Kerala High Court
Mamatha Sudheendran vs National Testing Agency on 19 November, 2019
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA,
1941
WP(C).No.20982 OF 2019(W)
PETITIONERS:
1 MAMATHA SUDHEENDRAN
AGED 28 YEARS
D/O. K.Y. SUDHEENDRAN, KUNNUTHARAYIL,
SANATHANAPURAM P.O., KALARCODE, ALAPPUZHA,
PIN-688 003.
2 SARATH K.S.
AGED 30 YEARS
S/O. MR. SASIDHARAN K, SARATH BHAVAN,
VILAKKUPARA P.O., ELAVARAMKUZHY, KOLLAM-691
312
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENTS:
1 NATIONAL TESTING AGENCY,
REPRESENTED BY CHAIRMAN (SECRETARY), C-20
1A/8, SECTOR 62, IITK OUTREACH CENTRE, NOIDA-
201 309.
2 UNIVERSITY GRANTS COMMISSION-NATIONAL
ELIGIBILITY TEST,REPRESENTED BY SECRETARY,
BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002.
R1 BY ADV. SRI.NIRMAL S, SC, NATIONAL TESTING
AGENCY
R2 BY SRI.S.KRISHNAMOORTHY, CGC
WPC No.20982 of 2019 2
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.20982 OF 2019(W)
3
P.B.SURESH KUMAR, J.
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W.P.(C) No.20982 of 2019
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Dated this the 19th day of November, 2019
JUDGMENT
This is a matter relating to the qualification of the petitioners in the National Eligibility Test (Test) held during June 2019.
2. The petitioners are post graduates in History. They also possess M.Phil. Both petitioners appeared for the Test for acquiring qualification for appointment as Assistant Professor and Junior Research Fellow. Before the publication of the results of the Test, when the answer key of the Test was published by the first respondent, the petitioners challenged the correctness of the answers in respect of questions bearing numbers ID 64635010128 and ID 64635010156. The challenge made by the petitioners was not accepted. The first petitioner, a candidate falling under the unreserved category has secured 54% marks and the WP(C).No.20982 OF 2019(W) 4 second petitioner, a candidate falling under one of the reserved category has secured 57.33% marks. The cut off marks for qualification for the lower post of Assistant Professor for candidates falling under unreserved category were 54.67% marks. The first petitioner did not therefore qualify the Test. The cut off marks for qualification for Assistant Professor and Junior Research Fellow for candidates falling under reserved category were 50% and 58% respectively. Though the second petitioner has qualified for the post of Assistant Professor, he has not qualified for Junior Research Fellow.
3. The case set out by the petitioners in the writ petition is that the challenge raised by them as to the correctness of the answer keys ought to have been accepted by the respondents and if so, the first petitioner would have been qualified for the post of Assistant Professor and the second petitioner would have been qualified for Junior Research Fellow. The petitioners, therefore, seek directions for re-computation of the marks secured by them in the Test on that basis.
WP(C).No.20982 OF 2019(W) 5
4. In terms of the information bulletin published by the first respondent for the Test, the challenge against the answer keys should have been raised within a time frame, and it is seen that the petitioners have challenged the correctness of only the answer key in respect of question ID 64635010128 within the time frame. There is no dispute to the fact that if one atleast of the questions is deleted from the Test, the first petitioner would have been qualified for Assistant Professor and the second petitioner would have been qualified for Junior Research Fellow. As such, the short point arises for consideration is as to whether the challenge made by the petitioners as regards the correctness of the answer key in respect of the said question is sustainable.
5. The principles of law on the point have been succinctly stated by a three judge bench of the Apex Court in Kanpur University, and others v. Samir Gupta and others, AIR 1983 SC 1230. Paragraphs 16 and 17 of the said decision read thus:
"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 WP(C).No.20982 OF 2019(W) 6 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 rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U. P. Those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.
17.Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U. P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong."
It is seen that the said judgment holds the field even now. The pointed question, therefore, is as to whether the answer key to question ID 64635010128 has been demonstrated to be palpably wrong, that is to say, no reasonable body of men well versed in the subject would regard the same as correct. WP(C).No.20982 OF 2019(W) 7
6. The question ID 64635010128 and the answer options given in the question paper read thus:
In 1579, 'Mahazar' was drafted by which of the following scholars?
Ans: Options given in the Question Paper
1) Abul Fazl and Sheikh Mubarak
2) Sheikh Mubarak and Abdun Nabi
3) Abdun Nabi and Badauni
4) Sheikh Mubarak and Faizi According to the petitioners, Mahazar is the document that made Emperor Akbar the sole judge of political and religious matters during his reign and the same was drafted singly by Sheikh Mubarak, a scholar who lived during the period of Akbar. The answer key for the question published by the first respondent provided that the same was drafted by Sheikh Mubarak along with his son Abul Fazl. The authorities cited by the petitioners to demonstrate that the answer key is palpably wrong, and the relevant passages therein, are extracted hereunder:
(i)`Muntakhab-Ut-Tawarikh' written by Al-Badaoni during Akbar's reign. The relevant passage from the pages of WP(C).No.20982 OF 2019(W) 8 the book produced as Ext.P3 in the writ petition reads thus:
"The draft of this document, when presented to the Emperor, was in the handwriting of Shaikh Mubarak. The others had signed it against their will, but the Shaikh had added at the bottom that he most willingly signed his name; for this was a matter to which for several years he had been anxiously looking forward."
