Shakil Vadaliwala Son Of Dr. Mohmed ... vs Gujarat University & 3 on 20 June, 2014

[Cites 14, Cited by 0]

Gujarat High Court

Shakil Vadaliwala Son Of Dr. Mohmed ... vs Gujarat University & 3 on 20 June, 2014

Bench: Harsha Devani

         C/SCA/4529/2014                             ORDER




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


         SPECIAL CIVIL APPLICATION NO.4529 of 2014


=============================================
 SHAKIL VADALIWALA SON OF DR. MOHMED TAHIR VADALIWALA &
                      1....Petitioner(s)
                            Versus
          GUJARAT UNIVERSITY & 30....Respondent(s)
=============================================
Appearance:
MR ANAND YAGNIK, ADVOCATE for MR RIDDHESH TRIVEDI,
ADVOCATE for the Petitioner(s) No.1 - 2
MR GM JOSHI, ADVOCATE for the Respondent(s) No.6
MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No.3
MR SN SHELAT, SR. ADVOCATE with MRS VD NANAVATI, ADVOCATE
for the Respondent(s) No.1
NOTICE SERVED for the Respondent(s) No.2
MS SHIVANI RAJPUROHIT, ADVOCATE for the Respondent(s) No.4 - 5 ,
7 - 31
=============================================

        CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI


                           Date : 20/06/2014


                             ORAL ORDER

1. By this petition under Article 226 of the Constitution of India, the petitioners seek the following substantive reliefs:-

"9. The petitioners, therefore, pray that this Hon'ble Court may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction and thereby be pleased:

(A) to hold that correction of marks followed by rechecking and re-evaluation of answer sheets for Postgraduate Medical Entrance Examination, 2014 conducted by respondent Gujarat University and process of giving admission into Postgraduate Medical Courses on the same by the respondents is illegal and unconstitutional Page 1 of 35 C/SCA/4529/2014 ORDER and thereby be pleased to quash and set aside the impugned action;

(B) to direct not to give admissions into Postgraduate Medical Courses for the year 2014 in the Gujarat University and in the Colleges affiliated to the same based on revision in the mark sheet and merit list prepared thereupon in the context of correction of answers and re-evaluation and rechecking carried out thereafter;

(C) to direct the respondents to give admission into Postgraduate Medical Courses for the year 2014 in the Gujarat University and in the Colleges affiliated to the same based on first mark sheet based on the result announced of the Postgraduate Medical Entrance Examination, 2014 on 25.01.2014 based on original and unrevised mark sheet without any correction of answers coupled with rechecking and/or re-evaluation of the marks and the mark sheets;

(D) IN THE ALTERNATIVE be pleased to direct the respondents to carry out counseling as per the All Indian PG Medical Entrance Examination.

2. The facts giving rise to the present petition are that the petitioners herein have completed their M.B.B.S. and internship from medical colleges affiliated to the respondent No.1 - Gujarat University, viz., Smt. NHL Medical College and B.J. Medical College respectively. The second petitioner is a Scheduled Tribe candidate. Both the petitioners are eligible and qualified for admission to the Post Graduate Medical Courses run by the respondent University. The respondent University announced entrance examinations for admission to Post-graduate Degree courses for medical students of colleges affiliated to the Gujarat University and students from other universities. The entrance examination for Post Graduate medical studies was conducted by the respondents on 25 th January, 2014 as per the rules and as per the schedule. The Page 2 of 35 C/SCA/4529/2014 ORDER petitioners appeared in the entrance examination. Within six to eight hours of the entrance examination, the respondent announced the results of those who had appeared in the P.G. Entrance Examination, wherein the first petitioner had scored 261 marks and the second petitioner had scored 203 marks. It is the case of the petitioners that according to the marks obtained by them in the P.G. Entrance Examination, 2014, the first petitioner was entitled to get admission in Surgery in the general category and the second petitioner was entitled to get admission in surgery in all the branches in the category of Scheduled Tribe. It is the case of the petitioners that since they were getting admission in the branch of their choice based on their scores in the P.G. Entrance Examination, they did not appear in the interview and/or examination conducted by other universities and deemed universities giving up opportunities to secure admission elsewhere in P.G. Medical Studies.

