Gujarat High Court
Anurag Mithilesh Jha vs Organizing Chairman Joint Entrance ... on 18 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8586/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8586 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
ANURAG MITHILESH JHA
Versus
ORGANIZING CHAIRMAN JOINT ENTRANCE RXAMINATION
(ADVANCED) 2018
Appearance:
RAHUL SHARMA(8276) for the PETITIONER(s) No. 1,2,3
MS DISHA N NANAVATY(2957) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 18/07/2018
ORAL JUDGMENT
1. Two candidates and father of 3rd candidate, who answered Joint Entrance Examination (advanced) 2018 for admission to Indian Institute of Technology, have taken out Page 1 C/SCA/8586/2018 JUDGMENT present petition.
2. At the outset it is necessary to note that one petitioner (i.e. petitioner no.1) is declared unsuccessful (he did not clear the examination) whereas the petitioner no.2 and son of petitioner no.3 are declared successful in the examination and they have already taken and secured admission. 2.1 Though the said two candidates have already taken admission, they are still pursuing and prosecuting the petition to seek the relief prayed for in present petition.
3. In present petition the petitioners have prayed, inter alia, that:-
"8(A) Allow this petition (B) Issue a writ of mandamus or any other writ, order or direction to quash and set aside the impugned "Clarifications regarding answers of Numerical-Answer-
Type questions" dated 21.05.2018, which is annexed to this petition at ANNEXURE 'B'' (C) Issue a writ of mandamus or any other writ, order or direction to quash and set aside the impugned Answer Key for the JEE (Advanced) Examination, 2018, which Answer Key is annexed to this petition at ANNEXURE 'C'' (D) Direct the respondent to evaluate the answers to Section 2 of Physics, Chemistry and Mathematics in both Paper-I and Paper-II, as per instructions given in the question papers;
(E) Direct the respondent to display the revised keys for paper I and paper II of the JEE (Advanced) Examination, 2018, in accordance with the instructions contained in the question papers and further allow the candidates to give their feedback and comments on the same within the specified time frame.
(F) Direct the respondent to declare the results of the JEE (Advanced) Examination, 2018, as per the evaluation done in consonance of the instructions contained in the question papers (G) By way of interim relief, ex-parte direct the respondent not to publish the final list of successful candidates of the JEE (Advanced) Examination, 2018, till the disposal of this petition (H) By way of interim relief, direct the respondent not to proceed with the seat allocation process till the disposal of this petition.''
4. The petitioners have narrated below mentioned facts to Page 2 C/SCA/8586/2018 JUDGMENT explain the backdrop in light of which the petition is taken out 4.1 The petitioners submit that admission to the IITs are conducted through a two- stage examination process. The first stage, known as JEE (Mains), is conducted by the Central Board of Secondary Education, New Delhi. The JEE (Mains) are held both in the off-line mode and in the online modes. 4.2 Candidates, who have secured an All-India Rank up to 2,24,000 (including all categories) at the JEE (Mains) examination, are qualified to appear at the JEE (Advanced) examination. Admissions to the IITs are based solely on the performance of candidates in the JEE (Advanced). The JEE (Advanced) is conducted by one of the IITs by rotation and is held in a single day over two papers - Paper I and Paper II. For the JEE (Advanced) Examination, 2018, both the papers had questions worth 60 marks each from the subjects of Physics, Chemistry and Mathematics. Thus, each paper was of 180 marks and the total examination was of 360 marks. The JEE (Advanced) Examination is only conducted in the online mode. 4.3 The petitioners submit that the JEE (Advanced) Examination, 2018 were conducted by the respondent on 20.5.2018...... 4.4 The petitioners submit that the question paper (i.e. Paper I and Paper II) for JEE (Advanced) Examination, 2018, for each subjects, i.e. Physics, Chemistry and Mathematics, had three sections each. Section I carried 24 marks, Section II carried 24 marks and Section III carried 12 marks.
4.5 Petitioner no. 1, petitioner no. 2 and the son of the petitioner no. 3 had cleared the aforesaid JEE (Mains) Examination, 2018 and were registered to appear in the JEE (Advanced) Examination, 2018....
4.6 The petitioners submit that about 20 min before the start of the online examination for each paper, a sheet containing instructions on the examination, was circulated to each student. Moreover, being an online examination, as and when a new question was displayed on the computer screen, the same instruction appeared on the top of the question on each occasion.
4.7 The instructions, which form the basis of the present petition, and which were amended subsequently after the examination relates to Section 2 of each subject (Physics, Chemistry and Mathematics) in each of the papers (Paper-I and Paper-II). 4.8 The petitioners submit that on 21.5.2018, a day after the examinations, the respondent issued a ''clarifications regarding answers of Numerical-Answer-Type questions'', which substantially altered the instructions given to the candidates before the examination. The amended instructions brought in the concept of ''a range of correct answers'' as against original provision for ''correct answers truncated / rounded off to two places of decimals'' 4.9 Subsequently, on 25.5.2018, the respondent uploaded the copies of the respective responses of the candidates at the JEE (Advanced) Examination, 2018. 4.10 Also on 29.5.2018, the respondent uploaded the answer key for the aforesaid examination. The uploaded answer key was in accordance with the amended instructions for evaluating the answers.
4.11 On 30.5.2018, Petitioner no. 3 sent a email to the respondent, pointing out the discrepancies / irregularities that had crept in because of the amendment of the examination instructions. Petitioner No. 3 has not received any reply from the respondent so far.'' 4.1 So as to support and justify the relief prayed for in paragraph No. 8B to 8F the petitioner have raised, inter alia, below mentioned contentions:-
5(B) It is a settled law that rules regarding recruitment or admission must be laid down before the actual recruitment / admission process. Rules framed or amended Page 3 C/SCA/8586/2018 JUDGMENT after the recruitment / admission process is initiated, are untenable in law. In this view, the amending of the examination instruction by issuing a clarification on 21.5.2018, which is after the date of conduct of examination, i.e. 20.5.2018, is not permissible. Therefore, the ''clarification'', dated 21.5.2018, is arbitrary and in violation of Art. 14 of the Constitution.
5(D) It is equally well settled that if the rule specifies an act to be done in one particular way, then it can be done only in that way and no other. Thus, if the examination instructions provided that answers should be truncated / rounded-off to two decimal places, it could only have been answered in that particular way and no other. Also, the evaluation of the answers by the respondent could only have been done in the same manner. Thus, for example, accepting an answer as ''2'' when the correct answer, as per instructions, should have been ''2.00", is not permissible under law. Likewise prescribing a range for the answers when examination instructions ask for a specific correct answer is impressible. More illustrations to such variations in the answer key from the correct answer can be easily from ANNEXURE-D. 5(F) It is further submitted that recognizing a "range of answers'' as correct, causes prejudice to the candidate, who after spending precious time in attempting to answer the questions correctly, sees that the another candidate, who has only given an approximate answer gets an equal score in a question. It is well settled that that equals cannot be treated unequally. It is equally well settled that unequals cannot be treated equally. Treating of unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. 5(G) The criteria for deciding the exact ''range'' for the different answers of Section 2, in each subject of each paper, in the impugned answer key is also not understood. The whole process is not based on any recognized statistical or mathematical model and raises a senses of arbitrariness in fixing the ''range''. 5(H) It is submitted that great prejudice will be caused to the petitioners if the amended examination instructions are allowed to subsist. The questions of section 2, across the two papers in all the three subjects, together carry marks of 144 out of a total of 360 marks. In other words, they account for 40% of the total marks. An irregular evaluation in respect of these questions can seriously affect the All India Ranks of the petitioners.
