Madhya Pradesh High Court
Sushil Kumar Mishra vs Union Of India on 5 April, 2016
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR.
SINGLE BENCH: JUSTICE SUJOY PAUL
W. P. No. 7409/2014
Sushil Kumar Mishra
Vs.
Union On India and another
_________________________________________________________________
Shri K.C. Ghildiyal, Advocate for the petitioner.
Shri Satyendra K. Patel, learned counsel for the respondents.
________________________________________________________________ (Order) 05/04/2016 The petitioner, a candidate is at logger head with respondent No. 2 on the question of valuation of two answers in the examination conducted namely National Eligibility Test (NET) in the month of June, 2012.
2. Shri Ghildiyal, learned counsel for the petitioner contended that the answers of two questions are clearly wrong. These are the answers of Question No. 14 of Paper 2 and Question No. 20 of Paper 3. The petitioner made a request by fulfilling formalities for its correction. The said request was turned down. By placing reliance on certain books enclosed as Annexure P/6 to P/8, it is urged that the said answers are clearly wrong. Hence, it is prayed that the respondents be directed to issue Qualifying Certificate to the petitioner after reexamining the answer sheets with their prescribed books. In support of said contention, reliance is placed on 1983 (4) SCC 309 (Kanpur University through Vice Chancellor and others vs. Samir Gupta and others), AIR 2006 SCW 4703 (Manish Ujwal and others vs. Maharishi Dayanand Saraswati University and others) and 2014 (3) MPLJ 84 (Chanchal Modi vs. State of M.P. and another).
3. Prayer is opposed by Satyendra K. Patel, learned counsel for the respondents. By taking Court on various paragraphs of return it is urged that the answers were prepared by the experts. Scope of judicial review in such cases is very limited. Similar challenge to various questions and selection process is turned down by various Courts. There is no illegality in the answer sheets. It is further
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W.P. No. 7409 of 2014urged that a meeting of different subject experts was arranged for reexamination of subjects and keys. After undertaking said exercise by the experts, results were declared. Thus, no interference be made in this petition.
4. The parties confined their arguments to the extent indicated above.
5. I have heard the learned counsel for the parties and perused the record.
6. The point involved in this case is no more res integra. This Court in Alok Gupta vs. M.P. Professional Examination Board and others 2012 (1) MPLJ held as under:-
"The Apex Court in the case of Kanpur University (supra) has dealt with the question. It was held that the key answer should be assumed to be correct unless it is proved to be wrong and that should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. The Court further observed that the key answer 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."
7. After following the dicta of Kanpur University (supra) a Division Bench of this Court in Anjali vs. Chairman 1990 MPLJ 80 held as under:-
"6. What happens when the correctness of this key answer is questioned ? The matter came for consideration by the Supreme Court in Kanpur University v. Samir Gupta. AIR 1983 SC 1230. It was held 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 by an inferential process of reasoning or by a process of rationalization. The Court further observed that the key answer 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 it as correct. In case of doubt, the key answer has to be preferred. When the key answer is shown to be incorrect beyond the realm of doubt that it should be rejected, in that event alone,the examinee cannot be penalized for not giving an answer which accords with the key answer. This decision was followed by a Division Bench of the Allahabad, High Court in the case of Pankaj Bhalla v. Rohilkhand University, Bareilly, 1989 All LJ 80.1. Another Division Bench of the Allahabad High Court (Lucknow Bench), in Krishna Kumar Roy v. State of U.P., Writ Petn. No. 3108 of 1980, decided on 17-12-1980 : (reported in AIR 1081 All 287), held that the Court should not lightly interfere with the opinion expressed by academic experts but may interfere only where the expert takes a view which no reasonable person could possibly
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take. The correctness or otherwise of the key answer, therefore, be based upon the touch stone of the decision in Samir Gupta's case (supra). (Emphasis supplied)"
8. In para 11 of Anjali Saxena's case (supra) Division Bench held as under:-
"11. For the aforesaid reasons, we are of the opinion that none of the petitioners in the two petitions could demonstrate that the key answers to the questions, referred to by them in their respective petition and as referred to above, are incorrect, i.e., they are such that no reasonable body well-versed in a particular subject, would regard it as correct. It may be that the answers ticked as correct by them may not be wholly wrong or may even be closely correct to the key answer, but then, as we have pointed out above, unless the key answer is demonstrated to be 'wrong', the key answer should be accepted as the correct answer."
