to show that decarboxylation produces carbondioxide and NADH with the help of enzyme complex pyruvate dehydrogenase and thiamine pyrophosphate (TPP) was the enzyme involved. Similarly, reliance was also placed upon 'Trueman's Objective Biology' to show that transition reaction takes place and TPP is the relevant enzyme. Relevant paras read as under:
"Transition Reaction (Formation of Acetyl ~ CoA): (a) If oxygen is not available, pyruvic acid undergoes anaerobic respiration or fermentation to form lactic acid or alcohol. It occurs in cytoplasm. But under aerobic conditions pyruvic acid formed in glycolysis enters in the matrix of mitochondria. Though O2 is not used but is requires aerobic condition. It is not used directly in the For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
95 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -96- Krebs' cycle. It undergoes by oxidative decarboxylation using 5 cofactors (CoA, TPP, NAD+, Mg++ and lipoic acid) and 3 enzymes collectively form pyruvate dehydrogenase complex to form a 2 carbon energy rich compound called acetyl~Coa (CH3.CO~SH.CoA) also called activated acetic acid or active acetate through following reactions by which 5H group of CoA is esterified to acetyl group. This reaction is irreversible.
(i) Decarboxylation: Pyruvic acid first gets decarboxylated as
(a) Pyruvic acid + TPP MG++ → Acetul-TPP complex + CO2 decarboxylase Krebs Cycle (Krebs, 1937, 1940, Nobel Prize 1953; Tricarboxylic Acic Cycle or TCA, Citric Acid Cycle) It operates in the matrix of mitochondria or power-houses of the cell. Pyruvic acid enters mitochondria. It is decarboxylated oxidatively outside the Krebs cycle to produce acetyl CoA, NADH and CO2 with the help of enzyme complex pyruvatre dehydrogenase (decarboxylase, TPP, lipoic acid, transacetylase, Mg2+)."
In such a case, once there is no specific overruling by the respondent-University, necessary benefit would have to be given to the Panjab University experts in preference to over and above the college and school experts and therefore, the necessary benefit of this question should have been given to the candidates as the correct option was available and has been wrongly invalidated.
92. While referring to question No.193 from Zoology Set-2 reference was made to the college experts' opinion (Annexure R15) that in some rare conditions, the bone-marrow cell might appear in the peripheral blood, i.e., mega low blast. However, the school Committee had chosen not to opine on the same. However, the experts of the respondent-University had decided to declare the said question as For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
96 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -97- invalid. The opinion given of the college Committee, which was eventually accepted, reads as under:
"Question No.193 Contents of Question The only bone marrow cell - that never appear in peripheral blood is:
1. Myeloblast
2. Myelocyte
3. Lymphoblast
4. Megaloblast Explanation: Both the questions and options are correct, but in some rare conditions (like severe megaloblastosis, etc.) any cell out of the given options i.e. "Megaloblast" even can appear in the peripheral blood. To give benefit of this to all the candidates, equal weightage may be given to all the candidates."
93. For Chemistry Set-1, there was no dispute that for question No.60, the question was declared invalid, in view of the concurrence of opinion, across the Board. Countering Mr.Nabhewala's argument, pertaining to questions No.51 & 62 of Set-1 of Chemistry and not accepting the report of the Panjab University and not making necessary corrections and that no specific reason had been given in the final conclusions also, arrived at by the Committee of the respondent- University. The respondent-University, however, in its wisdom, chose not to give the said benefit and rejected the opinion of the experts of the University. The said question and the opinion of the University experts read as under:
"Question number 51 Contents of Question In an atom if
(a) n=3, l=2, m=0, s=+1/2
(b) n=3, m=0, s=+1/2
(c) n=3, l=1, m=0, s=+1/2 For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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(d) n=3, l=0, m=0, s=+1/2 the number of electron in a,b,c,d are respectively
1. 1,3,1,1
2. 5,3,1,1
3. 5,3,3,1
4. 1,1,1,1 Explanation: The question is incomplete as the value of l in the choice (b) is missing."
94. Mr.Gupta has pointed out that Professor K.K.Bhasin was also part of the Punjab University Committee, as an expert in the subject of Chemistry. However, subsequently, he had also given an opinion that the students could have understood and attempted correctly, with little extra effort, even if the value of 'l' in the option-(b) was missing. His subsequent opinion, as such, reads as under:
"The statement of the questions numbering 51 and 62 appeared little ambiguous, to look at the very first instance. Little more clarity on these questions on the part of the paper setter would have helped the students to grasp the questions without much difficulty. However, on close examination and exhaustive discussion in length with several school and college teachers this course contents of X+I and X+II, it was opined that both the questions were correct and the students could understand and attempt correctly with little additional efforts."
95. Similarly, Prof.Bhalla, the College expert had also opined subsequently on question No.51 that the correct option was option '1'. The said opinion is as under:
"PMET-2016 EXPLANATIONS OF QUESTIONS NO.51 & 62 OF CHEMISTRY Question Number: 51 Display Question Number : Yes In an atom if
(a) n=3, l=2, m=0, s=+1/2 For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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(b) n=3, m=0, s=+1/2
(c) n=3, l=1, m=0, s=+1/2
(d) n=3, l=0, m=0, s=+1/2
the number of electrons in a, b, c, d are respectively. No. of electrons in (a) will be one as orbital is 3d and value of m=o only one value; one orbital and value of s is +1/2 i.e. only one value so number of electrons is one.
No. of electrons in (b) will be three because possible orbitals with these values of quantum numbers are 3s, 3pх & 3dxy and only one value of s i.e. +1/2 so each orbital will have one electron so number of electrons will be three in total.
No. of electrons in (c) will be one as orbital in 3p and value of m=l, only one value; one orbital and value of s is -1/2 i.e. only one value so number of electrons is one.