5(K) It is submitted that the petitioners have a prima facie case. Irreparable damage will be caused to them if the amended examination rules and the erroneously prepared answer key are allowed to exist. The balance of convenience is also in favour of the petitioners. Therefore, the respondent deserves to be prevented from declaring the result of the JEE (Advanced) Examination, 2018 and the subsequent seat allotment.''
5. Mr. Sharma, learned Counsel for the petitioners reiterated above mentioned factual backdrop and contentions. He further submitted that the "examination instructions" (i.e. instructions issued at the time of commencement of examination) must have been strictly followed and the respondents could not have subsequently introduced any modification and change in the "examination instructions" declared by the respondents on Page 4 C/SCA/8586/2018 JUDGMENT commencement of the examination. He submitted that the rules of the game should not be changed after the game begins. According to learned Counsel the process adopted by the respondents is irregular, without authority of law and against settled position. So as to support his submissions and to controvert the submissions by respondents he submitted that the instructions mentioned in the question paper and / or in the broacher have force of law and that therefore any change in the examination instruction could not have been made after the examination commenced / concluded. He submitted that there is possibility or likelihood of prejudice to the petitioners in the matter of allotment and branch and / or institute. Mr. Sharma, learned Counsel relied on below mentioned decisions:-
1) K. Manjusree vs. State of Andhra Pradesh (2008) 3 SCC 512
2) Varun Kumar Agarwal vs. Union of India 2011 SCC Online Del 1133
3) The Bihar School Examination Board vs. Subhas Chandra Sinha 1970 (1) SCC 648
4) Union of India vs. O. Chakradhar (2002) 3 SCC 416
5) Jumma Masjid, Mercara vs. Kodimaniandra Deviah 1962 Supp (1) SCR 554
6) U.P.P.S.C., Through its Chairman vs. Rahul Singh 2018 SCC Online SC 609
7) Parmender Kumar vs. State of Haryana (2012) 1 SCC 177
8) Kanpur University vs. Samir Gupta (1983) 4 SCC Page 5 C/SCA/8586/2018 JUDGMENT 309
9) Asha vs. PT. B.D. Sharma University of Health Sciences (2012) 7 SCC 389.
5.1 So as to support his submission that the Rules should not be changed after examination, Mr. Sharma, learned advocate for the petitioners relied on the observations in paragraph No.32 of the decision in case of K. Manjusree v. State of Andhra Pradesh & Anr. [(2008) 3 SCC 512], which reads thus:-
"32. In Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve 2001 (10) SCC 51, this Court observed that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. In this case the position is much more serious. Here, not only the rules of the game were changed, but they were changed after the game has been played and the results of the game were being awaited. That is unacceptable and impermissible."
5.2 To support his said submission, Mr. Sharma, learned counsel, also relied on paragraph No.29 in case of Parmender Kumar & Ors. v. State of Haryana & Ors. [(2012) 1 SCC 177], which reads thus:-
"29. As has also been pointed out hereinbefore, this Court took notice of the fact that the Full Bench, on whose decision the High Court had relied, ultimately directed that the selections for admission should be finalised in the light of the criteria specified in the Government Orders already in force and the prospectus, "after ignoring the offending notification introducing a change at a later stage." In fact, this is what has been contended on behalf of the Appellants that once the process of selection of candidates for admission to the Post-Graduate and Diploma Courses had been commenced on the basis of the prospectus, no change could, thereafter, be effected by Government Orders to alter the provisions contained in the prospectus. If such Government Orders were already in force when the prospectus was published, they would certainly have a bearing on the admission process, but once the results had been declared and a select list had been prepared, it was not open to the State Government to alter the terms and conditions just a day before counselling was to begin, so as to deny the candidates, who had already been selected, an opportunity of admission in the aforesaid courses."
5.3 So as to support his submission that the instruction by Page 6 C/SCA/8586/2018 JUDGMENT way of examination instruction or the instruction in broacher or instruction mentioned in the prospectus have force of law, learned advocate for the petitioners relied on paragraph No.15(11) in the case of Varun Kumar Agarwal v. Union of India & Ors. (supra), which reads thus:-
"15(11). The cumulative effect of the above well enunciated principles of law, is that the terms and conditions of the brochure where they used preemptory language cannot be held to be merely declaratory. They have to be and must necessarily to be treated as mandatory. Their compliance would be essential otherwise the basic principle of fairness in such highly competitive entrance examinations would stand frustrated. Vesting of discretion in an individual in such matters, to waive or dilute the stipulated conditions of the brochure would per se introduce the element of discrimination, arbitrariness and unfairness. Such unrestricted discretion in contravention to the terms of the brochure would decimate the very intent behind the terms and conditions of the brochure, more particularly, where the cut off date itself has been provided in the brochure. The brochure has the force of law. Submission of applications complete in all respects is a sine qua non to the valid acceptance and consideration of an application for allotment of seats in accordance with the terms prescribed in the brochure."
5.4 So as to support his submission that even illustration, unless demonstrated to be repugnant, cannot be rejected and should be taken into account, Mr. Sharma, learned counsel relied on the observation in paragraph No.12 of the decision by Apex Court in case of Jumma Masjid, Mercara v. Kodimaniandra Deviah & Ors. [AIR 1962 SC 847] wherein it is observed that:-
"12. So far we have discussed the question on the language of the section and on the principles applicable thereto. There is an illustration appended.to s. 43, and we have deferred consideration thereof to the last as there has been a controversy as to how far it is admissible in construing the section. It is as follows:-
"A, a Hindu, who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorized to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B's dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.
In this illustration, when A sold the field Z to C, he had only a spes successionis. But he having subsequently inherited it, became entitled to it. This would appear to Page 7 C/SCA/8586/2018 JUDGMENT conclude the question against the appellant. But it is argued that the illustration is repugnant to the section and must be rejected. If the language of the section clearly excluded from its purview transfers in which the transferor had only such interest as is specified in s. 6(a), then it would undoubtedly not be legitimate to use the illustration to enlarge it. But far from being restricted in its scope as contended for by the appellant, the section is, in our view, general in its terms and of sufficient amplitude to take in the class of transfers now in question. Its is not to be readily assumed that all illustration to a section is repugnant to it and rejected. Reference may, in this connection, be made to the following observations of the judicial Committee in Mahomed Shedol Ariffin v. Yeoh Ooi Gark (1) as to the value to given to illustrations appended to a section, in ascertaining its true scope:
"It is the duty of a court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from an other system of jurisprudence as to the law with which they are the sections deal And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although no part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired."
5.5 So as to support his submission with regard to uncertainty and the submission that the answer key can be set aside by the Court, learned advocate for the petitioners relied on the observation in paragraph No.10 of the decision in case of U.P.P.S.C., through its chairman & Anr. v. Rahul Singh & Anr. (supra), Hon'ble Apex Court observed thus:-
"10. In Kanpur University, through Vice Chancellor and Others vs. Samir Gupta and Others 1, this Court was dealing with a case relating to the Combined Pre Medical Test. Admittedly, the examination setter himself had provided the key answers and there were no committees to moderate or verify the correctness of the key answers provided by the examiner. This Court upheld the view of the Allahabad High Court that the students had proved that 3 of the key answers were wrong. Following observations of the Court are pertinent:-
"16...........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 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........."
5.6 On this count, learned advocate for the petitioners also placed reliance in observation in paragraph No.16 of the decision in case of Kanpur University, through Vice-
Page 8
C/SCA/8586/2018 JUDGMENT
Chancellor & Ors. v. Samir Gupta & Ors. [(1983) 4 SCC 309] wherein Hon'ble Apex Court observed, inter alia, that:-
"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 82 by 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."