3. It appears that after the announcement of the results of the P.G. Entrance Examination, 2014, some students who had appeared in the said examination, raised issues with regard to the correctness of the answers and requested that the answers be corrected and their answer-sheets be re- checked and re-evaluated. According to the petitioners, though there is no provision for re-checking or re-evaluation of the answer-sheets and no query in this regard can be entertained in terms of the rules, the respondent University by succumbing to pressure from influential persons, in the name of incorrect answers, carried out re-evaluation and re-checking of papers after correcting the answers behind the back of majority of the students who had appeared in the examination and prepared a second revised mark-sheet. In the revised mark-sheet, even Page 3 of 35 C/SCA/4529/2014 ORDER though the first petitioner had scored 10 marks more than the marks he had scored as per the original mark-sheet, as he had scored 271 as against 261 marks; he has gone down in the merit list because comparatively, other students have got much more marks based upon the positive and negative marking. The marks of the second petitioner have gone down from 203 to 195.5 and his position in the merit list in the Scheduled Tribe category has also gone down. Consequently, both the petitioners will not get admission in their choice of branch in view of the revised mark-sheets. Thereafter, provisional merit list was published on 21 st March, 2014 based on the revised mark-sheets which were published on the same date. In terms of the instructions given by the respondents along with the provisional merit list on the website of the respondent University, the petitioners have made representation against the rechecking, re-evaluation and correction of answers of PG Entrance Examination, 2014 conducted by the Gujarat University within the time limit so provided and the representations have been acknowledged by the respondents. As the final merit list was likely to be published on 26th March, 2014 and counselling for PG admissions based on the revised mark sheets was to take place on 27th March, 2014, the petitioners, being aggrieved by the action of the respondent University in undertaking re- checking and re-evaluation of the answer-sheets of the students who appeared in the Post Graduate Entrance Examination in the year 2014, based on correction of answers after announcing the results, have filed the present petition seeking the above referred reliefs.

4. In response to the averments made in the Page 4 of 35 C/SCA/4529/2014 ORDER memorandum of petition, the respondent University has filed an affidavit-in-reply stating that the Gujarat University received a representation from Post Graduate Medical students addressed to Mr. M.M. Prabhakar, Medical Superintendent, B. J. Medical College for correction of the scoring because there were discrepancies regarding answers of few questions as perused by them. The students along with the representation submitted by them, also relied upon the extract from the relevant books etc. so as to substantiate their objections to the result announced on 25th January, 2014. The representation dated 20th February, 2014 was received by the University on 6 th March, 2014 and was considered by the Pro VIce-Chancellor. The students had also met the Pro Vice-Chancellor and voiced their grievance against the error committed while declaring the scoring. Since at that time, the announcement of the Vice- Chancellor was already made by the State and appointment was already made, the Pro Vice-Chancellor, in his wisdom, deferred the decision till the Vice-Chancellor took charge. The Vice-Chancellor after having consulted the Faculty of Medicine took the decision that it would be the duty of the University if there are any errors as suggested by the students which may affect their admission to the Post Graduate courses and that it would be in the academic interest that the experts of the subject be consulted and on their advice further steps be taken. Subsequently, thereafter a meeting was convened on 21st March, 2014 and professors/teachers of various disciplines of the Faculty of Medicine were requested to attend and advise the Vice-Chancellor regarding the steps to be taken. The said meeting was attended by 43 expert teachers on the subject. Subsequently, having regard to the advice tendered, the Vice- Chancellor directed that the previous scoring may be revised Page 5 of 35 C/SCA/4529/2014 ORDER after the mistakes in the key to the answers were corrected by the experts. That in fact, advantage was given to the students by adding two marks to every student where all the options were incorrect and there was no mistake on the part of the students. It is further averred that the University was required to immediately act upon the revised scoring and prepare merit list and arrange counselling for the students seeking admission to the Post Graduate Medical Courses in view of the directions given by the Supreme Court in Writ Petition No.433/2013 on 14th March, 2014. It is also averred that the decision taken by the Vice-Chancellor shall be placed before the Executive Council. It is further averred that as a result of the corrected scoring, 951 students have benefited while in case of 78 students, the scoring has been reduced and there is no change in the scoring of 73 students. The difference in the original and revised scoring ranges from of 2 to 20 marks. By a further affidavit dated 28th April, 2014 it has been stated that a meeting of the Post Graduate Medical Admission Committee of Medicine and various medical subject experts was held on 21 st March, 2014 at the office of the Vice Chancellor to discuss various objections/representations of the students about wrong answer key to the entrance examination of Post Graduate Medical Admission of 2014 and other admission related issues. After careful consideration, the subject experts have rectified the answer key and accordingly revised the results and merit list has been prepared. Copies of the minutes of the meeting held on 21st March, 2014 as well as the revised answer key and the previous and revised total scores of the candidates have also been produced therewith.