No. of electrons in (d) will be one as orbital is 2s and value of m=o only one value; one orbital and value of s is +1/2 i.e. Only one value so number of electrons is one.
So Answer is option 1."
96. Similarly, reference is made to question No.62 of set Chemistry, where the Panjab University experts had opined that the question lacks detailed information and was difficult to grasp. The question and the explanation given by the said experts read as under:
"Question number 62 Contents of Question Mark the correct statements:-
(a) In NO3-the number of bond pairs and lone pairs on nitrogen atom are 4:1
(b) the acidic character of H3PO2, H3PO3, H3PO4 is in the order H3PO2>H3PO3>H3PO4
(c) Ammonium dichromate on hearing gives NH3
(d) H3PO2, H3PO3, H3PO4 are having same geometry Options:-
1. a,b
2. b,c
3. c,d For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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4. b,d Explanation: The question lacks detailed information and is too difficult to grasp as option (b) although correct, is not supplemented with pkа values, while option (d) does not convey, crisply the message to the students."
It was, accordingly, submitted that the matter was discussed in detail with Prof.Sarita Bhalla, who had 29 years of experience and was Ph.D in Chemistry and is a Professor with the Government Birjindra College, Faridkot, apart from Prof.K.K.Bhasin, who had already given his second opinion, which has been reproduced above. Prof.Bhalla has also, accordingly, opined that the option, as given by the University as option No.4, for B & D, were correct. The explanation given by Prof.Bhalla reads as under:
"Statement (a) is wrong as no lone pair is present on Nitrogen. Statement (b) is correct;
In oxoacids, why does acid strength increase as the number of oxygen attached to the central atom increases? In general, it's energetically unfavourable to separate positive and negative charge. When a neutral acid dissociates, that's precisely what's happening: positive and negative charge are separating. Of course, when the acid is in water, this might end up being exergonic, because the proton and the conjugate base both get solvated by water molecules. But in general, the more attracted the proton is to the conjugate base, the more unfavourable the dissociation is, and the weaker the acid. Attaching more oxygen atoms to the central atom in an oxyacid helps to distribute the negative charge of the conjugate base over a grater number of atoms. This makes the proton less strongly attracted to any one of the oxygen atoms in the conjugate base. Hence, you get a stronger acid.
Now, for most oxyacid series, it is indeed the case that more oxygen atoms -> higher acidity. Consider for example For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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hypochlorous acid HclO, pKa = 7.53
chlorous acid, HclO2, pKa = 1.96
chloric acid, HclO3, pKa ~ -1
perchloric acid HclO4, strong
But there is one particular series that bucks the trend:
hypophosphorous acid, H3PO2, pKa = 1.2
phosphorous acid, H3PO3, pKa = 1.3
phosphoric acid, H3PO4, pKa = 2.15
What makes this series so different?
This makes H3PO2>H3PO3>H3PO4
Statement (c) is wrong:
As ammonium dichromate on heating gives nitrogen. (NH4)2Cr2O7(s) ->Cr2O3(s) + N2(g)+4H2O(g) (∆H = -429.1 ±3 kcal/mol) Statement (d) is correct;
All have same hybridisation.
So Q 62 answer is option 4"
97. Regarding question No.51 & 62 from Chemistry, as noticed above, it is apparent that there were opinion that the question was incomplete and lack detailed information. In spite of that there were no conclusion arrived at as to why the benefit of the same had not been given to the students and no reason has also been depicted in the report of the respondent-University for rejecting the opinion of the experts. The subsequent opinions which have been taken from Prof. K.K.Bhasin and Prof. Sarita Bhalla and produced at the time of argument, thereafter, in the opinion of this Court would not help Mr.Gupta, Senior Counsel for the respondent-University, who has placed material on record to justify that Prof. Bhasin had gone back on his earlier opinion and Prof. Bhalla had also, thereafter, supported him on a subsequent opinion taken. It is settled principle that reasoning should have been in place For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
101 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -102- with the University experts in its final decision taken on 22.06.2016 and the same cannot be supplanted subsequently. The same could even not have been done by filing an affidavit much less to be explained orally, as has been done by counsel for the respondent-University. Reference can be made to the judgment of the Apex Court in Mohinder Singh Gill Vs. Chief Election Commissioner 1978 (1) SCC 405 that reasoning should be there in the order and it cannot be put in place by filing of affidavit. Resultantly, this Court is of the opinion that benefit of questions No.51 & 62, of Set-1 necessarily has to flow to all and both the questions should be declared invalid.
98. Similarly, reference was also made to question No.118 of Set-1 of Botany and question No.112 of Set-2 of Botany, on the same line that the school and college Committees did not give any opinion whereas there was an opinion from the Panjab University that the question was incomplete. It was pointed out that the options given for question No.118 of Set-I of Botany were of the 4 surnames of the scientists who were alleged to have constructed the first light compound microscope. The opinion of the experts of the Panjab University was that the answer 'Hooke', as given in the answer key, is not a convincing one, rather it should be "Janssen and Janssen". The question and the explanation reads as under:
"Question No.118 Contents of Question: The first compound light microscope was constructed by:
Options:
1. Hooke For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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2. Brown
3. Leeuwenhoek
4. Zernicke Explanation: The answer i.e. "Hooke", as provided in the answer key is not convincing one. Rather it should be "Janssen and Janssen".