5.7 So as to oppose the objection by learned advocate for the respondents against the petition on the ground that other candidates, more particularly interested and affected candidates are not impleaded as party respondents in the proceedings and therefore, the petition is not maintainable, Mr. Sharma, learned advocate for the petitioners, relied on paragraph No.13 of the decision in case of The Bihar School Examination Board v. Subhas Chandra Sinha & Ors. [1970 (1) SCC 648] wherein Hon'ble Apex Court observed, inter alia, that:-
"13. This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular center. If it is not a question of charging any one individually with unfair-means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases ? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go."
5.8 On this count, Mr. Sharma, learned counsel, also relied Page 9 C/SCA/8586/2018 JUDGMENT on the observation in paragraph No.12 of the decision in case of Union of India & Ors. v. O. Chakradhar [(2002) 3 SCC 146], wherein Hon'ble Apex Court observed, inter alia, that:-
"12. As per the report of the CBI whole selection smacks of mala fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter-mixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishna Yadav (supra) applies to the facts of the present case. The Railway Board's decision to cancel the selection cannot be faulted with. The appeal therefore deserve to be allowed."
5.9 So as to support his submission that the prospectus is not scripture and that any clarification with regard to the details mentioned in the prospectus does not violate the rules or does not invalidate the examination or method of evaluation, and to oppose the contention raised by learned advocate for the petitioner, Mr. Shelat, learned counsel, relied on the observation in paragraph No.24 of the decision in case of Charles K. Skaria & Ors. v. Dr.C.Mathew & Ors. [(1980) 2 SCC 752), which reads thus:-
"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 Page 10 C/SCA/8586/2018 JUDGMENT 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. "
5.10 So as to support his submission that the author of the document is best suited to interpret and explain the contents, Mr. Shelat, learned counsel, relied on the observation in paragraph No.15 in case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & Anr. [(2016) 16 SCC 818], which reads thus:-
"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."
5.11 So as to support his submission that answer key should be presumed to be correct, more particularly when it is declared by the experts and the Court would refrain from casually assuming it to be incorrect, Mr. Shelat, learned counsel, relied on the observations in paragraph Nos.30 and 34 of the decision in case of Ran Vijay Singh & Ors. v. State Page 11 C/SCA/8586/2018 JUDGMENT of Uttar Pradesh & Ors. [(2018) 2 SCC 357], which read thus:-
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it; (ii) If a statute, Rule or Regulation governing an examination does not permit re- evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate..
34. Having come to the conclusion that the High Court (the learned Single Judge as well as the Division Bench) ought to have been far more circumspect in interfering and deciding on the correctness of the key answers, the situation today is that there is a third evaluation of the answer sheets and a third set of results is now ready for declaration. Given this scenario, the options before us are to nullify the entire re- evaluation process and depend on the result declared on 14 th September, 2010 or to go by the third set of results. Cancelling the examination is not an option. Whichever option is chosen, there will be some candidates who are likely to suffer and lose their jobs while some might be entitled to consideration for employment."
6. The respondents have filed reply affidavit and opposed the petition.
6.1 As a preliminary objection against maintainability of the petition it is contended that the petitioner no.1 failed to clear the examination and he is declared unsuccessful. According to the replying respondents the petitioner no. 1, could not reach even near to the final cut-off mark and that therefore after having appeared, attempted and answered the examination he cannot seek the directions prayed for in the petition.
6.2 It is further submitted that so far as petitioner no. 2 and Page 12 C/SCA/8586/2018 JUDGMENT the son of petitioner no. 3 are concerned they appeared and answered the examination and the son of petitioner no. 3 cleared the examination and has been declared successful (he secured rank of 1236) in JEE (Advanced) 2018 whereas the petitioner no. 2 (who, initially, did not clear the examination) is declared successful on the basis of extended merit list and has thus qualified and secured rank of 12804. The petitioner no. 2 and son of petitioner no. 3 have already taken and secured admission.
6.3 Thus, so far as the said two applicants are concerned upon having been declared successful in the examination and after having accepted the said result and having acted upon the said result by taking and securing admission, they have no right or justification or cause to maintain, pursue and prosecute the petition.
6.4 Beside the said contentions the respondents have also opposed maintainability of the petition on the ground that:-
3. That the present petition is based on the incorrect premise of the petitioners that there has been a post examination change in the manner of evaluation of the answers for the JEE (Advanced) 2018. It is respectfully submitted that this is not the case and the clarification issued by the respondent in no way changes, alters or adds to the instructions given to the candidates at the time of attempting the question papers. To the contrary, the same only explains the manner of evaluation and in point of fact, the results of the JEE (Advanced) 2018 have been published on 10.6.2018 and the evaluation has been done on the basis of the instructions given to the candidates prior to the examination.
4. That therefore, the present petition already stands satisfied and no orders need to be passed by this Hon'ble Court in terms of the prayers of the petition. The evaluation having already been done only in accordance with the instructions as contained in the question papers, with the revised answer keys for paper I and paper Page 13 C/SCA/8586/2018 JUDGMENT II having been released in accordance with the instructions contained in the question papers after duly considering challenges of candidates in the specified time frame as per the due process provided in the information brochure, there is no ground for interference in the answer keys, the results or the counselling process for allocation of seats. The detailed submissions explaining the instructions, evaluation and the clarifications will be set out below'' 6.5 The respondents have claimed that any change or alteration or modification in the "examination instruction"
or mode or method of evaluation has not been made and only a clarification, with reference to "examination instruction", that too for benefit and in the interest of students, was issued with a view to addressing and satisfying concerns and querries received from the students (applicants). In this context the respondent has clarified in the affidavit that:-
''5. That the reason for the clarification being issued was that queries were being addressed to the IITs from various candidates expressing their concerns that they had been informed by various couching centers/non-IIT entities that the candidates and not on the numerical value of the entry made by the candidates'' 6.6 So as to support the reply and submission that any change in the "examination instruction" has not been made and to demonstrate that the clarification / instruction issued on 21st May 2018 was merely a clarification, the respondent has explained and elaborated the pattern and the scheme of question paper and what the original "examination instruction" was and mode and method of evaluation and marking system and the subsequent clarification. For the said purpose it is averred and stated in Page 14 C/SCA/8586/2018 JUDGMENT paragraph Nos. 6 and 7 of the affidavit that:-
''6. That it is of great importance to explain the scheme of the question paper and the instructions given to the candidates there-in. Each set of instructions has at least 3 distinct parts; (i) the number of questions contained in that section (ii) the type of question i.e. whether it is numerical-answer-type, whether amongst the given choices either one or more option are correct, or only one option correct answer; (iii) the next instruction tells the candidate the marking scheme where applicable. The last part of each of these instructions informs the candidate about the manner in which the question would be evaluated and the marking scheme applicable.
7. Similarly, in Section 2 of each of the subjects in both papers the same scheme is followed and the candidate is informed that (i) the number of questions contained where the answer to each question is a numerical value (ii) the correct numerical value has to be entered (in decimal notation, truncated/rounded off to two decimal places) and (iii) the evaluation and marking scheme is ''Full marks: +3 if only the correct numerical value is entered as answer and ''0'' in all other cases.'' As would be demonstrated below each such numerical answer, if correct, remains to be correct regardless of the format in which the correct numerical value has been entered.
6.7 The respondents have, by means of an illustration, also explained the "examination instruction" issued to the candidates in the question paper. In this context the respondents have, averred and stated in paragraph Nos. 8 and 9 of the affidavit that:-
"8. In other words, by way of an illustration if the correct answer was the value two (2) and the candidate had not entered 2.00, the impression given by these entities to the candidates was that their answer would be marked as incorrect. This is however not the case since the correct answer being two (the numerical value 2), the candidate would get full marks regardless of whether he had entered 2,2.0,2.00 or 2.0000.... etc. That cases, such as this illustration are explicitly provided in text books....