(ii)`Akbar the Great Mogul, 1542-1605' , the biography of Akbar written by Irish born historian Vincent A. Smith. The relevant passage from the pages of the book produced as Ext.P4 in the writ petition reads thus:
"Ultimately, at the beginning of September 1579, Shaikh Mubarak produced a formal document in his own handwriting, drafted in such a way as to settle that the emperor must be accepted as the supreme arbiter in all causes, whether ecclesiastical or civil."
(iii)`AKBAR' written by M.Mujeeb and published by NCERT. The relevant passage from the pages of the book produced as Ext.P5 in the writ petition reads thus:
"Then a Manifesto was drafted by Shaikh Mubarak on behalf of the ulama in which Akbar was declared to have the right (1) to settle disputes among the ulama by deciding which of two or more views placed before him was correct and (2) to issue a new command, if he thought it would benefit the people, provided that his command was not in conflict with an explicit injunction of the holy Quran."
(iv)The article written by S.A.A.Rizvi titled `Akbar and WP(C).No.20982 OF 2019(W) 9 His Age' which was presented in the International Seminar in the Indian Council for Historical Research. The relevant passage from the pages of the article produced as Ext.P6 in the writ petition reads thus:
"It was in the midst of this crisis that Akbar sought the help of Shaikh Mubarak, who drafted a document in the form of a mahzar (any document attested by witnesses) which the ulama could not oppose and had to sign, although, according to Mulla Badauni, against their will."
(v)`The Religious Policy of the Mughal Emperors' written by Sri Ram Sharma. The relevant passage from the pages of the book produced as Ext.P7 in the writ petition reads thus:
"This declaration was drawn up by Mubarak but was signed by Makhdum-ul-Mulk; 'Abdun Nabi, the sadr-us- sadur; Sadr Jahan, the Grand Mufti of the empire; Jalal-ud- Din, the chief qazi; Mubarak, 'the deepest writer of the age', and Ghazi Khan, 'unrivalled in various sciences."
(vi)`The Cambridge History of India' Vol IV edited by Sir Richard Burn. The relevant passage from the pages of the book produced as Ext.P8 in the writ petition reads thus:
"But a text of the Koran and a traditional saying of Muhammad place the authority of the lawful and just ruler above that of divines and jurists, and the leading ecclesiastics of the court were so discredited by their dissensions, and by their unseemly wrangles in debates WP(C).No.20982 OF 2019(W) 10 arranged by Shaikh Mubarak and his two sons in the "Hall of Worship", that their claim to religious leadership could be challenged without difficulty, and Shaikh Mubarak avenged himself on his former persecutors by preparing the famous Infallibility Decree."
(vii)`Historians and Historiography During the Reign of Akbar' by Harbans Mukhia. The relevant passage from the pages of the book produced as Ext.P9 in the writ petition reads thus:
"Thus when the chief Ulema and the Mashaikh had attested the Mahzar, the final draft of which had been prepared by Shaikh Mubarak, and when the leaders of the Ulema had been exiled, to which Abul Fazl had, perhaps, made no small contribution, and when Akbar had read the khutba, in the composition of which Faizi had a significant hand, the learned father and his sons had done their first job."
The question being as to who drafted the document, without the aid of any inferential process or process of rationalisation, it can be seen from the passages of the authorities extracted above clearly and unambiguously that the draft of the document was written by Sheikh Mubarak in his own handwriting. In the statement filed by the first respondent in the matter, they have no case that the authorities furnished by the petitioners are not authorities WP(C).No.20982 OF 2019(W) 11 governing the field. The first respondent has also not made available any authority which casts a semblance of doubt as to the correctness of the contents of the authorities produced by the petitioners. I have, therefore, no hesitation to hold that the first respondent ought to have accepted the challenge made by the petitioners to the question aforesaid and deleted the same from the Test.
7. The learned counsel for the first respondent, placing reliance on Ext.P9 book produced by the petitioners, contended that though the final draft of the document was prepared by Sheikh Mubarak, his son Abul Fazl also has contributed for the preparation and therefore, the answer key published by the first respondent is correct. According to the learned counsel, in the light of Ext.P9 book, one would not be in a position to come to the answer suggested by the petitioners, without an inferential process and therefore, the court is bound to accept the answer key of the first respondent as correct. I do not agree. The question is not as to the persons who have contributed to the preparation of the document, but as to who drafted the document. Even WP(C).No.20982 OF 2019(W) 12 Ext.P9 is categoric that the document was drafted by Sheikh Mubarak.