9. Another Division Bench of this Court in Vivek Jain vs. Professional Examination Board AIR 1994 MP 164 opined as under:-
"13. The question is, whether any question admitting of two or more correct answers, out of four possible answers, deserves to be cancelled ? The Board has power to cancel such a question. If the Board has erred in not doing so, should the Court not cancel such a question ? The underlying idea behind the objective test is that a candidate marking one of the four possible answers to a question is not required to describe or give reasons to support his decision. When out of four possible alternatives only one possible alternative is correct, there is always an element of chance that the candidate may just by fluke or, accident mark the correct alternative. To control this evil, negative marking is done. But that way also one mark, i.e. 1/3 of the full value of the question, if carrying three marks, is deducted. If a question admits of two or more correct answers out of four possible alternatives, the possibility of the candidate having marked the correct answer by accident increases in direct proportionate to the number of correct answers. With respect to such a question, the candidate may have marked the correct answer by chance or accident and yet may assert in Court that he purposely and knowingly marked the correct answer. There is no means of checking such a claim. The privilege of marking is given only to candidates appearing in objective tests. By the way, we the Judges do not have such a privilege to indicate our decision to matters coming before us by marking one of the two or three possible options open to us. We have to give reasons in support of our answer. This is not to decry the system of objective test, which is extensively being used in competitive examinations. In the conventional descriptive test, a candidate is required to describe his answers. That leaves no room for doubt as to how far the answers given are correct. But the demerit of the descriptive test is that only a few questions can be asked. It was not uncommon in our days of studenthood that some students used to prepare only a few expected questions and
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would come out successfully in the exams. Students with poor or half knowledge of the subject coming out successfully in descriptive type of examinations was, and is, not an uncommon feature. As against this, the objective tests cover a wide area of the subject and the knowledge of the candidate is extensively tested. The system of objective test is no longer a new fangled concept and has taken, quite rightly, deep roots.
15. It may be made clear at the cost of repetition that the above rule will not apply where the Court comes to a conclusion that the key answer as also the particular answer marked by the candidate are both near-correct. In that situation,the controversy should be resolved by holding the key answer to be correct. This is the ratio of Samir Gupta's case, (AIR 1983 SC 1230) (supra). The other way of saying it is that, it may be that the answer marked by the candidate may not be wholly wrong or may even be closely correct to the key answer, but then unless the key answer is demonstrated to be 'wrong', the key answer should be accepted as correct answer. (See Anjali v. Chairman, Professional Examination Board in 1990 MPLJ 81) : AIR 1990 Madh Pra
253), In such a situation, the question would not be held to be defective and the student would not be given any advantage, if he marked any alternative other than the key answer."(Emphasis supplied)
10. The Kernataka High Court in Dr. Praveen Kumar vs. Rajiv Gandhi University of Health 2004 (3) Kar.L.J. 218 gave following findings:-
14. As is clear from the statement of objections filed by the University, when representations were made challenging the key answers, they would be reviewed by the subject experts representing different branches of medicine and same has to be approved by the P.G. Entrance Test committee. The experts would take care and refer to the relevant textbooks and reference books before suggesting any change in the key answers. It is only on the basis of the modified key answers, this scanned data is computed and the results are declared, so that all students who have taken the examination are treated equally and given the benefit of those modified answers, including to even the students who have not challenged the said key answers. Therefore, there is absolutely no discrimination in awarding the marks to all the students who have taken the examination on the basis of the modified key answers.