99. Resultantly, to refute the arguments of counsels for the petitioners that why the subject experts of the respondent-University had not acted upon the same, reference was made to the 'Larousse Dictionary of Scientists' to point out that the correct answer given was 'Robert Hooke (1635-1703). The biodata of the said scientist, given in the above-said dictionary, reads as under:
"Hooke, Robert (1635-1703) English natural experimental philosopher and architect, born in Freshwater, Isle of Wight. Educated at Christ Chursh, Oxford, he worked as an assistant to John Wilkins on flying machiners, John Willis on chemical research, and Boyle on the construction of his air-pump. In 1662 he was appointed the first curator of experiments at the newly founded Royal Society, of which he was secretary from 1677 to 1683, and in 1665 he became Professor of Physics at Gresham College, London. In that year he published his Micrographia, one of the scientific mater-pieces of the age, on account of his microscopic investigations in botany, chemistry and other branches of science. One of the most brilliant and versatile scientists of his day, he was also an argumentative individual who became involved in a number of controversies, including several priority disputes, with Isaac Newton. He anticipated the development of the steam engine, discovered the relationship between the stress and strain in elastic bodies known as Hooke's law, and formulated the simplest theory of the arch, the balance-spring of watches, and the anchor-escapement of clocks. He anticipated Newton's law of the inverse square in gravatation (1678). Hooke constructed For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
103 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -104- the first Gregorian or reflecting telescope, with which he discovered the rotation of Jupiter. He also materially improved or invented the compound microscope, the quadrant, a marine barometer, and the universal joint. After the Great Fire of London (1666) he was appointed city surveyor, and designed the new Bethlehem Hospital (Moorfields) and Montague House."
Reference was also made to show from the same dictionary regarding 'Robert Brown (1773-1858) to demonstrate his credentials and whether there was any dispute with the students regarding construction of the first compound light microscope. His biodata reads as under:
"BROWN, Robert (1773-1858) Scottish botanist, born in Montrose, the son of an Episcopal clergyman. Educated at Aberdeen and Edinburgh, he served with a Scottish regiment in Ireland (1795). In 1798 he visited London, where his ability so impressed Banks that he was appointed naturalist to Matthew Flinders's coastal survey of Australia in 1801-5. He brought back nearly 4000 species of plants for classification. Appointed librarian to the Linnaean Society, he published Prodromus Florae Novae Hollandiac et Insulae Van-Diemen- (1810), containing many of Ferdinand Bauer's botanical illustrations. He adopted, without modification, Bernard Jussieu's natural system of plant classification, thus, encouraging its general acceptance in place of Linnaeus's artificial 'sexual system'. In 1810 he received charge of Bank's library and splendid collections, and when they were transferred to the British Museum in 1827 he became botanical keeper there. He is renowned for his investigation into the impregnation of plants. He was the first to note that, in general, living cells contain a nucleus, and to name it. In 1827 he first observed the 'Brownian movement' of fine particles in a liquid, significant in shaping physicists' later ideas on liquids and gases."
Similarly, reference was made to the biodata of For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
104 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -105- Leeuwenhoek Antoni van (1632-1723) to show that his contribution in microscope was also well-known in the science parlance.
"LEEUWENHOEK, Antoni van (1632-1723) Dutch cloth merchant and amateur scientist, born in Delft. Apprenticed in Amsterdam and educated as a businessman, he became skilled in grinding and polishing lenses to inspect cloth fibres. He returned to Delft around 1652 and became a draper and haberdasher. Through his second wife, Cornelia Swalmius, he joined Delft's more intellectual circles. His civic posts included chamberlain to the sheriffs of Delft, alderman and wine-gauger. With his microscopes, each made for a specific investigation, he discovered microscopic animalicules (protozoa) in water everywhere (1674), bacteria in the tartar of teeth (1676), that all males produce spermatozoa-even fleas, lice and mites, and he described their copulation and life cycles. Independently, he discovered blood corpuscles (1674), blood capillaries (1683), striations in skeletal muscle (1682), the structure of nerves (1717) and plant microstructure among endless other observations. After his death, his daughter Maria auctoned his collection of 248 microscopes and 178 separate lenses. Extant lenses magnify from 30x to 266x. His discoveries, in more than 110 letters (published 1684), were described with the assistance of Delft's anatomist, Cornelis's-Gravesande, and introduced to the Royal Society by Graaf. Leeuwenhoek was elected FRS in 1680."
The contribution of Zernike Frits (1888-1966) was also highlighed, which reads as under:
"ZERNIKE, Frits (1888-1966) Dutch physicist, born in Amsterdam. He was educated at Amsterdam University and became Professor of Physics at Groningen (1910-58). Zernike developed (from 1935) the phase-contrast technique for the microscopic examination of transparent-frequently biological-objects. For this work he was For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
105 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -106- awarded the Nobel Prize for Physics in 1953. Related to this was his invention of the 'coherent background' technique for revealing the presence of phase variations in interference and diffraction patterns, and for studying very weak fringes in such patterns. He made important pioneering contributions to the understanding of optical coherence, showing how it could be measured from observable features of the light field. He also discovered a modified subset of the Jacobi polynomials, which is particularly appropriate for the study of optical system performance and led to a new formulation of the wave theory of lens aberrations; these expressions are now known as Zernike polynomials."
100. Emphasis was, accordingly, laid that the construction was done first by which of the scientists, which was the specific query of the question in dispute. Resultantly, it was pointed out that even if the 4 options were compared together, sufficient material was there to show that 'Robert Hooke' was the correct answer. To further drive home his point, reference was made to the 'Merit Students Encyclopedia' wherein the contribution made by the said scientists reads as under:
"Hooke, Robert (huk), English scientist. Born Freshwater, Isle of Wight, England, July 18, 1635. Died London, England, Mar. 3, 1703.
