Orissa High Court
Miss Uma Pattnaik And Ors. vs Convenor, M.B.B.S./B.D.S. Selection ... on 10 May, 1993
Equivalent citations: AIR1994ORI117, AIR 1994 ORISSA 117
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT Pasayat, J.
1. Our operations have become successful but the patients have died, allege the petitioners in this batch of writ applications. They appeared at the annual entrance examination for selection of candidates for admission to MBBS/BDS courses pertaining to the session 1992-93. Year after year the "annual check up" is demanded by candidates. Such applications have become almost a ritualistic feature, and candidates continue to question correctness of the question set and/or answers indicated to be correct answers. For the examination in question, 150 multiple choice objective questions were required to be answered. Four alternative answers were indicated against each question. According to the examining body, only one of them is the correct answer. The body selects the correct answer or most appropriately correct answer which is normally called the "key answer". A candidate is required to cross the alphabet box which stood for the answer, which according to him, was the correct or most appropriately correct answer.
2. We are baffled that year after year such applications are flooding this Court. For the sessions 1990-91 and 1991-92, large number of petitions were filed and in Priyadarshini Acharya etc. etc. v. State of Orissa represented by the Secretary, Department of Health, 1991 (1) OLR 514, and in Raghunath Pradhan v. State of Orissa, represented by the Secretary to Government, Health and Family Welfare Department, Bhubaneswar, 1992 (II) OLR 317, this Court found that at least in respect of a sizeable number of questions, the key answers indicated were not correct. The situation has not improved.
3. In a multiple choice objective test, the key answer should be correct or most appropriately correct answer, and the rest should be either wholly incorrect or incorrect though appear to be correct. That is the distinctive feature between a multiple choice objective test and the traditional system of examination; In the latter system, the candidates are required to give essay type answers. In this background it is imperative that the answers to the questions as indicated must not carry two correct answers. That would be unfair to the candidate. It was clarified by the apex Court in Kanpur University v. Samir Gupta, AIR 1983 SC 1230 : (1983 All LJ 1220), and by this Court in Priyadarshini Acharya's case (supra) and Raghunath Pradhan's case (supra) that the key answer should be assumed to be correct. Unless it is proved to be wrong and it should not be held to be wrong by an inferential process of reasoning, or by a process of rationalisation. It must be demonstrated to be wrong, that is to say, it must be such as no reasonable body of persons well-versed in the particular subject would regard as correct. The usual plea that the Court should not tinker with the view of the examining body was again pressed into service by the opposite parties before us. Though the argument is attractive, it is not sound. Where the method adopted or decision taken is clearly unreasonable, preverse and demonstratively wrong, the Court has to act and should not shun to interfere because the key answer has been suggested by the examining body.
4. There are certain intertesting features which have surfaced when we examined the questions and the correct answers. In the counter affidavit filed it was accepted that question Nos. 3, 69 and 79 ought not to have been set. It has been accepted that in respect of question No. 3 both answers (a) and (b) are correct, since the question is not correctly put. In respect of question No. 69, it is stated that any of the four choices given against the said question is not the correct answer. In respect of question No. 79, it was stated that the answer to the said question is not included in the +2 curriculam. It is stated in the counter affidavit filed that all the candidates have been given three marks in respect of the aforesaid three questions. The convenor was present in Court during hearing of the writ applications and to the pointed query made by one of us (Pasayat, J.) he answered that after the examination was over, he sought for opinion of experts and after taking into consideration their opinion each candidate had been given three marks in respect of questions Nos, 3, 69 and 79. This is an unusual procedure. The exercise should have been taken before the examination was held. The examining body should be aware that it is dealing with the careers of thousands of students who take examination with high aspirations of pursuing studies in medical faculty. The fact that three questions which were set did not have either correct answer or had multiple correct answers, shows non-application of mind by the question setters. These aberrations were condemned by us in no uncertain terms in Priyadarshini Acharya's case (supra) and Raghunath Pradhan's case (supra). But situation does not appear to have improved. The learned counsel for petitioners were right in their submission that if three other questions had been put the matter may have been different. A candidate securing 121 marks has been deprived of a seat, because the lowest mark of a selected candidate is 122. A post-mortem does not bring back the life of a person. Post verification of correctness of questions/ answers after examination is over cannot take away the effect of non-application of mind before the questions were set. We, however, find that this has equally affected each candidate. Therefore, we are not inclined to accept the contention of the learned counsel for petitioners that the examination has been vitiated on account of those mistakes committed by the examining body.