9. That it is submitted that the confusion thus created by these entities was sought to be clarified in the interest of the students and the said clarification in no way changes the evaluation method already set out in the instructions to the candidates in the question papers."
6.8 The respondents have in their affidavit, also offered explanation as to why the need to issue clarification dated 21.5.2018 arose. While explaining the background and reason for issuing the said clarification, the respondents have averred and stated, in paragraph Nos. 10 to 12 of the affidavit that:-
Page 15 C/SCA/8586/2018 JUDGMENT "10. That the present petition itself indicates that the petitioners appear to have been misled by coaching entities, inasmuch as, reliance is placed on the solution keys released by "Resonance'', as demonstrated in Anneuxre-D of the petition.
11. That the JEE (Advanced) 2018 is a computer based test. Consequently, the marking is also done by using computer software and the respondent has ensured that complete accuracy is maintained in the evaluating the answers.
12. That the number of decimal places is known as ''precision'' and this is well known in all scientific modes of teaching. The same precision has been provided for in the instructions to the candidates and has been used for the evaluation and therefore, it is completely incorrect for any coaching institute or candidate to allege that there has been as change in the marking system, after the examination was conducted. To substantiate the submissions that this is the know concept of ''precision'' extracts from the Class VIII mathematics and Class-XI Physics and Chemistry text books published by NCERT which is already enclosed hereinabove."
6.9 In paragraph No. 13 of the said affidavit the respondents have offered further explanation to demonstrate that all that is done by the respondents is to clarify the "examination instruction" issued in the question paper on 20.5.2018 and any change either in the instruction or in the method of evaluation or in marking system, is not made. On this count it is averred and stated that:-
"13. That it is also pertinent to mention that in the instructions to the candidate for the numerical answer type questions, the correct answer is a ''numerical value'', the candidate is also given the instruction to round off or truncate the correct numerical value to the second decimal place. It is therefore inherent in these instructions that a range is contemplated in such answers, since a particular correct answer may (illustratively) be 2.5666 and the candidate may be correct in rounding it off to 2.60, 2.6 or 2.57 and if truncated, then 2.56; this again depends on the question itself and the range may be 2.50 to 2.60. This was only clarified in the clarifications given by the respondent and does not change the marking system. Precisely this type of eventuality is provided for in the examples appended to the clarification, i.e. ''If an answer is the number 11.36.7777777.....all answers entered within a specified range, for example 11.36 to 11.37 (this range is show for illustration purposes only) will be correct. Thus both answers 11.36 and 11.37 will be correct.
6.10 In paragraph No. 14 of the said affidavit the respondents have explained the procedure through which the answer key is prepared and finalized and the procedure through which the answers to the numerical answer type question are frozen. It is also explained and asserted that Page 16 C/SCA/8586/2018 JUDGMENT the provisional answer key and the final answer key were discussed and decided by approximately 75 to 100 subject experts who were involved in the process of preparing and finalizing the answer key and that challenge / objection by candidates were also taken into account. On this count the respondents have averred and stated in paragraph No. 14 that:-
"14. That the final answer key, including possible rages of correct answers of the numerical answer type questions, is frozen by the subject experts (Faculty of IITs) only after all the challenges to the provisional answer key were discussed and decided on by them; these subject experts consist of terms of two to three subject experts, in each subject, with such teams operating independently from each of the Zonal IITs (IIT Bombay, IIT Delhi, IIT Guwahati, IIT Kanpur, IIT Kharangpur, IIT Madras and IIT Roorkee) followed by further consideration by experts (Faculty of IITs, with the additional charge of Chairman / Vice-Chairman of the JEE (Advanced) Examination) representing all the 23 IITs i.e. in all there is a group of approximately 75 subject experts which deliberate on each challenge. This is after the questions have already been independently deliberated upon by about 100 subject experts before the provisional answer key was published. In some of the questions, there may be more than one possible correct answer, which is provided for in the final answer key. Thought at first blush this may appear o be the same as a ''range'' in the manner complained of any the petitioners, it is actually different, since it recognises the possibility of a different correct answer that is dependent on a different way of calculation.
6.11 Again in paragraph No. 15 the respondents have emphatically reiterated that "no new system of evaluation has been announced or carried out, the clarification only explains the existing system of evaluation". It is further mentioned in paragraph No. 15 that:-
"15. That it therefore, clearly emerges from the above that no new system of evaluation has been announced or carried out; the clarification only explains the existing system of evaluation. Moreover, in case a candidate has correctly entered the numerical value against a particular question (s)he is uniformly and transparently awarded the requisite marks, irrespective of the format in which the answer has been entered.'' The respondents have also emphasized that:-
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''18. That it is pertinent to point out that of the more than 1,55,000 number of candidates who appeared in the JEE (Advanced) 2018 on 20.5.2018 (1,57,496 in paper I and 1,55,091 in paper 2: both papers were compulsory), only a total of 777 candidates have challenged the initially published answer keys, of which only 212 candidates have challenged the initially published answer keys for the Numerical- Answer-Type Questions. Petitioners 1 and 2 are not amongst these 277 candidates and the son of the petitioner no. 3 is not amongst the later 212'' 6.12 The respondents have also claimed that all candidates were given opportunity to submit challenges / objections in response to initially published answer key and the said facility / opportunity was provided free of cost and that the petitioner Nos. 1 and 2 did not submit any objection whereas son of the petitioner No. 3 raised three objections in connection with initially published answer key. However, none of the said three objections were against "answer key of the numerical answer type questions". On this count it is mentioned in the affidavit that:-
16. That it may also be worth mentioning that petitioners 1 and 2 did not follow the prescribed process of submitting any challenges invited by the respondent to the initially published answer keys, free of cost or charge. As per the records, petitioners 1 and 2 have submitted "0" (zero) challenges to any of the answers in the initial answer key"
6.13 On this count the respondents have also mentioned that:-
4.11 That with reference to paragraph No. 4.11 of the petition, it is submitted that the representation / email dated 30.5.2018 from the petitioner no. 3 was not made at the official portal provided for the candidates to register their challenges to any part of the provisional answer key, i.e. due process was not followed by the petitioner in spite of the provision being made free of any charge to all candidates including the petitioner.
4. At the outset it is submitted that as pointed out in the counter affidavit the three petitioners here-in did not avail of the mechanism for submitting challenge to the answer keys, as prescribed in the information brochure and as followed by the respondent without exception. To the contrary the petitioners have directly approached this Hon'ble Court without availing or exhausting the remedy for their perceived grievances and therefore, should not be permitted to by-pass the processes laid down in the rules."
Page 18 C/SCA/8586/2018 JUDGMENT 6.14 Since the dispute is raised in connection with particular examination instruction and it is alleged that the said instruction came to be changed by means of another instruction issued subsequently (next day), it is necessary and appropriate to take into account both instructions:-
(I) The "examination instruction" originally issued on 20th May 2018 SECTION 2 (Maximum Marks: 24) This section contains EIGHT (08) questions. The answer to each question is a NUMERICAL VALUE.
For each question, enter the correct numerical value (in decimal notation, truncated / rounded-off to the second decimal place; e.g. 6.25, 7.00, -0.33, -0.30, 30.27, -127.30) using the mouse and the onscreen virtual numeric keypad in the place designated to enter the answer.
Answer to each question will be evaluated according to the following marking scheme:
Full Marks : +3 if ONLY the correct numerical value is entered as answer.
Zero Marks : 0 in all other cases."
(II) The instruction / clarification subsequently issued on 21st May 2018 Clarification regarding answers of Numerical - Answer - Type questions:
Clarification regarding answers of Numerical-Answer-Type question: For Numerical - Answer - Type questions, the numerical VALUE entered by the candidate will be evaluated. Wherever applicable, depending on the question, answers will be evaluated by checking whether the answer entered by the candidate falls within a range of two values, with or without including the upper and lower values of the range depending on the question.