Hooke did important work in many areas of science, including physics, biology, astronomy, and meteorology. He is best known for his theory, known as Hooke's law, that makes it possible to predict the behavior of elastic bodies. This law states that a stress, or the force applied to an elastic body, causes a proportional strain, or change in the body's shape. A pioneer in microscopic biology, Hooke built one of the earliest compound microscopes and used it to make many significant observations. In 1665 he published an outstanding scientific work, Micrographia. This book contained the first descriptions and drawings of units that he called cells. It also contained For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
106 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -107- observations on the anatomy and life processes of insects and on the crystalline structure of metals.
Hooke also made important contributions to astronomy. He found a new star in the constellation Orion and discovered the rotation of the planet Jupiter. He developed the two major theories concerning the origin of the craters on the moon, and he calculated the center of gravity of the earth-moon system. He was along the first Europeans to attempt to determine the distance of the stars, using a new quadrant with telescopic sights that he himself devised and built. He also outlined a method for building a new type of clock-driven telescope that would be able to follow the stars in their courses.
In meteorology, Hooke explained the circulation of air in the earth's atmosphere, and he related falling air pressures to the approach of a storm. He invented an alcohol thermometer, a barometer, a hygrometer and rain and wing gauges. In other areas of physics, Hooke developed new theories concerning the nature of light, heat, and combustion. He also discovered the relationship between sound pitch and frequency. In addition, Hooke anticipated part of Newton's theory of gravitation, suggesting that the gravitational attraction between bodies is inversely proportional to the square of the distance between them. For further information consult Robert Hooke by Margaret 'Espinasse (U. of Calif., 1956).
*Stephen Toulmin"
Similarly, reference was made to 'New Standard Encyclopedia Volume 6 wherein 'Robert Hooke' was associated with the contribution of the compound microscope. His contribution, as assessed in the said Encyclopedia reads as under:
"Hooke, hook, Robert (1635-1703), an English scientist. He constructed a compound microscope with which he was the first man to see the cells in plant tissues, the compound eye of a fly, and the crystal structure of snowflakes. His meticulous drawings of more than 60 previously invisible objects illustrated his Micrographia: or Some Physiological Description of Minute For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
107 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -108- Bodies (1665).
A many-sided experimenter and theorist, Hooke made important contributions to chemistry, meteorology, astronomy, and physics, and devised or improved many instruments that advanced the sciences of his time. He formulated Hooke's Law, which states that the strain (distortion) of an elastic body is proportional to the stress (force) applied to the body. As a surveyor and architect, he helped in the rebuilding of London after the fire of 1666.
Hooke was born on the Isle of Wight and attended Oxford University. He did much of his work while curator of experiments (1662-1703) to the Royal Society, London."
Reference has also been made to 'Collier's Encyclopedia with Bibliography and Index, which mention the contribution and work of 'Robert Hooke' as under:
"HOOKE, ROBERT (1635-1703), English microscopist, physicist, and experimental philosopher, was born on July 18, 1635, in Freshwater, Isle of Wight, where his father, John Hooke, was minister of the parish. He worked for a while for Sir Peter Lely, attended Westminster School, and entered Christ Church, Oxford, in 1653. While at Oxford Hooke attracted the attention of Robert Boyle and worked with him in the construction of Boyle's air pump. In 1662 Hooke was appointed curator of experiments of the Royal Society, a post he held until his death.
Hooke's scientific contributions were numerous and diverse. He was the first to state clearly that motions of heavenly bodies must be regarded as a mechanical problem. Hooke proved experimentally that the centre of gravity of the earth and the moon is the point describing an ellipse around the sun; he discovered the fifth star in Orion, inferred the rotation of Jupiter, and constructed the first Gregorian telescope. He expounded the correct theory of elasticity and kinetic hypothesis of gases (1678), and anticipated Newton in the formulation of the law of inverse squares. His other inventions and discoveries include a For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
108 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -109- marine wheel-barometer, the spiral balance spring in watches, and the simplest theory of the arch. In addition Hooke suggested a system of optical telegraphy, discussed the application of barometeric indicationsto meteorological forecasting, investigated sound, and originated the use of the pendulum for measuring gravity.
His outstanding work, however, was as a microscopist; he made important improvements in the compound microscope. Hooke's Micrographia was published in 1665; its main importance to biology is the accuracy and beauty of the illustrations. He portrayed a polyzoon for the first time, and discerned the minute markings on fish scales, the foot of the fly, the structure of the bee's sting, and the radulae of the mollusk. His representations of minute objects, such as the compound eyes of a fly, the gnat and its larvae, the flea, and louse, are outstanding. He compared the structure of cork to a honeycomb, describing it as composed of cellulae and showed the microscope structure of cork with the walls bounding the "cells" a term in biological nomenclature which he originated. Hooke investigated the structure of feathers, the leaf fungus, the development of mold, and the structure of moss. His other writings include Lectiones Cutlerianae (1678-1679) and Posthumous Works (1705). Hooke died in London on Mar. 3, 1703."
Reference was made to "Pioneers in Cell Biology" which discussed both Anton Van Leeuwenhoek and Robert Hooke and also showed that the compound light microscope having 3 lenses and magnifying things to 30 times their size, was invented by Robert Hooke.
"Robert Hooke (1635-1703) Robert Hooke was born in England. At the age of 30, he invented a simple microscope called the compound-light microscope. It had three lenses. It could magnify things to 30 times their size. He also built the first telescope. Hooke examined many things. One of the things he looked at was a piece of cork. Cork is made of dead wood. Through a microscope, it looks like rows of tiny boxes. These boxes For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
109 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -110- reminded Hooke of something. He thought they looked like the tiny rooms that monks lived in at their monasteries. The rooms were called cellula. That's where we get the word cell. Hooke was the first scientist to observe cells and give them their name. But he did not understand how important cells were to the study of living things."