5. Subsequently, by an affidavit-in-reply dated 19 th Page 6 of 35 C/SCA/4529/2014 ORDER May, 2014 made on behalf of the first respondent-Gujarat University, it has been stated that the Vice-Chancellor had taken the decision to correct the mistakes noted in the key answers as advised by the experts at the meeting held on 21 st March, 2014. He had thereafter placed his decision before the Executive Council which had noted the decision of the Vice- Chancellor in its meeting held on 9th May, 2014 and approved of the same. It has been submitted that it is competent for the Executive Council to accept the decision of the Vice-Chancellor having regard to the advice tendered by Expert Committee consisting of members of the medical faculty to correct the key to the questions and thereafter to direct correction in the scoring. It is averred that after the correct scoring was published, the merit list was prepared and on the basis of the said list, provisional admission had been granted by the University subject to the result of this petition.

6. The Medical Council of India as well as the respondents No.6, 7 and 8, have also filed affidavits-in-reply. In response to the averments made in the affidavit-in-reply filed by the first respondent - University, the petitioners have filed an affidavit-in-rejoinder dated 29th April, 2014.

7. Mr. Anand Yagnik, learned advocate for the petitioners vehemently assailed the action of the respondents in amending the answer key and carrying out re-evaluation of the mark-sheets of the candidates. The attention of the court was invited to rule 7 of the Rules Governing the Admission of Post Graduate Degree and Diploma Medical Courses other than M.Ch. and D.M. of the affiliated Medical Colleges/Institutions from 01.11.2013 (hereinafter referred to as "the rules") and Page 7 of 35 C/SCA/4529/2014 ORDER more particularly, to rule 7.1(A)(5) thereof which lays down that there is no provision for re-checking/re-evaluation of the answer-sheets and no query in this regard will be entertained. It was submitted that when the respondent - Gujarat University specifically provides that there is no provision for re- checking/re-evaluation in this regard, and the rules do not provide for entertaining representations of students questioning the correctness of the answer key, no such request made by the students could have been entertained by the respondent University. It was argued that in fact, such an action of re-evaluation/re-checking is specifically prohibited by rule 7.1(A)(5) of the rules and hence, the action of the respondent University in re-checking/re-evaluation of the answer-sheets is de hors the rules and is arbitrary and illegal. It was submitted that not only have the answer-sheets been re- evaluated/re-checked but the correct key answers have also been revised after declaration of the result of the examinations and in the revised answer key, the correct options have been changed in respect of several questions, and in some cases, two options are stated to be correct. It was submitted that it is not understood as to how two answers to one question can be considered to be correct in a test based on multiple choice questions. It was argued that the change in key answers is not permissible as per the rules and the action of the respondent University is not sustainable in law. It was submitted that even if it were to be assumed that some of the answers in the earlier key were wrong, the question that arises is whether a revision of the key answers and consequently the answer-sheets can be undertaken by the respondent University. It was emphatically submitted that in view of the specific prohibition under rule 7.1(A)(5) of the rules, the University has no power to do so.

