Delhi High Court - Orders
Abhineet Mishra vs National Testing Agency & Ors on 7 October, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~90
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13409/2022
ABHINEET MISHRA ..... Petitioner
Through: Mr. Kamlesh Kumar Mishra, Mr.
Anand Kumar Dwivedi, Mr.
Shubham Chauhan, Mr. Raj Mani
Mishra and Mr. Bibhuti Bhushan
Mishra, Advocates.
versus
NATIONAL TESTING AGENCY & ORS. ..... Respondents
Through: Mr. Sanjay Khanna, Standing
Counsel with Ms. Pragya Bhushan,
Mr. Karandeep Singh and Mr.
Tarandeep Singh, Advocates for R-1.
Mr. Ajay Jain, Senior Panel Counsel
with Mr. Keshav Ahuja, Advocate for
R-2 & 3.
Ms. Seema Singh, G.P. for UOI.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 07.10.2022 W.P.(C) 13409/2022 & CM APPL. 43592/2022 (seeking stay of the round- 1 of UG Counselling 2022 scheduled to start from 11th October 2022)
1. Having regard to nature of prayer made in afore-noted application, the Court has, with consent of counsel for parties, considered it appropriate to hear the main petition itself for final disposal.
Signature Not Verified W.P.(C) 13409/2022 Page 1 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:102. Mr. Sanjay Khanna, Standing Counsel for Respondent No.1-National Testing Agency ["NTA"] has emailed a copy of counter affidavit to Ld. Court Master and copy whereof has been also been furnished to counsel for Petitioner. The same is taken on record. Additionally, the same shall also be e-filed with the Registry.
3. Petitioner, who appeared for National Eligibility-cum-Entrance Test (Undergraduate) ["NEET (UG) 2022"] on 17th July 2022, seeks setting aside of final answer key published on 7th/8th September 2022 by NTA for "SET:T5" [Annexure 1] in respect of two questions viz. Question No. 26 (Physics) and Question No. 118 (Botany) under Section A (Code T5), and consequent direction for re-evaluation/ revision of his result qua above questions.
4. Mr. Kamlesh Kumar Mishra, counsel for Petitioner, makes following submissions:
4.1. Petitioner was provided question paper (Code T5) in NEET (UG) 2022. He attempted all questions including afore-noted questions in dispute.
Thereafter, Petitioner checked answers given by him against provisional answer key published by NTA. He found a mistake qua afore-noted questions and raised a challenge in respect thereof, which was not accepted by NTA and final answer key was published without changes in respect of afore-noted questions.
4.2. As per declared result, Petitioner has obtained 700 marks out of 720 with an All India Rank of 55. Despite having such high rank, Petitioner would still not be able to make it to certain premier institutions. He is a meritorious student and for improperly framed Question No. 26 (Physics) and incorrect answer options in respect of Question No. 118 (Botany), he is Signature Not Verified W.P.(C) 13409/2022 Page 2 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10 entitled to award of additional marks, in terms of Clause 2(a)(vi) [Annexure 3, at page 35] of "Important Instructions" dated 14th July, 2022 issued by NTA [hereinafter "NTA's NEET (UG) 2022 Instructions"] which stipulates that that if no option is correct or if the question is found to be wrong, all candidates would be awarded four marks (+4) irrespective of the fact whether the question has been attempted or not.
4.3. On merits, it is argued that as per opinions of professors in subjects viz. Physics and Botany, who are experts in the field, Question No. 26 (Physics) has been wrongly framed and all options in respect of Question No. 118 (Botany) are incorrect.
4.4 Reliance is also placed on answer keys of NEET UG 2022 (Code T-5) as published by Aakash Coaching Centre-BYJU'S and ALLEN Coaching Centre [Annexure-8] which are premier coaching institutes comprising of faculty of experts. They have opined that candidates should be given bonus marks in respect of aforenoted questions. Further, reference to NCERT textbook would also indicate that final answer key published by NTA is incorrect and cannot be the basis for evaluation.
4.5. Per the above, answer key is demonstrably, wrong being contrary to NCERT textbook as well as the opinion of experts in the field. 4.6. NTA is expected to prepare final answer key with a sense of responsibility and not in a casual manner as has been done in the present case. Moreover, despite Petitioner mounting a challenge to final answer key, NTA has not carefully examined grounds urged by Petitioner. 4.7. The directions given by this Court on 15th September, 2022 have not been complied with, as NTA has failed to share any deliberation by concerned body of experts on issues raised by Petitioner. Even in counter Signature Not Verified W.P.(C) 13409/2022 Page 3 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10 affidavit, no reasoning is forthcoming for challenge pertaining to Question No. 26 (Physics).