By referring to M.B.V. Roberts Book of Biology, a Functional Approach Fourth edition, again material was placed before this Court that it was 'Robert Hooke' who was the designer of the first optical microscope, the same reads as under:
"Cells were first described in 1665 by Robert Hooke, a scientist of great talent and versatility who was an accomplished technician as well as a biologist. He designed one of the earliest optical microscopes with which he examined, amongst other things, thin sections of cork. He discovered that cork is composed of numerous box-like structures which we now know to be dead cells. Though Hooke coined the word cell for these structures he did not realize their significance. As more and more material was examined under the microscope it gradually became apparent that the great majority of organisms are composed of cells, a fact which is embodied in the cell theory."
Similarly, the book titled Servants of Nature by Lewis Pyenson & Susan Sheets-Pyenson, was referred to, which trace the development of science and the discovery by the prominent scientists, to show that 'Robert Hooke' was followed by Antoni van Leeuwenhoek, 40 years later.
"Robert Hooke displayed this world in his Micrographia of 1665, with detailed plates of the flea and the louse; Antoni van Leeuwenhoek (1632-1723) followed forty years later with pictures of bacteria and protozoa illustrating his papers in the royal Society's Philosophical Transactions."
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
110 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -111- Not to leave apart the opinion of the experts whereby reference had been made to 'Jansen & Jansen Brothers' which was opined by the experts of the Panjab University. The historical important events in cell biology has spelled out in 3rd Edition of Biological Science, was referred to, to show that though the Jansen Brothers were also credited with inventing the compound microscope but their period of existence was of 1590 and Robert Hooke was of 1665. It was, accordingly, very ably submitted that there was no scope for confusion in the minds of the students as there was no option regarding 'Jansen & Jansen' and in the absence of any such option, the correct option would only be 'Robert Hooke'. The paper-setters had put in 4 different scientists and the question was clear and the students having background of Botany would not have such a doubt. It was a choice of the professional and a scientific choice and no student of science would treat Robert Hooke as the inventor, keeping in view the said 4 options given for which the students had to choose from. The table which includes Jansen, Robert Hooke, Leeuwenhoeck, Robert Brown, reads as under:
"Table 5.1 Some historically important events in cell biology 1590 Jansen invested the compound microscope, which combines two lenses for greater magnification. 1665 Robert Hooke, using an improved compound microscope, examined cork and used the term 'cell' to describe its basic units. He thought the cells were empty and the walls were the living material. 1650-1700 Antony van Leeuwenhoeck, using a good quality simple lens (mag. x 200), observed nuclei and unicellular organisms, including bacteria. In 1676, bacteria were described for the first time as For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
111 of 129 ::: Downloaded on - 11-09-2016 01:08:14 ::: CWP-12963-2016 (O&M) & other connected cases -112- 'animalcules'.
1700-1800 Further description and drawings published, mainly of plant tissues, although the microscope was generally used as a toy.
1827 Dolland dramatically improved t he quality of lenses. This was followed by a rapid spread of interest in microscopy.
1831-3* Robert Brown described the nucleus as a characteristic spherical body in plant cells."
101. Regarding question No.112 of Set-2 of Botany, the subject experts of the Panjab University had opined that the choices given were incorrect and the University had given option No.2, as correct. The said question and the explanation reads as under:
"Question No.112 Contents of Question:
Which statement is not correct about photosynthesis in Ficus reltgeosa (Peepul tree).
Options:
1. It releases Oxygen during day.
2. It releases Oxygen during night.
3. It releases Carbon dioxide during night.
4. It releases Carbon dioxide and oxygen during day.
Explanation: The choice is incorrect, as this plant does produce some oxygen during the night due to CAM."
Reliance was placed upon the fact that the question was phrased in an negative manner and what was not correct about the photosynthesis in the Peepal tree, which was referred to by its biological name, was to be given. It was submitted that there was only a religious reverence and belief amongst the population that the tree releases oxygen during the night. The response of the Panjab University was un-warranted and no exception could be taken on to the opinion of respondent- For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
112 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -113- University. It was submitted that there was no such tree which would produce oxygen at night and the biological system of trees were such that the oxygen were produced during the morning due to the sunlight and thus, there was a molecular mechanism of photosynthesis which took place. It was, accordingly, submitted that the highest level of decision making had taken place, by arriving to at such a conclusion and these were bona fide decisions by not accepting the Panjab University experts and relating professionally and scientifically, only in an intellectual competitive sense. Reliance was, accordingly, placed upon the book of "Biochemistry & Molecular Biology of Plants" Second Edition, edited by Bob B.Buchanan, Wilhelm Gruissem and Russell L.Jones, which would go on to show that the process of photosynthesis take place only along with sunlight, when the H2O was broken up by the plants. It was, accordingly, submitted that no green plants were capable of releasing oxygen at night and accordingly, there was a myth associated with the Peepal tree. Similarly, reliance has been placed upon the book "The Molecular Life of Plants & Introduction to Plant Psychology" Fourth Edition, by William G.Hopkins Norman P.A.Huner, Third Edition by Lincoln Taiz and Eduardo Zeiger, Second Edition By Robert E.Blankenship, to show that the capability to oxidize H2O to O2 had fundamentally changed the development of life on earth and was studied by the scientists to understand how the natural system works, also in the context of artificial systems of energy conservation. Reference was also placed upon an article printed in 'The Hindu' by Senthil Subramanian, while repeling the myth that Peepal tree would release oxygen at all times. It was, accordingly, submitted that in the absence of For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
113 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -114- any material to the contrary, the onus of which was on the petitioners, there was nothing wrong in the answer keys.