Some examples:
1) If an answer is the integer 11 (eleven), all answers entered as 11,11.0 or 11.00 will be correct
2) If an answer is exactly the number 11.5 (Eleven-point-five), all answers entered as 11.5 or 11.50 will be correct
3) If an answer is the number 11.367777777...., all answers entered within a specified range, for example 11.36 to 11.37 (this range is shown to illustration purposes only) will be correct. Thus both answer 11.36 and 11.37 will be correct.
6.15 According to the respondents said clarification / instruction issued on 21.5.2018 is mere clarification and not change or modification or alteration in "examination instruction" issued on 20.5.2018.
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6.16 After submitting on record said affidavit dated
11.6.2018 the respondent filed another / further affidavit dated 22.6.2018 wherein it is averred and stated that:-
"7. That the petitioners in the present case have appended the provisional answer key along with their petition. However, the final answer key has been prepared and released after due consideration to all challenges properly received by the subject experts in the manner detailed in the counter affidavit. The manner in which the evaluation has been carried out has also been indicted in the final officially released answer key, which clearly states that it is in accordance with the instructions given prior to the examination......
8. That the JEE (Advanced) 2018 was a computer based test. Consequently, the marking is also done by using computer software, without manual intervention, and the respondent has ensured that complete accuracy is maintained while evaluating the answers as per original instruction without any exception."
6.17 It is also relevant to mention at this stage that in the said further / additional affidavit dated 22.6.2018 the respondents have again emphatically asserted and maintained that any change in evaluation system is not done or was not introduced and that the evaluation of answer has been done strictly in accordance with the instructions given to the candidates prior to the examination.
6.18 It is pertinent to mention that while asserting and maintaining the said position the respondents have made reference of interim order passed by Hon'ble Madras High Court. It is stated by the respondents that:-
"5. That it is categorically stated and that there has been no change in the evaluation system and the evaluation of answers has been done strictly in accordance with the instructions given to the candidates prior to the examination and in the question paper itself. It was verbally submitted during the hearing on 12.6.2018 that an order had been passed by the Hon'ble High Court of Madras in WP No. 13694 of 2018 on
7.6.2018, thereby restraining the respondent from carrying out the evaluation in Page 20 C/SCA/8586/2018 JUDGMENT terms of the clarification and a direction was passed requiring the respondent to "evaluate the on line examination papers based on the instructions that were available prior to the examination".........
6. That it is the specifically pleaded case of the respondent that the clarification which has been challenged by the petitioners does not change or introduce any new system of evaluation nor has there been any change in the rules after the examination, in order to ensure strict compliance with the orders passed by the Hon'ble High Court of Madras and to avoid any difficulty or complication, the evaluation has been carried out only in accordance with the instructions available prior to the examination.
8. That the JEE (Advanced) 2018 was a computer based test. Consequently, the marking is also done by using computer software, without manual intervention, and the respondent has ensured that complete accuracy is maintained while evaluating the answers as per original instruction without any exception." 6.19 From the said details it emerges that the respondents have asserted and maintained that they have complied the said interim order passed by Hon'ble Madras High Court and to ensure strict compliance of the said order the evaluation has been carried out only in accordance with the instructions which were made available / which were originally issued, prior to the examination. 6.20 The respondents have also tried to explain practical aspect and the difficulties which may arise. On this count it is mentioned that:-
"l4.That on the basis of the extended merit list, the Architecture Aptitude Test (AAT), which had already been conducted on 14.06.2018 on the basis of the original merit list (and results for which were declared on 18.06.2018), was held again on 17.06.2018 (and results for which were declared on 20.06.2018). In the said re- conducted examination held specifically for the freshly qualified candidates in the extended merit list, an additional 1170 candidates registered for examination for admission to the Architecture courses, the qualifying criteria for which is-the JEE (Advanced) 2018.
15.That on the basis of the results evaluated by the Respondent, till 1700 hrs on 18th June 2018 (first milestone in the Seat Allocation schedule for display of results of first mock seat allocation), about 100000 (One lakh) candidates (including JEE' (Main) qualified and JEE(Advanced) qualified) have already registered for the Joint Seat Allocation process and have filled more than 6900000 (Sixty-nine lakh) choices, on the basis of which they will get a course in an Institute on the basis of their rank, merit and tilled-in choices.
l6.That in the above context it is respectfully submitted that any interference in the process at this advanced stage, especially due to frivolous litigation such as the Page 21 C/SCA/8586/2018 JUDGMENT present one, from only 5 candidates across the country (including the present petitioners) out of ~1.55 lakh candidates who's results were declared for JEE (Advanced) 2018, would have far reaching consequences affecting close to 10 Lakh students who are competing, based on the results of JEE (Main) 2018 and JEE (Advanced) 2018, for approximately 39000 seats in approximately 100 technical institutions across India, including 11279 seats in 23 HTS.
17. That it is submitted with great respect that the aforesaid final answer key has been arrived at after a group of approximately subject experts have deliberated on each challenge received as a part of the due process provided for the information brochure. This is after the questions have already been independently deliberated upon by about 100 subject experts before the provisional answer key was published."
6.21 By the said additional / further affidavit dated 22.6.2018 the respondents have also emphasized that the petitioner] No. 2 and son of the petitioner No. 3 are declared successful in the examination. It is mentioned that:-
"12.That the merit list which had been announced on 10.06.2018 was extended, using the same evaluation as stated above, and an Extended-Merit-List was released by the Respondent on 14.06.2018 in terms of the directives received from the Ministry of Human Resources and Development (MHRD), Government of India, dated 13.06.2018, such that twice the number of candidates could qualify.
13. At this stage it is pertinent to mention that while Petitioner No. 3 had secured a rank of 1236 in JEE (Advanced) 2018, the-petitioner Nos. 1 and 2 had initially not qualified they JEE (Advanced) 2018, having scored only 78 and 120 respectively as against the required 126 aggregate marks. However, on the basis the aforesaid extended merit list, Petitioner No. 2 has also now qualified the JEE (Advanced) 2018, securing a rank of 12804, since the extended cut-off mark is now 90 aggregate marks."
6.22 It is also averred and stated by the respondents that:-
"18.1t is therefore respectfully submitted that (i) there is no demonstrable error in any of the questions or their answers, (ii) there is no change in the originally prescribed method of evaluation, (iii) the evaluation has been carried out fairly and objectively and in compliance with the directions passed by the Hon'ble High Court of Madras and only using the answers provided by the subject experts. It is also respectfully submitted that it has been consistently held by the Hon'ble Supreme Court of India in a catena of judgments that courts should be slow to interfere in academic matters and should not substitute their opinion in place of the opinion of experts in the field, especially in technical and specialized fields."
6.23 In furtherance of said details, facts and affidavit Mr. Shelat, learned Counsel for the respondents reiterated the preliminary objection against maintainability of the petition. He, further contended that since the petitioner no. 1, after Page 22 C/SCA/8586/2018 JUDGMENT having answered the examination, is declared unsuccessful and he could not reach even near to the cut-off marks, he is not entitled to maintain the petition and since the petitioner no. 2 and the son of petitioner no. 3 have, upon being declared successful in the examination taken and secured the admission and that therefore they lost the cause of action to prosecute the petition and now there is no justification or cause for said petitioners to maintain and prosecute the petition. He further submitted that the clarification issued by the respondents cannot be equated with change in "examination instruction". He submitted that the respondent merely issued clarification with regard to the "examination instruction" and the said clarification did not modify or alter the "examination instruction" originally issued by the respondent. In furtherance of his submission that the clarification / instruction issued on 21.5.2018 was mere clarification and not any change or alteration, he relied on the details mentioned in the reply affidavit and the illustration and submitted that the said details demonstrate and clarify that actually what was declared on 21.5.2018 was mere clarification.
