Andhra HC (Pre-Telangana)
Convenor, Eamcet 1998, Jawaharlal ... vs D. Satish And Ors. on 19 October, 2001
Equivalent citations: 2001(6)ALD784, 2001(6)ALT280
Author: S.B. Sinha
Bench: S.B. Sinha, B. Sudershan Reddy
JUDGMENT S.B. Sinha, C.J.
1. This appeal by the Convener, EAMCET 1998 is directed against the order of the learned single judge disposing of the Writ Petition filed by a student who appeared for EAMCET-98 (Medical) with the following:
For all the above-mentioned reasons, I direct the third respondent to evaluate the above-mentioned 13 questions which are said to have been answered wrongly by the petitioner, with reference to the B.series, be cross-checked with reference to the D series and depending on the outcome of such a process, the rank of the petitioner be revised. It is further directed, basing on such revision, the case of the petitioner be considered for admission into M.B.B.S course in accordance with rules. The whole exercise of the revision of the rank of the petitioner as indicated above, should be completed within a period of one week from the date of receipt of a copy of this order.
2. The parties will be referred to by their status in the writ petition. The petitioner, a student aspiring for admission into M.B.B.S. Course had appeared for the EAMCET-98 examination on 14.5.1998. It is an objective type examination, which consists of 200 questions. The duration of examination is three hours. The answers to the questions are required to be indicated in a separate sheet called OMR sheet. The question paper consists of four subjects viz., Botany, Zoology, Physics and Chemistry and under each subject 50 questions will be given and the question paper booklet also consists of four divisions. To eliminate any possibility of malpractice of copying etc., a system was devised by which the question papers are made in four different series viz., 'A', 'B', 'C' and 'D'. The sequence of questions in each of the series is different from the other series and the booklets will be distributed in the examination hall in such a way that no two neighbouring students would get the same series of the question paper. It may be not herein that on publication of final key by the Convenor for the year question 23 questions were deleted, and only 177 questions we considered for evaluation of the: merit of the candidates and ranks were assigned basing on the marks obtained by the candidates out of 177 questions.
3. The case of the petitioner is that when the examination commenced, question paper of 'B' series No. 861838 was supplied to him, which is in the subject order of Botany, Zoology, Physics and Chemistry. But to his surprise in the group of first 50 questions, questions 31 to 38 were not at all printed and questions 41 to 50 were repetitions of earlier questions. When the same was brought to the notice of the invigilator, he was asked to continue with the same paper pending decision by the Chief Superintendent. According to the petitioner, even in respect of Chemistry subject also similar discrepancy crept in and when the same was brought to the notice of the invigilator, nearly after one hour from the commencement of examination, he was supplied with another booklet of 'B' series No. 862022. The plea for grant of extra time for compensation of loss of time he suffered due to the confusion was declined. However, it may be noticed that he has been able to answer all the 200 questions. The petitioner secured 2274th rank.
4. The petitioner, therefore, filed the writ petition alleging that due to the confusion created in the booklet, there was lot of stress on mind while writing the examination and therefore he should be compensated by directing the respondent to revise his rank by re-examining his paper, particularly, with reference to those questions; where he was held to have given wrong answers with reference to different keys, which are appropriate, having regard to the two question papers supplied to him and consequently he be provided with a seat in the first year M.B.B.S course.
5. The learned counsel appearing on behalf of the appellant would submit that the learned single Judge has erroneously proceeded to issue the aforementioned directions purporting or relying on the basis of the decision of the Apex court in C. TULASI PRYA v. A.P. STATE COUNCIL OF HIGHER EDUCATION, 1998 (6) Supreme 184, which has no application in the facts and circumstances of the case. The learned counsel would contend that the said decision was rendered by the Apex court under Article 142 of the Constitution of India. It was submitted that assuming that there was a mistake, the same by itself would not entitle the petitioner to get a seat. Such a mistake on the part of the authorities, the learned counsel would contend, may give raise to a cause of action for awarding damages. Therefore, the impugned directions must be held to be impermissible. He would urge that such an incident might have taken place accidentally so far as the petitioner is concerned. Such a method can be adopted by an invigilator in collusion with a student whereby the University will have no say. Our attention has been drawn to the fact that the writ petitioner had answered 197 questions out of 200 questions within the stipulated time and as such it cannot be said that he has in any way been prejudiced. It was contended that in any event, the learned single Judge ought to have followed the judgment of this Court in W.P. No. 32258 of 1998 having regard to the doctrine of judicial discipline.
6. Mr. Nuty Rammohan Rao, learned counsel appearing for the petitioner, on the other hand, would submit that prejudice caused to the petitioner is writ large on the face of the record. He would contend that had sufficient time been at the disposal of the petitioner, he would have got some time to check up as to whether the answers given by him to the questions are correct or not and would have improved his chances. Having regard to the importance of the examination, the learned counsel would submit that the impugned judgment cannot be said to be erroneous. It was urged that the petitioner belongs to backward class community and he missed the seat only by a few marks.