15. In the aforesaid judgment referred to by the learned Counsels for the petitioners, the Supreme Court was dealing with a case where there was no provision for challenging the answers though the scheme of the said examination provided for publication of the correct answers after the examination. Therefore, in view of the undisputed fact that there was no provision for challenging the key answers in the scheme of examination and when the expert of the University himself opined that some of the key answers were wrong coupled with the fact that sufficient material was placed by the students before the High Court to demonstrate that the said
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key answers were wrong coupled with the fact that most of the disputes are in respect of translation of English version of Science to Hindi, the Supreme Court upheld the judgment of the High Court, none of those factors are present in the present case. As such, those judgments have no application to the facts of this case.
16. In the aforesaid judgment, it was also held that the key answer should be assumed to be correct unless it is proved to be wrong. It should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, i.e., it must be such as no reasonable body of men well- versed in the particular subject would regard as correct. If there is a case of doubt, he would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalize 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 a system of multiple choice objective type test, care must be taken to see that questions having an ambiguous import are not set in the papers.
That kind of system of examination involves merely the tick marking of the correct answer. It leaves no scope for reasoning or argument. The answer is 'yes' or 'no'. That is why the questions have to be clear and unequivocal. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it."
In para 20, the Karnataka High Court held as under :
20. As long as the procedure adopted in evaluation of these answer scripts are not arbitrary, reasonable, consistent, then the system cannot be found fault with. As long as all the students who took the examination are treated equally, then they cannot have any grievance whatsoever. It is settled law that in academic matter, the University's word is the last word. Court neither has the necessary expertise nor infrastructure to go into the correctness of such decision. This Court cannot sit in judgment over those findings and examine the material on record and arrive at its own conclusion as a Court of appeal. It is also not possible in such circumstances to go on appointing the committees after committees to go into the correctness of the decision of the committee. There won't be any end to this exercise. Therefore a key answer should be assumed to be correct unless it is proved to be wrong. It should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. 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. If it is a case of doubt, unquestionably key answer is to be preferred. Only if it is beyond the realm of doubt, possibly judicial review is permissible."
(Emphasis supplied)
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W.P. No. 7409 of 201411. The Supreme Court in Himachal Pradesh Public Service Commission vs. Mukesh Thakur 2010 (6) SCC 759 as under:-
"20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."(Emphasis added)
12. This Court in Alok Gupta (supra) opined that the question and answers derived by the experts from certain book cannot be said to be impermissible in the teeth of examination regulations nor can it be said that the experts have committed any error in doing the same, because it was in the province and prerogative of these experts. In absence of any malice being alleged against said experts or it is shown that said questions/answers are per se incorrect. It is further held that this Court is not obliged to act as an Appellate Authority to examine the correctness of questions/answers or authenticity of the book on which such answer is based. It is in the domain of experts.
13. The respondents have relied on the order of Supreme Court wherein challenge was made to criteria laid down for U.G.C. and NET Exam of June, 2012. The Apex Court held as under:-
"29. We are of the view that, in academic matter, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Court generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any "qualifying
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criteria", which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges, UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India.
30. The appeals are accordingly allowed and the judgment of the High Court is set aside. The Applications for impleadment and intervention are dismissed. There shall be no order as to costs."