8. The learned counsel for the first respondent, placing reliance on the decisions of the Apex Court in Ran Vijay Singh and Ors. v. State of U. P. and Ors [AIR 2018 SC 52] and Uttar Pradesh Public Service Commission through its Chairman and Another v. Rahul Singh and another [(2018) 7 SCC 254], submitted that the courts shall not, under any circumstances, examine the correctness of the answer keys prepared by examining authorities, as it has no expertise in academic matters. The decision of the Apex Court in Ran Vijay Singh was one rendered after considering the decision of the three judge bench of the Apex Court in Samir Gupta. As such, the two decisions cited by the learned counsel for the first respondent cannot be understood as laying down a proposition contrary to the principle laid down in Samir Gupta that if the matter is beyond the realm of doubt, it would be unfair to penalise the student for not giving an answer in accordance with the answer key which is WP(C).No.20982 OF 2019(W) 13 demonstrated to be wrong.
In the result, the writ petition is allowed and the first respondent is directed to revise the marks of the petitioners in the light of the findings made in the writ petition.
Sd/-
P.B.SURESH KUMAR
Mn JUDGE
WP(C).No.20982 OF 2019(W)
14
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ADMIT CARD OF THE
IST PETITIONER ISSUED BY THE NATIONAL TESTING AGENCY.
EXHIBIT P2 A TRUE COPY OF THE ADMIT CARD ISSUED TO THE 2ND PETITIONER BY THE NATIONAL TESTING AGENCY.
EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGES OF MUNTAKHAB-UT-TAWARIKH BY AL-BADAONI. EXHIBIT P4 THE RELEVANT PAGE OF THE BOOK 'AKBAR THE GREAT MOGUL' BY VINCENT A. SMITH. EXHIBIT P5 A TRUE COPY OF THE RELEVANT PAGE OF 'AKBAR' BY M. MUJEEB.
EXHIBIT P6 A TRUE COPY OF THE RELEVANT PAGES OF THE 'AKBAR AND HIS AGE' PUBLISHED BY NORTHERN BOOK CENTRE, NEW DELHI.
EXHIBIT P7 A TRUE COPY OF THE RELEVANT PAGES OF THE BOOK WITH HIGHLIGHTS 'THE RELIGIOUS POLICY OF THE MUGHAL EMPERORS'.
EXHIBIT P8 A TRUE COPY OF THE RELEVANT PAGES OF 'THE CAMBRIDGE HISTORY OF INDIA' EDITED BY RICHARD BURN.
EXHIBIT P9 A TRUE COPY OF THE RELEVANT PAGES OF 'HISTORIANS AND HISTORIOGRAPHY DURING THE REIGN OF AKBAR' BY HARBANS KUKHIA.
EXHIBIT P10 A TRUE COPY OF THE RELEVANT PAGES OF TEH BOOK, 'THE FRENCHI IN INDIA' BY S.P. SEN WITH RELEVANT PORTIONS HIGHLIGHTED.
EXHIBIT P11 A TRUE COPY OF THE RELEVANT PAGES OF WP(C).No.20982 OF 2019(W) 15 'HISTORY OF BRITISH INDIA' BY P.E.ROBERTS WITH RELEVANT PORTIONS HIGHLIGHTED.
EXHIBIT P12 A TRUE COPY OF THE RELEVANT PAGESOF THE BOOK 'HISTORICAL GEOGRAPHY OF EUROPE' WITH PORTIONS HIGHLIGHTED. EXHIBIT P13 A TRUE COPY OF THE RELEVANT PAGES OF THE 'HISTORY OF THE FRENCH IN INDIA' WRITTEN BY MAJOR G.B.MALLESON.
EXHIBIT P14 THE RELEVANT PAGES OF THE BOOK 'AN ADVANCED HISTORY OF INDIA' BY R.C.MAJUMDAR.
EXHIBIT P15 A TRUE COPY OF THE FINAL ANSWER KEY PUBLISHED ON 12.7.2019 BY THE NATIONAL TESTING AGENCY.
EXHIBIT P16 A TRUE COPY OF THE RESULT SHEET OF THE IST PETITIONER PUBLISHED BY THE NTA.
EXHIBIT P17 A TRUE COPY OF THE RESULT SHEET OF THE 2ND PETITIONER PUBLISHED BY THE NTA.
EXHIBIT P18 A TRUE COPY OF THE ONLINE RECEIPT SHOWING REMITTANCE OF FEES 1ST PETITIONER.
EXHIBIT P19 A TRUE COPY OF THE ONLINE RECEIPT SHOWING REMITTANCE OF FEES BY THE 2ND PETITIONER.
//TRUE COPY// PA TO JUDGE