5. Per contra, Mr. Khanna, submits as follows:
5.1. The writ petition is wholly misconceived and is not maintainable. 5.2. Final answer keys are decided by subject experts after challenges are received from candidates. The challenge raised by Petitioner was examined by subject experts, but not found to be meritorious.
5.3. The Court's jurisdiction in such matters where challenge is made to evaluation of an examination on ground of answer keys being erroneous, is limited, in light of the jurisprudence expounded by this Court in several judgments including the latest one being by a Coordinate Bench of this Court in Freya Kothari v. Union of India & Ors..1 5.4. Question No. 118 (Botany) was also subject matter of the afore-noted petition. Despite the challenge raised, the Court did not find the answer key to be incorrect.
6. The Court has considered afore-noted contentions of parties. The scope of judicial review in matters relating to challenge of evaluation of examinations on the ground of erroneous answer key is well settled. The Supreme Court in Kanpur University & Ors. v. Samir Gupta & Ors.,2 has held that answer key should be assumed to be correct unless it is proved to be wrong and it should not be held to be wrong by an influential process of reasoning or process of rationalisation. The answer key must be clearly demonstrated to be wrong and the error must be such as no reasonable body of men well versed in the particular subject would regard it as correct.1
W.P.(C) 13668/2022.
2(1983) 4 SCC 309.
Signature Not Verified W.P.(C) 13409/2022 Page 4 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10Therefore, unless there is no possibility of doubt that the answer key is incorrect, the Court would refrain from interfering with answer key. Keeping the above in mind, we now proceed to analyse the questions in dispute, tabulated hereinbelow:
Question Answer as per Petitioner's claim
Provisional
and Final
Answer Key
Question No. 26 (Physics) of Option (3) None of the above.
Section A, Code T5: 3/2 v
26. When two monochromatic lights Question is not properly
of frequency, v and v/2 are incident framed and the language
on a photoelectric metal, their used is wrong.
stopping potential becomes 2 Vs and
Vs respectively. The threshold
frequency for this metal is
(1) 3v
(2) 2/3 V
(3) 3/2 v
(4) 2v
Question No. 118 (Botany) of Option (1) None of the above.
Section A, Code T5: (b), (c), (d) and
118. Read the following statements (e) Only All statements - (a), (b),
about the vascular bundles: (c), (d) and (e) are
(a) In roots, xylem and phloem in a correct.
vascular bundle are arranged in an
alternate manner along the different
radii.
(b) Conjoint closed vascular bundles
do not possess Cambium
(c) In open vascular bundles,
cambium 1s present in between
xylem and phloem
(d) The vascular bundles of
dicotyledonous stem possess endarch
protoxylem
(e) In monocotyledonous root,
usually there are more than six
xylem bundles present Choose the
Signature Not Verified
W.P.(C) 13409/2022 Page 5 of 9
Digitally Signed
By:SAPNA SETHI
Signing Date:08.10.2022
17:27:10
correct answer from the options
given below:
(1) (b), (c), (d) and (e) Only
(2) (a), (b), (c) and (d) Only
(3) (a), (c), (d) and (e) Only
(4) (a), (b) and (d) Only
7. According to Petitioner, language in Question No. 26 (Physics) is wrong and thus, the question is improperly framed. Petitioner has annexed documents along with CM APPL. 43592/2022, which are communications exchanged with professors and other experts regarding the questions in controversy. One of the Professors, who works with Department of Physical Science, Indian Institute of Science Education and Research (IISER), Kolkata, has responded to query raised by Petitioner regarding Question No. 26 (Physics), as follows:
"Although calculation wise we are getting the answer as option (c), it is not physically meaningful. The threshold frequency comes out to be higher than the frequencies at which there were photoelectron emissions.
We are getting an unphysical answer because the conditions given are not physically consistent: As the frequency is lowered, the stopping potential cannot be higher."
[Emphasis Supplied]
8. Likewise, another scientist/author made the following observations for Question No. 26 (Physics):
"Your observation is correct. When the frequency of incident light is decreased from n to n/2, the kinetic energy of ejected photoelectron will decrease. Hence, the stopping potential shall decrease. The algebra will give you n0=3 n/2, but this is not physically correct. Please let me know if the argument is not convincing."