(Emphasis supplied)
14. The Kerala High Court in W.P. No. 24443/12 (Saji Mathew vs. Union of India) held as under:-
"The petitioner would rely on Exts. P16 to P18 to substantiate his contentions with regard to question No. 11, Ext. P19 in respect of question No. 14 and Ext. P20 in respect of question No. 48, to show that the answers given by the UGC in their final answer key are demonstrably wrong. No doubt, the material relied upon by the petitioner would certainly indicate that based on certain authoritative texts on the subject, the answer suggested by the petitioner to the questions aforementioned is also a plausible one. This is notwithstanding the stand of the respondent UGC that the answers given to the said questions, in the final answer key, represents the correct answer and has been certified as such by the panel of experts. The question however to be considered in the instant case is whether this Court, in exercise of its powers under Article 226 of the Constitution of India, can embark upon an enquiry as to which of two possible views should govern the valuation to be done by the UGC in the context of a test conducted by the UGC." The Kerala High Court did not entertain the said W.P. (Emphasis supplied)
15. In 2013 (10) SCC 519 [University Grants Commission and Another vs. Neha Anil Bobde (Gadekar)] the Apex Court held as under:-
"We are of the view that, in academic matter, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision
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of academic experts who are more familiar with the problem they face, than the Court generally are."
16. The relevant portion of Kerala High Court's judgment is reproduced in the return. It is apt to reproduce the same portion as under:-
"The petitioner, who relies on authoritative texts and legal pronouncements on the subject, is no doubt justified in holding a view that the answers that are supported by such authoritative text books and judicial pronouncements have to be taken into consideration while valuing his answer papers. In the instant case however, in view of the fact that the UGC itself have devised a procedure which safeguarded against the possibility of incorrect answers being published in an answer key, by appointing a panel of experts to go into the objections raised by candidates who were of the view that the answers published by the UGC in the draft answer key were wrong, the action of the UGC cannot be said to be arbitrary or unreasonable so as to justify an interference with the valuation procedure adopted by them. In this connection, it is necessary to note the decision of a Division Bench of this court in Nowfal.H. and Others v. Kerala Public Service commission and Others-[2014 (3) ILR 517 (Kerala)] where this Court, while dealing with a contention similar to that raised by the petitioner, placing reliance on the decision of the Supreme Court in the case of Kanpur University through vice Chancellor and Others v. Samir Gupta and Others-(1983) 4 SCC 309] drew a distinction between the facts that obtained in the Kanpur University's case and a situation where the procedure evolved by the examining authority was to publish a provisional key, invite objections, get them scrutinized with the help of experts and to act thereafter on the decision of experts. It was found by this Court that when it was apparent that what the petitioners were seeking was a review of even the decisions of experts, to whom the matter was referred by the examining authority under a procedure that was evolved by them, this Court in exercise of its powers of judicial review, would not sit in judgment over the experts and attract the criticism that it was, in the guise of judicial review, effectively acting as an appellate court. This was more so because, both in that case as well as the present one, the petitioners do not have a case that the persons, to whom the matter was referred by the UGC seeking their opinion as experts, were not actually experts or whether they were in any manner actuated by malice. In such a scenario, as already noted by the Division Bench judgment of this Court referred to above, this Court cannot interfere with the valuation process that has been adopted by the respondent UGC."
(Emphasis supplied)
17. If the contentions of the petitioner is tested on the anvil of principles laid down in aforesaid judgments, it will be clear that this Court cannot sit as an Appellate Authority to undertake the exercise of judicial review of the answers made. More so, when in the Mukesh Singh Thakur (supra), the Apex Court held
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W.P. No. 7409 of 2014that even if there was a discrepancy in framing the question or evaluating the answer, it can be for all the candidates appearing for examination and not for respondent No. 1 only. The Apex Court disapproved the procedure adopted by the High Court to examine the questions/answers. So far as the reliance on Chanchal Modi (supra) is concerned, the said judgment is based on peculiar facts and circumstances of that case and cannot be applied here. In view of the aforesaid judgments it is clear that scope of judicial review of answers is very limited. The petitioner has not alleged any malice against anyone. The petitioner is unable to establish any statutory violation also. Thus, no fault can be found in the action of the respondent-UGC. The UGC had appointed expert committee to examine the questions/answers. Report of said committee does not support petitioner's stand. This Court can not sit in appeal on the decision of said committee.
18. On the basis of forgoing analysis, no interference is warranted. The petition is bereft of merits and is hereby dismissed. No cost.
(Sujoy Paul ) Judge mohsin/