Page 8 of 35 C/SCA/4529/2014 ORDER

7.1 Mr. Yagnik further submitted that on behalf of the University, it has been submitted that though it is the case of the respondent University that the Vice-Chancellor has taken the decision to review the answer key, no such decision has been placed on record. It was submitted that the existence of a power and the exercise of such power are two different things. When powers are exercised in an emergency, it should be by way of a reasoned order because the party who is adversely affected has no means of knowing what was in the mind of the Vice-Chancellor when he took the decision. It was contended that the action of the Vice-Chancellor in giving oral orders and superseding the rules is contrary to law.

7.2 The attention of the court was invited to the Minutes of the Meeting of the Executive Council of the respondent University dated 9th May, 2014 and more particularly, to Item No.2 thereof to point out that the Executive Council has merely taken note of the action taken by the Vice-Chancellor but has not granted its approval. It was submitted that, therefore, the requirements even according to the Ordinance on which reliance has been placed by the respondent University are not satisfied. It was submitted that if power vested in the Vice-Chancellor under the rules is exercised in extraordinary circumstances, such decision has to be on record. In the present case, the existence of power has not travelled to exercise of power and the entire action of correcting the answer key and revising the mark-sheets on that basis, is unconstitutional and the subsequent approval/taking note of by the Executive Council would not validate the same. Referring to the provisions of section 11 of Page 9 of 35 C/SCA/4529/2014 ORDER the Gujarat University Act, 1949 and more particularly, sub- section 4(a) thereof, it was submitted that the emergency powers are not meant to undo admission rules framed by the Academic Council and the powers vested in the Vice- Chancellor under sub-section 4(a) of section 11 do not so empower the Vice-Chancellor. It was submitted that when the admission rules had been framed by the Academic and Executive Council and the same specifically prohibit re- checking and re-evaluation, the Vice-Chancellor under the guise of exercise of power under sub-section 4(a) of section 11 of the Act cannot override the rules framed by the Academic Council.

7.3 Next, it was submitted that the initial result of the entrance exam came to be declared on 25 th January, 2014 and that till 21st March, 2014, for two months, the University did not do anything and hence, they should be called upon to explain as to what action was taken during the interregnum. It was submitted that in any case, the exercise of powers under section 11(4)(a) of the Gujarat University Act, 1949 (hereinafter referred to as "the Act") was not warranted in the facts and circumstances of this case without prejudice to the contention that there is no such power vested in the Vice- Chancellor. It was submitted that the decision to revise answer key and carry out re-evaluation/re-checking was taken behind the back of the students and that prior to taking any such decision, the students ought to have been taken into confidence.

7.4 Lastly it was submitted that in case it was found that the key answers were erroneous, there were several Page 10 of 35 C/SCA/4529/2014 ORDER alternatives available to the University. Firstly, they could have deleted the questions in respect of which the answer key was incorrect. Secondly, the answer key could not have been corrected by the in-house Professors but should have been referred for the opinion of the expert institutes like AIIMS and the Medical Institute at Chandigarh, etc. and thereafter, the respondent University could have taken a call as to what to do with the examination. Thirdly, the respondent University could have conducted the examination once again and fourthly, the University could have relied upon the results of All India Entrance Examination for giving admission to the PG Medical courses. It was, accordingly, urged that the impugned action of the respondents in correcting the answer key and carrying out re-evaluation and re-checking being contrary to the rules and de hors the power of the Vice-Chancellor, is required to be quashed and set aside and the original score-sheet is required to be restored.