5. That is not end of the matter. We find that in respect of about 20 questions there are mistakes in the questions. Those have been attributed by the opposite parties to be the printer's devil or unintended mistakes. It is their case that any student acquainted with elementaries of Physics, Chemistry, Botany and Zoology could not have been confused by the mistakes. That does not dilute the irresponsibility of the examining body. Carelessness is writ large. If in 150 questions, there are nearly 20 mistakes, it is bound to affect the mind of any candidate. He may be required to think whether his knowledge in the subject is inadequate, or that there is a mistake in the question. It is not for the candidate to ponder over the correctness of the question and find out whether there is any printing inaccuracy. It was the duty of the examining body to be more careful to see that there is no mistake. This has also equally affected the candidates. Therefore, while expressing our displeasure over the carelessness of the examining body, we do not accept the prayer of the petitioners to nullify the results.
6. In respect of large number of questions, the petitioners have asserted that the key answers given are not correct. Volumes of materials have been placed for our consideration. Though the petitioners are correct that there is divergence of opinion, as regards correctness of the key answers, we do not think it necessary to refer to all of them because even the experts on whose opinions the petitioners have relied have accepted that when the key answers indicated are correct, but the answers suggested by mistake are nearly correct. In such a case, the key answer adopted by the examining body has to be accepted. Where, however, alternative answers are correct merely because examining body has adopted one of them to be correct answer cannot deprive a candidate who has answered alternative correct answer, cannot be denied a mark (sic). In respect of question No. 44, we feel that the key answer indicated is not the only correct answer. The said question reads as follows :
"44. Solubility of I2 in water is increased by:
(a) adding KI
(b) boiling the solution
(c) adding an acid
(d) cooling the solution According to the examining body, with reference to the opinion of certain Professors, answer (a) is the correct answer. It is stated that by adding KI the solubility of I2 in water is increased. Reference has been made to Modern Chemistry by Nanda, Das and Sharma at page 92. The petitioners have asserted that answer (b) is also correct answer. The Professors have opined that if iodine is boiled in water it may be vaporised, since it is a partially volatile substance, the possibility of I2 vaporising away by boiling is not relevant. The question is about increase in solubility. Significantly the Professors, whose opinions have been relied upon by the examining body, have not stated anything about this aspect. During course of hearing the Convenor who was present and was instructing the learned counsel for the State, accepted that (b) is also correct, but stated that (a) is more correct, without indicating the basis for such statement. Therefore, in our considered opinion answer (b) cannot be said to be wrong, and both answers (a) and (b) are correct. In view of our above conclusion, both answers are correct and not answer (b) is nearly correct. Every candidate who has indicated (b) to be the correct answer deserves one mark. Those of the petitioners who have secured 121 marks or more and have indicated answer (b) against question No. 44 to be the correct answer, shall be awarded one mark and their position shall be reconsidered by the opposite parties. If any of them has been awarded one mark in respect of question No. 44, obviously there is no question of addition of any mark. If after receiving one mark any of the petitioners becomes eligible, he is entitled to be admitted to the course. Let the exercise be done within three weeks from today. We make it clear that while considering the eligibility, the procedure indicated at Clause 9.3 of the prospectus has to be adopted. If on the basis of the mark awarded in respect of question No. 44, the position of the candidate concerned, is superior to that of a candidate already admitted, then only he/she shall be considered for admission.
7. The petitioners in OJC No. 8589,8603, 8691, 8692, and 9649 of 1992 and 176, 1111 and 1882 of 1993 have challenged that the process of selection is vitiated, because the mode of selection of candidates who are entitled to be selected against the seats reserved for scheduled caste, scheduled tribe, physically handicapped and green card holders has not been done on correct basis. We had asked the opposite parties to file details relating to mode of selection in respect of these categories. In the counter affidavit dated 27-3-1993 which was filed on 29-3-1993 it has been stated that the highest and lowest marks of different categories of selected candidates are as follows :
S.C. S.T. P.H. G.C. General Highest 124 102 107 137 141 Lowest 97 71 102 122 122 The stand of the petitioners is that those of the candidates belonging to the reservation categories, who have secured 122 or more marks are to be adjusted against the seats meant for general category, and not against the reservation seats. Surficially the argument appears to be attractive. But the opposite parties have indicated the difficulties which may be encountered by a candidate belonging to reserved category, if he is adjusted against the general category. It has been stated that on the basis of marks secured, a candidate may not get admission in a college of his/her choice or may be required to be admitted to BDS course. Illustratively it is stated that a candidate bearing roll No. B O4C belonging to scheduled caste has secured 124 marks and is at serial No. 151 of the general merit list. Due to such a low position in the general merit list, he would not have got college of his choice, i.e. S.C.B. Medical College, Cuttack. But in the scheduled caste category, he has secured the highest marks and has been admitted to SCB Med ical College, Cuttack as per his choice, Similarly another Scheduled caste candidate bearing roll No. S 1426 C, who secured 120 marks, is in serial No. 231 in the general merit list; but he has secured second highest mark in scheduled caste category and has been considered for admission under that category. Otherwise, he would not have even got admission in BDS course.