102. Mr.G.S.Bal, Senior Counsel along with the petitioner, Ms.Garima, painfully sought to dispel the opinion of the experts of question No.133 of Botany Set-2, which had not been addressed by the subject experts of the Panjab University as incorrect. Resultantly, the opinion of the college committee and the school committee regarding the question was challenged on the ground that the option No.2 'Arabidopsis' was correct and the answer had been wrongly invalidated. Question No.133 and the explanation given by the college and the school committees read as under:
"Question No.133 Contents of Question: Which organism is known as Drosophila of plant kingdom:-
1. Sachhharomyces
2. Arobidopsis
3. Capsella
4. Danio Explanation: Correct answer is "Neurospora", which is not mentioned in the given options. Therefore, the question may be treated as wrong and accordingly, equal weightage may be given to all the candidates.
Explanation: "Neurospora" is the correct answer of the question but this option has not been mentioned in the given options. So, the question may be considered invalid and equal weightage may be given to all the candidates."
Reliance was placed again on 'Trumans Objective Biology' to submit that 'drosophila of plant kingdom' was 'arabidopsis' only and 'neurospora' belong to the fungi variety. The relevant material reads as under:
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
114 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -115-
"37. Drosophila of plant kingdom is (1)Neurospora (Pink/red bread mould) (2)Aspergillus (green mould) (3)Maize *37. Arabidiopsis thaliana (cruciferae) is really Drosophila of plant kingdom.
Organism Chromosome Number
Plants
Vicia faba (broad bean) 12
Pisum sativum (garden pea) 14
Allium cepa (onion) 16
Zea mays (maize) 20
Solanum tuberosum (potato) 48
Brassica oleracea (cabbage) 18
Raphanus sativum (radish) 18
Nicotiana tobacum (tobacco) 48
Haplopappus gracilis (Compositae) 4
Ophioglossum reticulatum
(Adder's tongue fern) 1262
Datura stramonium (Jimson weed) 24
Oenothera biennis
(evening primrose) 14
Triticum aestivum (bread wheat) 42
Triticum turgidum (emmer wheat) 28
Arabidopsis thaliana (crucifer) 10
Haploid DNA Content (the C value) of Selected Prokaryotes and Eukaryotes Organism C value Base Pairs Length* (bp) PROKARYOTES 4.1x106 1.4mm Bacteria Escherichia Coli Salmonella typhimurium 1.1x10⁷ 3.8 mm Viruses and phages 5,386 1.8µm Φx174 Lambda (λ) 4.65x10⁴ 16µm For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Organism C value
Base Pairs Length*
(bp)
T2 1.75X10⁵ 60µm
WUKARYOTES 2.7x10⁷ 9.2mm
Fungi
Neurospora crassa
Saccharomyces cerevisiae 1.75x10⁷ 6.0 mm
Plants 2.7x109 93cm
Zea mays (maize)
Arobidopsis thaliana 1x10⁸ 3.4 cm
Animals 3x10⁷ 2.7 cm
Caenorhabditis elegans
Drosophila melanagaster 1.75x10⁸ 6.0 cm
Rana (frog) 2.25x10¹º 7.7 m
Mus musculus 2.2x109 75 cm
Homo Sapiens 2.75x109 94 cm
It has been pointed out that subsequent theories have proved that the question was of the plant kingdom and not of the fungi and therefore, the opinion of the experts is not upto the mark. The said issue, apparently, has not been really discussed in detail by the expert committees, while declaring the same unnecessarily invalid.
Reliance can be placed upon 'Leonelli S.' whereby reference has been made to plant biology and bio-technology and it has been opined that option No.2 'Arabidopsis' was the organism known as 'drosophila for the plant kingdom'. Relevant portion reads as under:
"Plant Biology and Biotechnology Biotechnology has helped to solve many conundrums of plants life that had long remained a mystery to mankind. This volume opens with an exhaustive chapter on the role played by thale cress, Arabidopsis thaliana, which is believed to be the Drosophila of the plant kingdom and an invaluable model plant for understanding basic concepts in plant biology.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
116 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -117- Q: What is the common name for Arabidopsisthaliana (drosphila of plant kingdom)?
The common name of for A thaliana is neurosphora. It is called as drosphila of plant kingdom because it has a very few number of chromosome that help a lot to the scientist for research purpose in plant kingdom as in drosphila of animal kingdom." The Panjab University, in such circumstances, had opted not to give any opinion to question No.133 of Botany Set-2 and had found the answer keys to be sustainable. In the absence of any valid opinion rendered by the University experts as to why the opinion of the Panjab University could not be sustained, the question was wrongly declared invalid.
103. The ancillary argument raised in the case that answer keys are not liable to be corrected is also liable to be rejected, in view of the Kanpur University's case (supra) and also judgment of the Apex Court in Rajesh Kumar & others Vs. State of Bihar & others 2013 (4) SCC 690. The directions issued by the Division Bench that a fresh examination is to be conducted on account of the re-draw of the merit-list, was set aside by the Apex Court on the ground that if there was a mistake in the model answer key, then the best way was to correct the key and get the answer scripts re-evaluated and the same would not give any unfair advantage to any of the candidates. Relevant observations read as under:
"16. The submissions made by Mr. Rao are not without merit. Given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
117 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -118- the earlier examination to call for a fresh attempt by all concerned. The process of re-evaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case.
17. That brings us to the submission by Mr. Rao that while reevaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners-respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the cut off mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
118 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -119- therefore, prayed for a suitable direction that while re-evaluation can determine the inter-se position of the writ petitioners and the appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cut off line.
18. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list."
104. The necessity for the Court to go into the questions has arisen only on account of the fact that the final committee of the respondent-University had chosen not to give any valid reasons for coming to the conclusion for accepting or rejecting the subject experts' opinion whereas even the subject experts have opined as to why and how the answer keys were not matching. The observations of the committee read as under:
"Final Observations of the above committees are as under:-
In all, around 131 observations pertaining to 21 questions of Physics, 106 observations pertaining to 31 Questions of Chemistry, 214 Observations pertaining to 30 questions of Botany and 147 observations pertaining to 28 questions of For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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Zoology were received from the candidates as objections through emails.