7. The matter relating to valuation of answer scripts normally is governed by statutory rules, in certain States re-valuation is permissible whereas in some states, only re-totalling is permissible. It appears that pursuant to the directions of the learned single judge to make an assessment of the prejudice suffered by the petitioner, deliberations had taken place and the third respondent filed an additional counter affidavit. Upon noticing the contents of the counter, the learned single Judge held:
The undisputed factual position that emerges from the deliberations, is as follows:
Of the 177 questions considered for evaluation, 108 questions are from the B series and 66 questions are from D series. Though it is not made very explicit in the additional affidavit filed by the third respondent, obviously, it relates to the first/defective question paper initially supplied to the petitioner.
It is admitted by the third respondent "because of the jumbling of questions, the deleted 23 questions fall at different places in each of the four series and for that reason, in this case, three more deleted questions were repeated.
Of the 108 questions from the B series given in the defective question paper, the petitioner answered 88 questions correctly, and 20 questions wrongly; of the 69 questions of the B series, which the petitioner was required to answer on the replacement of the defective question paper, the petitioner answered 56 questions correctly and 131 questions wrongly.
XX XX XX
8. Dealing with the contention of the petitioner that the 13 questions which he answered wrongly out of the 69 questions in the replaced booklet, an attempt should be made to verify whether those 13 answers would derive right answers with reference to D series key it was observed:
It is true that there is no material on the record to show as to whether the said questions were answered by the petitioner before the defective question paper was replaced, but it would be highly unrealistic to expect a young student, to either memorise or maintain any record of exactly what happened during those three hours of examination, coupled with the additional pressure created on the mind of the student in the Background of the above-mentioned facts.
No doubt, by resorting to the procedure adopted by the petitioner, some amount of speculation and conjecture are inevitable, but having regret to the fact that the State having taken over the control of the examination system and the process of selection to the medical colleges and in the course of the discharging of its duties while exercising such control in so far as the petitioner is concerned, has committed a wrong, which has the effect of treating the petitioner differently from the rest of the students, who are similarly situated and appearing for the same examination, and any prejudice resulting from such lapses on the part of the State not only effects the fundamental rights of the petitioner under Article 14, but also under Article 21 of the Constitution of India and in view of the admission noticed earlier that the replacement of the question paper took place almost an hour after the examination had commenced, I am of the opinion that the request of the petitioner is, in the circumstances, cannot he called purely speculative venture.
9. With respect, we are unable to subscribe to the aforementioned reasoning or the learned Judge. Only because the State has taken under its control the examination system and a mistake has been committed, the same, in our opinion, cannot lead to a conclusion that the fundamental rights of a student both under Article 14 and Article 21 of the Constitution of India have been violated.
In the additional counter-affidavit filed by the Convener or 24.12.1998, it has been stated:
I submit that as per the instruction 3 of cover page of the question paper booklet the candidate is required to check whether all 200 multiple choice questions were printed properly or not. In addition the invigilators instructed the students in the examination hall to check whether all 200 questions were printed properly or not and bring to the notice of the invigilator for replacement, if the question paper is defective within 5 minutes after the papers were distributed at 2.25 p.m. i.e. 5 minutes before the, commencement of the examination at 2.30 p.m. Admittedly the invigilators in the present case had announced and read out the instructions in the examination hall.
It is further submitted, if the petitioner had gone through the question paper as per the instruction of the invigilator he would have noticed the jump in the questions and would have brought it to the notice of the invigilator immediately for replacement of defective booklet. It is dear that he had not checked the question paper properly immediately after receiving it, instead of going through the instructions on the fact of the booklet he started answering he questions and noticed the defect only at about 3 p.m. i.e. half an hour after the commencement of the examination.
It is submitted that invigilator instructed the petitioner to answer the questioned printed with B code (which were 126 in number) till the correct question paper booklet is provided. Meanwhile, the invigilator took all reasonable steps to replace the booklet. The booklet was replaced at about 3.30 p.m. From the above, it is clear that the petitioner would not have lost time, provided that he has gone through the question paper as per the printed instructions on cover page of the question paper booklet and/or followed the instructions of the invigilator.
10. It is stated that the petitioner had answered all the questions and he had secured 144 marks out of 200 (177). It may be a different situation that where a student due to loss of time on account of supply of defective question booklet, he has failed to answer some questions and as such he may be awarded marks to compensate the loss of time. But, it is another thing to say although he has answered all the questions, the same having been found to be wrong, marks may be directed to be awarded for the wrong answers.
11. In Tualasi Priya's case the fact of the matter was different. There the petitioner was given D type answer paper booklet at about 1.55 p.m. and at 2.20 p.m. the invigilator upon noticing that the petitioner ought to have been given 'C' type answer book in stead of D type answer paper, the invigilator took away D type answer paper and after ten minutes the petitioner 'was given 'C' type answer paper. Therefore, the petitioner has only two and half hours time left to answer the questions. She answered 170 out of 200 questions and secured 160.75 marks at 94.55%. Despite the fact that she lost valuable time, no extra time had been granted to her to answer in spite of a request having been made therefor. No such case has been made out herein. The petitioner herein was given a correct type of question paper but it was only a defective one and the same was replaced by a correct one.