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6.24 He, without prejudice to the contention that any change in any instruction is not made in any manner, contended that the petitioner no. 2, on the contrary, has derived benefit and he has accepted and availed the result (declaring him successful in the examination) and on that basis he has secured admission.
6.25 He further submitted that what is claimed to be change or alteration is actually clarification which was necessitated on account of certain doubts and confusion amongst the candidates and the respondents have, in any manner, not affected any change or alteration in the examination instruction and that therefore also, the grievance and objection by the petitioners are not justified. 6.26 He further submitted that the answer key have been settled by almost 75 experts of various subjects and after taking into account the objections received from the candidates and that therefore, the grievance by the petitioners is not justified.
6.27 In this context, Mr.Shelat, learned advocate for the respondents relied on paragraph Nos.6 to 9 of the reply affidavit. So as to clarify the reasons and circumstances for Page 24 C/SCA/8586/2018 JUDGMENT issuing the instruction on 21.5.2018, Mr. Shelat, learned counsel relied on the submissions in paragraph Nos.12 to 14 of reply affidavit. Mr. Shelat, learned Counsel relied on below mentioned decisions:-
1) Ran Vijay Singh vs. State of Uttar Pradesh, (2018) 2 SCC 357
2) AFCONS Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited (2016) 16 SCC 818.
3) Charles K. Skaria vs. Dr. G. Mathew (1980) 2 SCC 752
7. I have considered rival submissions and material available on record.
8. It is relevant and necessary to keep in focus that the affidavit of the respondents as well as specific and relevant details mentioned therein are not denied or disputed by the petitioners.
9. At the outset it would be appropriate to take note of respondent's objection against maintainability of the petition and / or against the justification to pursue and prosecute the petition.
9.1 Differently put, the issue whether the petitioners No. 1 and 2 and the son of petitioner no. 3 are justified in pursuing and prosecuting the petition when two out of the Page 25 C/SCA/8586/2018 JUDGMENT three applicants have not only accepted the result but have acted on the said result and derived benefit and secured admission whereas the petitioner no. 1 could not clear the examination and he is declared unsuccessful because he could not reach near the cut-off marks even after the respondents relaxed the cut-off marks deserves to be taken note of and considered before turning to other issue. 9.2 Of course, the respondents have opposed maintainability of the petition also on the ground that in absence of other more than one lakh applicants who appeared in the examination (but are not joined as party respondent in the petition) the relief prayed for by the petitioners cannot be granted and the petition cannot be maintained and should not be entertained.
9.3 As mentioned above, it is pertinent that any counter affidavit in response to the reply affidavits by the respondent, disputing the allegation and opposing contentions of the respondents, is not filed by the petitioners.
9.4 Entire details mentioned in the reply affidavit as well as the reply and clarification given by the respondent in Page 26 C/SCA/8586/2018 JUDGMENT response to the allegations and contentions in the petition, which include the reply and submission that the instruction issued on 21.5.2018 does not amount to alteration or change in the "examination instruction" issued on 20.5.2018 and that the instruction issued on 21.5.2018 was simple and mere clarification which was issued to address and satisfy the anxiety of the candidates and the submission that any objection against the answer key was not raised / submitted by the petitioners (objection with regard to the clarification issued on 21.5.2018) and that upon direction from the Government the limit of cut-off marks came to be relaxed as well as the submission that the petitioner no. 2 and son of petitioner no. 3 have accepted the result and secured admission and more important submission viz. that in compliance of the order by Hon'ble Madras High Court, evaluation has been undertaken on the basis of instruction issued before examination, are not denied or disputed and have remained uncontroverted. 9.5 In this view of the matter and in light of the facts emphasized by the respondents and in light of said objection it would not be unjustified to not accept the Page 27 C/SCA/8586/2018 JUDGMENT petition.
10. However, instead of rejecting the petition only on ground of said objections it would be appropriate to consider other facts viz. the statement and assertion by the respondents in para 5 and para 6 of their affidavit dated 22.6.2018 and that at this stage the base of the petition is apprehension. 10.1 In light of rival submissions the question which arise are that (a) whether the clarification (or instruction) issued by the respondents on 21.5.2018 can be termed as or does it amount to change in the instruction issued on 20.5.2018
(b) whether, on account of said clarification (or the instruction) issued on 21.5.2018 any actual prejudice is caused to the petitioners.
10.2 From the averments and submissions in present petition as well as in light of the submissions by learned advocate for the petitioners it has emerged that the dispute / controversy raised and involved in present petition is restricted to "Numerical - Answer - Type Question".
11. So far as the decisions on which learned advocate for the petitioners placed reliance are concerned this Court has Page 28 C/SCA/8586/2018 JUDGMENT considered said submissions. It is appropriate to note that so far as the decisions wherein it is held that the rules of the game cannot be changed midway or subsequently, the question which would arise in present case is as to whether the instruction / clarification issued by the respondents on 21.5.2018 amounts to and can be considered change or alteration in the examination instruction issued on 20.5.2018. If that be so, the petitioners would be justified in their objection. However, if the respondents would demonstrate and establish that the instruction issued on 21.5.2018 was mere clarification and any alternation in original instruction was not issued, then petitioners' contention would fail.
11.1 However, in light of the present cases it has emerged that any prejudice is actually not caused to the petitioner and the petition is, as of now, based on apprehension of prejudice and that therefore it is not necessary at this stage to decide as to whether the instruction issued dated 21.5.2018 tantamounts to change in original instruction or not. Therefore the said decisions, at this stage, do not carry petitioners' case further.
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11.2 In view of the fact that for reason mentioned in this order the petition is not entertained at this stage with the clarification that at subsequent stage if actually any prejudice is caused to the petitioners, present order will not stand in way of the petitioners to challenge the action which results into actual prejudice to them and in view of the fact that the petition is not dismissed, at threshold, on the ground that affected / successful candidates are not impleaded as party opponents the decisions on which the learned advocate for the petitioners placed reliance to support the submission that such notice is not necessary, are not relevant at this stage.
11.3 Similarly, in light of the fact that the respondents have, in compliance of the order passed by Hon'ble Madras High Court, conducted evaluation on the basis of original instruction the decisions relied on by the petitioners to support the submission that the answer key and / or instruction in the broacher cannot be ignored and they have force of law, doe not render assistance to the petitioners in present proceedings at this stage. When the respondents have conducted evaluation on the basis of the examination Page 30 C/SCA/8586/2018 JUDGMENT instruction originally issued before examination (i.e. without taking into account alleged change or alternation by means of instruction issued on 21.5.2018) the said submission and supporting decisions are not relevant at this stage.
12. For sake of convenience the issue as to whether impugned action has caused prejudice and whether real prejudice has already occurred and any prejudice is actually caused to the petitioners or not; may be considered first because if prejudice has not occurred and if any prejudice is already not actually caused to the petitioners then the petition cannot be maintained and the Court may not entertain such petition caused on apprehension and / or imagination and, in that event it would not be necessary to examine as to whether the instruction / clarification amounts to and can be considered change or alteration. 12.1 In this context it is pertinent to note that mere assertion that the respondents have committed change or alteration would not be sufficient to invalidate the process of examination and/or the result.
12.2 The petitioners must demonstrate and satisfy/establish, conclusively and satisfactorily, that actual Page 31 C/SCA/8586/2018 JUDGMENT prejudice is caused to them on account of the alleged change / alteration.