Out of the above figures, the objections against approximately 4 questions of Physics, 4 questions of Chemistry, 10 questions of Botany and 8 Questions of Zoology have been made with proper references/explanations and by many candidates. Rest of the innumerable objections (figures mentioned above), appear to have been made just casually without any constructive or proper explanation/reasoning or bearing comments like "out of syllabus", my answer is .............. and your key is ..........." "answer should be this........." "answer can be this......... or this ........." "none is correct" " Question No............ and question No.......... are doubtful" or have been made just by one or at the most two candidates out of whole lot of around 15000 candidates who have taken the Test.
Still irrespective of the baseless/inappropriate objections made, the above independent Committees constituted by the University have gone through each and every objection in depth, so that no candidate is left to any kind of loss. The said Committees have ultimately declared almost all of these above type of objections as immaterial and invalid.
FINAL CONCLUSIONS:-
ZOOLOGY Set-I Question No.152 This question declared invalid.
Set-I Question No.195 Option (s) needs to be changed. Correct option is (3) instead of option (4).Set-II Question No.161, 178, 190 & 193
These questions declared invalid.
BOTANY
Set-I Question No.131
This question declared invalid.
Set-II Questions No.124 & 133
These questions declared invalid.
Physics
Set-I All the questions with key declared correct.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
120 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -121- Set-II Questions No.38, 40 & 44 These questions declared invalid.
CHEMISTRY
Set-I Question No.60
This question declared invalid.
Set-II Question No.69
This question declared invalid.
RESOLVED:-
It has been unanimously decided by the Committee Members that for the questions, which have been declaredinvalid, equal weightage be given to all the candidate as per the recommendation of Subject Experts.
For the question No.195 of Zoology (Set-I), where a change in option has been recommended, it has been unanimously decided by the Committee Members that the necessary change be made in the answer key and marks be given according to changed answer key of this question.
Accordingly, as per the above observations, the Committee unanimously recommends to revise the Answer Key and to declare the result accordingly."
A perusal of the same would, thus, go on to show that the arguments raised by the counsel for the petitioners are well justified which led this Court to go into the factual aspect as to whether there were justifiable reasons to accept or reject the answer keys, as recommended by the other 3 expert committees. Had the respondent- University's committee also carried out the said exercise, perhaps this Court would not have done the exercise which the committee was expected to do and give valid reasons. It is trite law that reasons give us an insight as to what weighed with the decision making process which in the present case is absent. This Court cannot lose sight of the fact that the cut-off date of 30.09.2016, which is the last date for counselling and For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
121 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -122- is drawing tantalizingly near and proceedings have been carrying on from 09.08.2016 onwards. Therefore, by directing the University Committee to further go into the questions and give reasons would only lead to further delay and anxiety on the part of the students who have to finalise their streams and therefore, the said exercise cannot be conducted, at this stage.
105. Resultantly, it is held that by resorting to the percentile method, merit has not been disturbed, as such, as a common principle has been applied to all the students from both the tests and they have been put on a common pedestal. However, keeping in view the above discussion, this Court is of the opinion that the experts of the respondent-University had not adequately dealt with various questions. Some of them have been unnecessarily declared invalid, even though the same depicted the correct answer keys and accordingly, the students are entitled for correction on the basis of the said answer keys. Reference can, accordingly, be made to question No.161, 169 and 190 of Zoology of Set-2 which depicted the correct answer and question No.133 of Botany Set-2, which also depict the correct answer. The decision to invalidate the answer keys of these questions was not justified and accordingly, the University is directed to correct the answer keys by resorting to the original answer keys for the above 4 questions. Similarly, benefit of questions No.51 & 62 of Chemistry Set-1 had been declared invalid, which was justified by the Panjab University experts and the subsequent opinions taken by the experts was not justified. For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
122 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -123- Therefore, the benefit of those 2 questions should also necessarily flow and the said questions be declared invalid. The necessary correction be carried out within a period of 3 days and the percentile be calculated, accordingly.
Issue No.(iii): Whether the action of the respondent-University in not displaying the composite result of the students of both the tests, showing their percentile, had led to lack of transparency and fairness and whether the relative performance should be put in public domain?
106. The openness and transparency in the system had been provided by the Apex Court in Kanpur University (supra) wherein it has been held that the decision of the University not to publish the answer key would be a remedy worse than the disease and the students would have to suffer injustice in silence. Relevant observations of the Apex Court read as under:
"These appeals raise a some what awkward question: If a paper- setter commits an error while indicating the correct answer to a question set by him, can the students who answer that question correctly be failed for the reason that though their answer is correct, it does not accord with the answer supplied by the paper- setter to the University as the correct answer ? The answer which the paper-setter supplies to the University as the correct answer is called the 'key answer'. No one can accuse the teacher of not knowing the correct answer to the question set by him But it seems that, occasionally, not enough care is taken by the teachers to set questions which are free from ambiguity and to supply key answers which are correct beyond reasonable controversy. The keys supplied by the paper-setters in these cases raised more questions than they solved.
xxxx xxxx xxxx xxxx The findings of the High Court raise a question of great For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
123 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -124- importance to the student community. Normally, one would be inclined to the view, especially if one has been a paper setter and an examiner, that the key answer furnished by the paper setter and accepted by the University as correct, should not be allowed to be challenged. One way of achieving it is not to publish the key answer at all. If the University had not published the key answer along with the result of the test, no controversy would have arisen in this matters which involve the future of hundreds of students who are aspirants for admission to professional courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students would have had to suffer the injustice in silence. The publication of the key answer has unravelled an unhappy state of affairs to which the University and the State Government must find a solution. Their sense of CL case. But that is not a correct way of looking at these fairness in publishing the key answer has given them an opportunity to have a closer look at the system of examinations which they conduct. What has failed is not the computer but the human system.