8. Clause (4) of Article 16 is not exhaustive of the concept of reservations. It is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) of Article 16 is exhausted thereby. The apex Court in Indra Sawhney etc. etc. v. Union of India, AIR 1993 SC 477 observed that reservation can be provided under Clause (1) of Article 16 but it is in very exceptional situations, and not for all -and sundry reasons -- that any further reservation of whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary in public interest to redress a specific situation. The very presence of Clause (4) of Article 15 should act as adamperupon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under Clause (4) as well as under Clause (1) of Article 16, the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.
9. There is no bar for a candidate belonging to the reservation categories to be considered for the general category. In fact, the prospectus clearly stipulates so. Clause 2.1 Note (ii) reads as follows :
"(ii) Candidates shall apply for admission against seats reserved for only one category of reserved seats specified in column 3 to 6. In the event of detection of applications submit ted for more than one category of reserved seats by the same applicant, all the applica tions shall be rejected. Applicants duly applying for one category of reserved seats shall be considered for general seats as well on merits." (Underlining is ours) Obviously the intention is that if a candidate is selected on merit in respect of general category, he/she shall not be considered for the reservation category. But that is not the end of the matter. It is prescribed in Clause 9.2 that scheduled caste/scheduled tribe candidates securing less than 45 marks and the other candidates securing less than 75 marks out of the total 150 marks in the Entrance Examination shall not be selected. Clause 9.1 stipulates that selection is to be made from amongst eligible candidates, category-wise in order of merit on the basis of marks obtained by, them in the Entrance Examination. Placement of candidates is prescribed in Clause 10. Clause 10.1 is relevant for our purpose. It stipulates that placement of candidates in three Medical Colleges and the Dental Wing of the SCB Medical College, Cuttack, shall be made by the Selection Board taking into account the candidate's position in the merit list and the order of his/her preference, (underlined by us for emphasis). Therefore, even if a candidate is eligible to be considered in the general category, yet is placed at a disadvantageous position by not getting a seat in a college of his/her preference, he/she cannot be forced to accept the same. As pointed out in the counter-affidavit, the candidate bearing roll No. B04C, who had secured serial No. 151 in the merit list would not have got a seat in the SCB Medical College, Cuttack, which was his first preference. But the counter-affidavit is significantly and singularly silent about other cases.
10. So far as the green-card holders are concerned, he has been stated by the opposite parties that the candidates bearing roll Nos. A.04G, Section 1069G and Section 586G have been selected in the general list by virtue of their merit when they failed to be selected in the category they have claimed. The statement is confusing. According to us, the correct procedure is first the general seats are to be-filled up on the basis of marks secured by candidates. If any candidate belonging to reservation category is included in the merit list of general category, he has to be considered in the general category and not in the reservation category, subject of course to verification of the position that he has got a seat in the college of his choice. In such a situation, the candidate is to be considered in respect of general category, and not in respect of reservation category. This procedure has to be adopted in respect of 21 seats for scheduled caste, 33 seats for scheduled tribe, 3 seats for physically handicapped and 12 seats for green-card holders. In addition the corresponding numbers for Dental Wing are one for scheduled caste, two for scheduled tribe and one for green-card holder. The examining body shall verify if the seats reserved for green-card holders have been filled up in the manner indicated by us. Let the exercise be undertaken within three weeks from today and in case any of the petitioners are eligible, the procedure as indicated by us in para 7 (supra) be followed.
The writ applications are accordingly disposed of. No costs. We make it clear that hereafter no further writ applications involving similar disputes shall be entertained.
D.M. Patnaik, J.
11. I agree.