13. It is necessary to recall that according to petitioners there is likelihood that the instruction / clarification issued on 21.5.2008 would expand possibility of some answer being considered correct (which according to the petitioners would be, according to the "examination instruction" issued on 20.5.2018 - considered incorrect) and that as a result of such instruction / clarification issued on 21.5.2018 more number of candidates may succeed which would result into reducing the petitioners chance to get institute or branch of their choice and that therefore the said clarification issued on 21.5.2018 should be considered prejudicial.
14. In light of the facts of present case the real and relevant issue which arise for consideration is that even if the instruction issued on 21.5.2018 is considered as instruction which amounts to change or alteration in instruction issued previously i.e. on 20.5.2018 can it be said that the said instruction or clarification really resulted into and actually caused any real prejudice to the petitioners or not. As Page 32 C/SCA/8586/2018 JUDGMENT mentioned earlier mere allegation or even assertion about change in instruction would not be sufficient to invalidate the examination, answer key and final result but the petitioners must establish actual prejudice. Therefore, it would be appropriate to first consider whether any prejudice is actually caused to the petitioners on account of said instruction / clarification issued on 21.5.2008. On this count it would be appropriate to first consider the case of the petitioner No.1 14.1 On this count, it is relevant to note that the petitioner No.1 is declared unsuccessful in examination. 14.2 It has emerged that the petitioner No.1 could not reach even close to cut-off marks. The respondents have claimed that in pursuance of the direction by HRD Ministry the cut- off marks have been relaxed and even after such reduction in cut-off marks the petitioner no. 1 did not reach the minimum level. Hence he is declared unsuccessful. The respondents have averred and stated that:-
13. At this stage it is pertinent to mention that while Petitioner No. 3 had secured a rank of 1236 in JEE (Advanced) 2018, the-petitioner Nos. 1 and 2 had initially not qualified they JEE (Advanced) 2018, having scored only 78 and 120 respectively as against the required 126 aggregate marks. However, on the basis the aforesaid extended merit list, Petitioner No. 2 has also now qualified the JEE (Advanced) 14.3 Thus, having secured score of the 78, the petitioner Page 33 C/SCA/8586/2018 JUDGMENT could not reached to lowered / relaxed cut-off marks.
Meaning thereby, by any stretch of imagination it cannot be said that any prejudice is caused to petitioner No.1. The petitioner no. 1 has failed to prove that any prejudice is actually and already caused to him on account of the clarification / instruction issued on 21.5.2018. 14.4 Under the circumstances, even otherwise, the petitioner No.1 does not have any cause to insist for branch or institution of his choice.
15. Now so far as the petitioner No.2 is concerned the respondents have mentioned the petitioner No.2 had initially not reached cut-off and was not declared successful candidate, however in light of subsequent instructions issued by the Ministry of Human Resources Development to relax the limit of cut off marks the merit list came to be extended and thereby the petitioner No.2 is declared successful candidate as he entered into the limit of cut off marks however, so far as the petitioner No.1 is concerned, he still falls short of the said limit of relaxed cut off marks or extended limit of cut off marks.
15.1 So far as petitioner No.2 and son of petitioner no. 3 are Page 34 C/SCA/8586/2018 JUDGMENT concerned even the said petitioners have failed to show any real prejudice has actually occurred and real prejudice is actually caused to them.
15.2 The said two petitioners merely apprehend that there is likelihood that number of successful candidates may increase and that may, possibly affect their chance of getting breach or institute of their choice. The petitioners' apprehension has its roots in said perceived possibility but it has not yet arisen. The petitioners are, thus, prosecuting this petition only on basis of or on account of their apprehension.
16. It is necessary to note that even according to the petitioners' submission, prejudice is caused on account of the instruction which came to be issued on 21.5.2018 there is likelihood that the scope of answers being correct would expand and consequently more candidates may enter into list of successful candidates and that it would affect the chance of the candidates to secure institution of their choice or branch of their choice.
16.1 Differently put, the petitioners apprehend that on account of the instruction which came to be issued on Page 35 C/SCA/8586/2018 JUDGMENT 21.5.2018, the list of successful candidates may expand and consequently their chance of securing branch / institution of their choice may be adversely affected and may be reduced or diminished.
16.2 The petitioners have not taken out petition with any specific instance of actual prejudice caused to them or with the assertion that any of the three petitioners is actually deprived of the branch and/or institution of his choice. The petition is taken out on apprehension.
16.3 It is not in dispute that the said petitioner Nos.2 and 3 have declared their choice as regards the institution as well as branch.
16.4 It is also not in dispute that the said choice is, as of now, not rejected and the petitioners have not been allotted branch or institution other than the branch or institution of their choice.
16.5 Under the circumstances, as of now, the said petitioners do not have any cause of action against the respondents on any ground including the ground that they are deprived of the institution of their choice or branch of their choice.
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16.6 Such dispute can be raised by the petitioners as and when final decision with regard to allotment of the branch or institution is taken by the respondents and conveyed to the petitioners and on account of such decision they are assigned to different branch or institution and not to the branch or institute of their choice. In this view of the matter and for above mentioned reasons the petition does not deserve to be entertained at this stage. At this stage the petitioners do not have cause of action. In present case, the prejudice has, yet not actually occurred but it is apprehended or imagined by the petitioners. Differently put, in present case, prejudice is in the realm of apprehension of the petitioners and any prejudice is actually not caused to the petitioners.
16.7 Under the circumstances, a petition which ventilates apprehended prejudice is not required to be entertained at this stage.
16.8 When final decision is taken and the branch / institution are allotted / assigned to all the students and at that stage, if at all, the petitioners do not get their branch and/or institution of their choice, then, the petitioners may Page 37 C/SCA/8586/2018 JUDGMENT have grievance and cause of action.
17. This is one reason in light of which and on account of which the petition does not deserve to be entertained at this stage.
18. So far as the "answer key" and petitioners' grievance against same is concerned, it is necessary to note that the petitioners have, as explained and clarified by the respondents in paragraph No. 7 of the reply affidavit dated 22.6.2018, framed the petition (and their challenge includes the challenge against answer key) on the basis of "provisional answer key".
18.1 It is necessary to note that after notifying provisional answer key the respondents had, as per procedure, invited challenges / objections. The said provisional answer key came to be finalized after receiving and after considering such challenges / objections and the finalized answer key came to be notified on 29.5.2008. the said reply by respondents is not disputed by the petitioners. 18.2 On this count second relevant aspect also deserves to be taken into account viz. the process of finalization of Page 38 C/SCA/8586/2018 JUDGMENT answer key. In this context it is appropriate to take into account the details mentioned by the respondents in paragraph No. 14 of the reply affidavit dated 11.6.2018 as well as the details mentioned in paragraph No. 7 and 8 in the affidavit dated 22.6.2018.
18.3 3rd relevant aspect with reference to the answer key which deserves to be taken into account is that even according to the petitioners final answer key was notified on 29.5.2018 and the said answer key contains "Range of correct answers" which is not in consonance with the "examination instruction" issued on 20.5.2018. 18.4 However it cannot be overlooked that in the affidavit dated 22.6.2018 the respondents have by assertions and declaration in paragraph Nos. 5 and 6 clarified and asserted that evaluation has been carried out in accordance with instruction issued prior to the examination i.e. in accordance with instruction issued on 20.5.2018. 18.5 In counter to the respondents' reply affidavit the petitioners have not filed any affidavit and the said assertion by the respondents is not disputed by the petitioners and Page 39 C/SCA/8586/2018 JUDGMENT the said assertion has remained uncontroverted. Thus, when evaluation is undertaken in compliance of Hon'ble High Court's order and on the basis of the instruction issued prior to the examination then even otherwise the said grievance plats into insignificance.
18.6 Under the circumstances, the petitioners have failed to demonstrate any prejudice with regard to or on account of answer key.