16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key-answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong 82by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well- versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U.P. Those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.
17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
124 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -125- knowledge of the subjects as the students have is derived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong."
In Manish Ujwal & others Vs. Maharishi Dayanand Saraswati University & others 2005 (13) SCC 744, the High Court had refused to interfere with the answer keys on the ground that it could not be said with certainty that the answer keys were erroneous or incorrect. The Apex Court noticed that experts had come to the conclusion that the answer keys were erroneous and the answer keys provided by the University were wrong and therefore, deprecated the University's casual approach provided by the concerned persons. Accordingly, re- evaluation was directed by changing the correct answer keys and by setting aside the judgment of the High Court and imposing costs of Rs.1 lakh. Relevant observations read as under:
"11. The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be mace to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
125 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -126- prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reasons. We mention few of those; first and paramount reason being the welfare of the student and a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answer; the second reason is that the courts are slow in interfering in education matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answer is adopted by concerned persons, directions may have to be issued for taking appropriate action, including the disciplinary action, against those responsible for wrong and demonstrably erroneous key answers but we refrain from issuing such directions in the present case. The second counselling for the admission abovementioned, we are informed, is fixed from 25th August, 2005, onwards. We direct re-evaluation of all the questions by feeding correct answers, as above noticed, and on that basis correct number of marks obtained by all the students should be assigned and their ranking prepared. This exercise shall be completed within a period of three says from today. List so prepared shall be put on internet soon thereafter as also be published in the newspapers wherein it was earlier published. The second counselling and admissions hereinafter in the medical and central courses in the State of Rajasthan in Government colleges as also in the private colleges insofar as the State quota is concerned would be made on the basis of ranking as per the list which will now be prepared by the University pursuant to the directions of this Court. The merit list shall be prepared for the same number of students as it was prepared earlier while declaring the results on 22nd 23rd May, 2005."
107. The said aspect was also examined by the Learned Single Judge in Ritika Singh's case (supra) regarding Clause 7(11) which had For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
126 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -127- prohibited the students from carrying the question booklet, which was held to be illegal and arbitrary. It was also further held that for the future, the University would allow the candidates to carry out the question papers, subject to certain conditions, as the stand of the University was generating more and more litigation and causing hardship to the students. Similarly, the students here are in dark as to how their peers have done comparatively by holding back the complete merit-list, which should be open to one and all, to see the percentile of others and how they are placed. The University is, thus, only creating unsatisfaction and heartburn, which is one of the causes of the present litigation. The grouse of the petitioners that the fact that how other candidates have relatively scored and a combined merit-list has not been drawn up and had not been put on the website, can be easily addressed to, as such, by showing the relative percentile of all the candidates. Counsel for the University, even otherwise, is not averse to the said suggestion, especially keeping in view the fact that eventually even at a subsequent point of time, keeping in view Clause 25(a), wherein the merit-lists are to be put up 7 days before the counselling, the University has to adhere to such a procedure, for candidates of different categories. In such circumstances, it would also be appropriate for the University to display the combined/composite merit-list of all the candidates who had given their examinations, to show at what percentile they stand, so that there is transparency and openness in the system. Needful be done within a period of 3 days from today.
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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108. Accordingly, issue No.(iii) is held partly, in favour of the petitioners that the composite result of both the tests, showing the percentile of the students should be put on the website as the same has led to lack of transparency and fairness. The said exercise be carried out 3 days after the necessary corrections which have been made, as per issue No.(ii).
109. Resultantly, CWP-12963, 13239, 13624, 14090, 16682 & 16906-2016, are partly allowed. The resort to percentile system is upheld, keeping in view the changing circumstances, as noticed above and since the same principle has been applied to one and all and the relative merit is not disturbed. The respondents are entitled for the correction of the answer keys, as mentioned above and benefits of which will be given by not declaring questions No.161, 169 & 190 of Zoology and 133 of Botany of Set-2, invalid whereas questions No.51 & 62 of Chemistry Set-1 is to be declared invalid. The result be put on the website after necessary corrections, by showing the relative percentile of all the candidates.
110. Accordingly, CWP-13308, 15417 & 17126-2016, whereby the reserved category candidates have failed to make the cut of 50 percentile, are, accordingly, dismissed, keeping in view the fact that the requirement of the notification was to have 50% in the percentage and the subsequent decision whereby the percentile was fixed at 50th percentile. Once the candidates have failed to make the requisite cut, they are not liable to be considered for admission in the reserved For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
128 of 129 ::: Downloaded on - 11-09-2016 01:08:15 ::: CWP-12963-2016 (O&M) & other connected cases -129- category, as merit is the sole criteria. It is further clarified that as per the time schedule fixed for filling up the seats of the State Government/institutions, which was to be conducted from 03.09.2016 to 05.09.2016, the same has not been done by the respondent-University, in view of the marathon proceedings which have been going on in the present set of cases and hearing has been on since 09.08.2016, on practically, day-to-day basis. In such circumstances, the time-schedule prescribed is extended and accordingly, the first round of counselling be held on 16-17.09.2016 and the candidates be given adequate time to join, by 20.09.2016. Regarding the second stage of counselling, the University shall adhere to the fixed schedule.
SEPTEMBER 09, 2016 (G.S. SANDHAWALIA)
sailesh JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
For Subsequent orders see CWP-13239-2016, CWP-13308-2016, CWP-13624-2016 and 2 more.
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