12. In Tualasi Priya's case, before the High; Court a plea was taken to call for the answer papers to find out whether the record shows that there was loss of time. Such request was negatived by the High Court. The Apex Court found that the reports of the invigilator are not annexed ether to the para-wise remarks before the High Court or to the counter filed before it was further found that the inquiry was made almost four months after the incident and there was nothing to indicate that the invigilator's reply was based on any thing but her memory. The Apex Court also found that the petitioner's papers were not preserved inspite of the fact that the petitioner's advocate sent a telegram to the authorities immediately on the next day of the examination followed by a letter and they were not produced before the court on the ground that they were not traceable. In the aforementioned situation, the Apex Court observed:
There can be no doubt that the production of the two answer papers would have indicated whether or not the case of the appellant was correct.
13. Having regard to the fact situation, it was directed:
It is unrealistic to expect a young and, no doubt, nervous student in the midst of an important examination to think of submitting written protests there and then. The refusal of the High Court to interfere on this ground has, regrettably, compounded the injustice done to the appellant. As for the ground of disputed questions of fact all that the High Court needed to see was the wrong answer paper first given to the appellant. The number of questions that she had marked thereon would have indicated whether she was right when she said that she had worked on it for about 20 minutes. If this answer paper could not be produced even at that stage, the High Court should have drawn the appropriate adverse inference against the authorities.
14. The very fact that directions were issued in the facts and circumstances of the aforesaid case to do complete justice is a pointer to the effect that the Apex Court did not intend to lay down any law within the meaning of Article 141 of the Constitution of India. But, such direction was issued only in terms of Article 142.
15. In M. SREEDEVI v. UNIVERSITY OF MEDICAL SCIENCES, ANDHRA PRADESH, 2000 (7) Supreme 594, upon which reliance has been placed by Mr. Nuty Rammohan Rao, the Apex Court therein also proceeded on the basis of the factual aspects involved. The said decision also does not lay down any law. The Apex Court was considering the Correctness or otherwise of an order which was passed by the High Court at the threshold following directions of the Courts in a batch of writ petitions. Before the Apex Court the mother judgment was not produced. It was not disclosed as to what directions had been issued by the High Court in the batch of Writ Petitions.
16. Yet again, therefore, the said decision cannot be said to have laid down any law within the meaning of Article 141 of the Constitution of India.
17. Conversely, in this case, the petitioner herein having answered all the questions cannot be said to have been prejudiced. Further, the different combinations worked out as per the request of the petitioner was stated as follows:
1. The petitioner OMR answer sheet is evaluated with B series key. The petitioner gave 144 correct answers and 33 wrong answers out of the total 177 questions considered for evaluation.
2. The petitioner's OMR answer sheet is evaluated as per the request of the petitioner as settled in para 5 above. Of the 177 taken for evaluation 108 questions are from B series and 66 are from D.series. Because of the jumbling of the questions, the deleted 23 questions fall at different places in each of the 4 series and for that reason, in this case 3 more deleted questions were repeated. As per this evaluation the petitioner gave 88 correct and 20 wrong answers from the 108 questions of the B series. The petitioner gave only 16 correct and 50 wrong answers from the 66 questions of D series. Thus the petitioner gets 104 marks out of 177.
18. Therefore, the petitioner will be benefited evaluation of OMR sheet with B series key only. It is not a case where the petitioner had suffered any loss of time. His defective 'B' series question booklet was replaced by the very same 'B' series booklet and, therefore, till the defective booklet was replaced he had the opportunity of answering the questions with the same OMR answer sheet. It is not his case that he had lost any valuable time because of the supply of defective question Booklet. His contention is that because of the confusion created by the supply of defective question booklet, there was stress in his mind while writing the examination. Further, as per the instructions mentioned on the cover page of the question paper booklet, the petitioner was required to check whether all 200 questions were printed properly or not. We may notice from the counter that the request of the petitioner for an assessment of B series had been made by breaking it into two parts as under:
1. Correct questions from the defective booklet: 108
2. Questions corrected by replacement of booklet 69 177
1.a Total questions 108 100%
1.b Correct answers 88 81.5%
1.c Wrong answers 20 18.5%
2.a Total questions 69 100%
2.b Correct answers 56 81.2%
2.c Wrong answers 13 18.8%
19. Therefore, the state of mind of the petitioner was not affected in any way. In these circumstances, in our considered opinion, this Court, in exercise of the jurisdiction under Article 226 of the Constitution of India, cannot direct that the 13 questions, which had been answered wrongly, be re-checked with D series key. Such method of evaluation being not tenable, in our considered view, would be beyond the jurisdiction of this Court in exercise of the power of judicial review.
20. For the reasons aforementioned, we are of the opinion that the impugned order of the learned single Judge cannot be sustained and it is accordingly set aside. The Writ Appeal is allowed. No order as to COStS.