19. As regards the allegation with regard to the instruction issued on 21.5.2018 there is second perspective and a relevant fact which should be considered. On this count the assertions by the respondents in paragraph Nos.5 and 6 of the affidavit dated 22.6.2018 are relevant. The assertions and the statement by the respondents in said para Nos. 5 and 6 of the affidavit dated 22.6.2018 is the second and more important reason for not entertaining this petition at this stage. In the said paragraphs, the respondents have averred and stated that:-
"5. That it is categorically stated that there has been no change in the evaluation system and the evaluation of answers has been done strictly in accordance with the instructions given to the candidates prior to the examination and in the question paper itself. It was verbally submitted during the hearing on 12.06.2018 that an order had been passed by the Hon'ble High Court of Madras in WP No.13694 of 2018 on 07.06.2018, thereby restraining the Respondent from carrying out the evaluation in terms of the clarification and a direction was passed requiring the Respondent o Page 40 C/SCA/8586/2018 JUDGMENT "evaluate the online examination papers based on the instructions that were available prior to the examination...
6. That it is the specifically pleaded case of the Respondent that the clarification which has been challenged by the petitioners does not change or introduce any new system of evaluation nor has there been any change in the rules after the examination, in order to ensure strict compliance with the orders passed by the Hon'ble High Court of Madras and to avoid any difficulty or complication, the evaluation has been carried out only in accordance with the instructions available prior to the examination."(emphasis supplied) 19.1 In this context it is pertinent to recall and note that the assertions and the statements made by the respondents in the affidavit dated 22.6.2018, more particularly the averments in above quoted paragraphs of the affidavit dated 22.6.2018 have not been disputed and controverted by the petitioners. Any affidavit in response or against the details mentioned in the said two affidavits have not been filed by the petitioners. The said assertions and statement by the respondents in the said two affidavits more particularly in paras 5 and 6 of the affidavit, have remained uncontroverted.
19.2 From the said submission and assertions, it emerges and becomes clear that in light of and in compliance of order passed by Hon'ble Madras High Court the process of evaluation has been undertaken by the respondent on the basis of the instruction originally issued by the respondents (i.e. the instruction which were available prior to the Page 41 C/SCA/8586/2018 JUDGMENT examination) and that therefore, the very base of the grievance raised by the petitioners does not survive.
19.3 It is necessary to note that learned advocate for the petitioners tried to place reliance on the answer key notified by the respondents on 29.5.2018 (at page 287) 19.4 However, even the said submission would not carry the petitioners' grievance further and would not help the petitioners because the said answer key were, undisputedly, prepared and notified before 7.6.2018 i.e. before Hon'ble Madras High Court passed interim order in the writ petition No.13694 of 2018 restraining the respondents from carrying out the evaluation in terms of the clarification i.e. clarification issued on 21.5.2018 whereas the respondents carried out the evaluation in compliance of and in view of the order by Hon'ble High Court i.e. on the basis of the instruction which were available prior to examination.
19.5 The respondents have categorically and empathetically averred and asserted that the evaluation is done in accordance with and in strict compliance of the direction issued by Hon'ble Madras High Court. It is pertinent that the petitioners have not disputed or denied or controverted Page 42 C/SCA/8586/2018 JUDGMENT said assertion by the respondent. In this view of the matter not only the grievance and the contentions raised by the petitioners - essentially on the basis of instruction which came to be issued on 21.5.2018 - do not survive but even the apprehension cannot survive inasmuch as in light of said uncontroverted and undisputed assertion there is no basis and justification even for apprehension.
19.6 The apprehension of the petitioners arise from what the petitioners consider a likelihood and a possibility but it is not an existing consequence which has already visited-
affected the petitioners and it is not the case of the petitioners and they have failed to establish that prejudice has already and actually caused to them but they apprehend that wrong answers may be treated and considered correct and thereby more candidates may be considered successful and thereupon they may not get branch and / or institute of their choice.
19.7 Mere change or alteration in any instruction would not, in all cases, give rise to dispute or cause of action, because an action in law would lie or cause of action would arise only if actual prejudice is caused or the prejudice has Page 43 C/SCA/8586/2018 JUDGMENT actually occurred on account of such subsequent instruction.
19.8 From the said averments in para 5 and 6 of the affidavit dated 22.6.2018 it is borne out that though the respondents issued above quoted instruction on 21.5.2018, in view of the order and direction passed by Hon'ble Madras High Court on 7.1.2018, the respondents evaluated on-line examination papers based on the instruction that were issued prior to the examination and it has also emerged that the respondents have not examined/ evaluated the examination papers/answers by the candidates on the basis of instruction issued on 21.5.2018 (i.e. after the examination)but in compliance of the order issued by Hon'ble High Court.
20. Under the circumstances, the very base on which the petition and allegation by the petitioners are based, is lost.
20.1 The very base or the contention by the petitioners or allegation by the petitioners is the instruction issued on 21.5.2018 inasmuch as the claim that the said instruction which came to be issued on 21.5.2018 amounts to change in the "examination instruction" issued on 20.5.2018 and Page 44 C/SCA/8586/2018 JUDGMENT therefore the said instruction / clarification dated 21.5.2018 is void and that the said instruction issued on 21.5.2018 cannot be taken into account and the examination / answer papers should be examined and evaluated on the basis of the instruction originally issued on 20.5.1998. The petitioners have expressly and specifically prayed that the respondents be directed to evaluate the examination papers / answer papers in consonance with the instruction contained in question paper i.e. instruction issued on 20.5.2018.
20.2 In view of specific statement and declaration expressly made by the respondents in paragraph Nos.5 and 6 of the affidavit, it becomes clear that the respondents were placed under direction by the order dated 7.6.2018 passed by Hon'ble Madras High Court to evaluate the examination papers based on the instruction issued prior to the examination i.e. as per the instruction issued on 20.5.2018 and the respondents have declared that they have evaluated examination and evaluated the papers strictly in consonance with the said direction by Hon'ble High Court of Madras. The respondents have, in their affidavit, specifically Page 45 C/SCA/8586/2018 JUDGMENT averred and stated that:-
"6. ...the clarification which has been challenged by the petitioners does not change or introduce any new system or evaluation nor has here been any change in the rules after the examination, in order to ensure strict compliance with the orders passed by the Hon'ble High Court of Madras and to avoid any difficulty or complication, the evaluation has been carried out only in accordance with the instructions available prior to the examination."
20.3 The said specific assertion by the respondents answers and addresses the anxiety and objection of the petitioners and put at rest the allegation by the petitioners. 20.4 From the said assertion, it becomes clear that the answer papers have been evaluated on the basis of and in light of the instruction issued prior to the examination. 20.5 Thus, the very base on which the petition is taken out is lost and it did not survive in light of the order dated 7.6.2018 passed by Hon'ble Madras High Court in W.P. No.13694 of 2018, more particularly in light of the fact that the respondents have evaluated the answer papers strictly in accordance with and in compliance of the said direction. Thus, the very base and foundation for the petition does not survive.
20.6 As mentioned above, the said assertion and reply by the respondents is not disputed by the petitioners. Any counter is not filed.
20.7 Further, as of now any prejudice has actually not Page 46 C/SCA/8586/2018 JUDGMENT occurred and the petitioners have failed to show that any real prejudice is already cause to them.
20.8 In this view of the matter, any ground or cause to entertain the petition and/or to grant relief as prayed for by the petitioners do not survive.
21. In this view of the matter, the petition is disposed of at this stage with clarification that if at all, after final decision with regard to the allotment/assignment of the branch and/or institution, if the petitioners have any grievance with regard to said decision by the respondent authority, then, the disposal of present petition will not stand in way of the petitioners if they initiate any proceedings at that stage.
Present petition stands disposed of. Orders
accordingly. Rule stands discharged.
Sd/-
(K.M.THAKER, J)
SURESH SOLANKI
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