[Emphasis Supplied]
9. Apart from the above, Petitioner has also placed on record, opinions expressed by other professors on similar lines. Even as per professors/experts relied upon by Petitioner, it cannot be concluded with Signature Not Verified W.P.(C) 13409/2022 Page 6 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10 absolute certainty that there is an ex facie or manifest error in answer key. The conclusion drawn by said professors/experts highlights an enigma or paradox, which is not unheard of in Physics and does not render said question demonstrably wrong. On this aspect it must also be noted that, in the counter affidavit, NTA has indicated that Petitioner's challenge to answer key was examined by body of experts, who opined that, "as per statement of the question and following the mathematical expression, the most appropriate option is (3/2 v)" - which is the third option. Therefore, in absence of any manifest error demonstrated from the material and opinions placed on record, the answer key cannot be held to be palpably wrong.
10. As regards Question No. 118 (Botany), Petitioner's contention is that since all statements contained in said question were correct, none of the options can be considered as correct. On this issue, court firstly finds merit in the contention of Mr. Khanna that this very question, was unsuccessfully challenged in somewhat similar circumstances in Freya Kothari (supra) and should not be re-examined. In the said case, Petitioner therein had relied upon an NCERT textbook to assail the final answer key, however, the challenge was rejected. The Court held that answers to tricky questions cannot be argued in a straitjacket formula; in certain cases, one or two answers can appear to be correct, but the candidate has to choose the answer which is the most appropriate, as agreed by experts. The Court also opined that per NCERT textbook relied upon, the answers were debatable and thus, beyond scope of judicial review.
11. Nonetheless, Petitioner has tried to persuade this court by placing reliance on opinion of an Assistant Professor at Department of Horticulture PGCA, RPCAU, Pusa who observed as under:
Signature Not Verified W.P.(C) 13409/2022 Page 7 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10"As all of the statements are correct and right answer is not given so you deduct this question from all. Mark after deducting this question."
12. Further reliance is placed on observation of a Professor at Department of Botany, Dyal Singh College, University of Delhi, who also observed that all statements contained in Question No. 118 (Botany) are correct.
13. Per contra, NTA has justified retaining the provisional answer key for said question and rejecting the Petitioner's challenge on basis of their own subject experts who opined as under:
"In roots, xylem and phloem in a vascular bundle are arranged in an alternate manner along the different radii" is a general statement. The root can be Pteridophyte, Gymnospers, or Angiosperm plant. Further, the root can also be primary/ secondary modified root. Therefore, as the statement (a) did not specify which type of root, the most appropriate answer is Option No. 1 which covers the statement (b), (c), (d), and (e), Only as correct."
[Emphasis Supplied]
14. As per the Multiple-Choice Question format of examination in the present case and as per reasoning provided in above extract, candidates were to choose the correct or most appropriate answer, and option one would be most appropriate answer for Question No. 118 (Botany). In fact, Clause 2(a)(i) of NTA's NEET (UG) 2022 Instructions stipulates that four marks (+4) will be awarded for correct answer or most appropriate answer. That apart, since two different divergent opinions are shown, the Court cannot assume the one cited by Petitioner to be correct and reject the other. At this juncture, views expressed by Division bench of this Court in a recent judgment in National Board of Examination v. Association of MD Physicians,3 need to be emphasized; where it has been observed that it would not be prudent for a Court to act like an expert in a subject alien to it when body of experts has arrived to a contrary stand. Indeed, this Court does Signature Not Verified W.P.(C) 13409/2022 Page 8 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10 not have expertise in the subject and cannot substitute expert's opinion with its own. This is beyond the permissible scope of judicial review.
15. NTA subject experts have considered and rejected the challenges to final answer key along with numerous others, reappraisal is not permissible as no manifest and palpable error in question/ answer keys has been demonstrated. Thus, no ground is made out for Court's intervention.
16. Dismissed, along with pending application(s).
17. The next date of hearing fixed i.e., 11th October, 2022 stands cancelled.
SANJEEV NARULA, J OCTOBER 7, 2022 as 3 LPA 225/2021.
Signature Not Verified W.P.(C) 13409/2022 Page 9 of 9 Digitally Signed By:SAPNA SETHI Signing Date:08.10.2022 17:27:10