8. Opposing the petition, Mr. S.N. Shelat, Senior Advocate, learned counsel appearing on behalf of the respondent University invited the attention of the court to the provisions of section 11 of the Act which provides for the powers of the Vice-Chancellor. It was pointed out that sub- section 4(a) thereof provides that in any emergency which, in the opinion of the Vice-Chancellor requires that immediate action should be taken, he shall take such action as he deems necessary and shall at the earliest opportunity thereafter furnish information regarding his action to such officer, authority or body as would have in the ordinary course dealt with the matter. It was submitted that it was, therefore, in exercise of the powers vested in him that the Vice-Chancellor Page 11 of 35 C/SCA/4529/2014 ORDER has taken the above referred decision which is well within the bounds of his authority. The attention of the court was invited to Ordinance 146 of the Gujarat University Ordinance and Regulations to submit that in case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, it is competent for the Executive Council to cancel or amend such result in such manner as shall be in accordance with the true position and to make such declaration as the Executive Council may in its discretion consider necessary in that behalf. It was submitted that in the present case, upon consideration of the representation of the students, it has been found that the result of the examination has been affected by error, inasmuch as, there was an error in the answer key due to which, the result of the examination was incorrect. It was submitted that insofar as rule 7.1(A)(5) is concerned, the same pertains to the answer-sheets of an individual examinee and would be applicable only to an individual examinee in order to deny such examinee re- evaluation/rechecking of his/her answer-sheet. However, in the present case, after the total scores on the basis of the key answers were published on the website on 25th January, 2014, the University received several representations to the effect that the key answers were incorrect. Therefore, as the entire examination was affected by certain errors, it was thought fit by the University to correct the errors and amend the result. The enabling power is Ordinance 146 and the University has rightly resorted to the provisions of Ordinance 146 read with section 11(4)(a) of the Act for the purpose of correcting the answer key and re-evaluating the answer-sheets of all the students who had appeared in the entrance examination.

Page 12 of 35 C/SCA/4529/2014 ORDER

8.1 As regards the contention that the Vice-Chancellor has not given any decision in writing, the learned counsel produced for the perusal of the court, the original record of the University which shows that the Vice-Chancellor has made an endorsement to the effect that under the guidance of the Chairman of the Admission Committee, steps be taken to make necessary changes in the answer key as per the opinion of the experts in different subjects and to declare the result in accordance with the rules. The attention of the court was invited to the Minutes of the Meeting of the Executive Council held on 9th May, 2014 to point out that the action taken by the Vice-Chancellor was brought to the notice of the Executive Committee and that the Executive Committee had duly taken note thereof. Reliance was placed upon the decision of a Division Bench of this court rendered in the case of Sonal V. Shah v. Gujarat University, 1981 GLR 934, wherein the question before the Division Bench was whether a circular letter dated 19th June, 1981 issued by the Vice-Chancellor of the University remained to be his decision or whether it had come to be by ratification, the decision of the Academic Council and/or the Executive Council. The court held thus:

"If it can be held in accordance with law that because of the ratification of these two bodies, it, for all legal purposes, can be termed as a decision of those two Councils, the validity or otherwise of the decision of Vice- Chancellor and existence or non-existence of the emergency referred to in sec. 11(4) may not arise. The resolution of the Academic Council dated 1.07.1981 and the resolution of Executive Council dated 4.07.1981 are reproduced by us as translated by us. They, once for all, show that these two Councils which are representative bodies affixed their seal of approval so to say to the Page 13 of 35 C/SCA/4529/2014 ORDER action of the Vice-Chancellor, though, in specific terms, these two Councils did not state that they ratified or approved the action of the Vice-Chancellor which culminated in the circular dated 19.06.1981. Their resolutions once for all and very unequivocally show that these two Councils were in full know of what the Vice- Chancellor had done and that they had taken the subsequent requisite steps to deal with the consequences of the decision of the Vice-Chancellor. This, in our opinion, must necessarily show that the Vice-Chancellor's decision had come to be at any rate ratified by those two bodies."

It was submitted that, therefore, it is apparent that the Executive Council was in full know of what the Vice-Chancellor had done and hence, the same clearly shows that the said body had clearly ratified the decision of the Vice-Chancellor.

8.2 Next, it was submitted that it is not the case of the petitioners that the new answer key is not correct nor is it in dispute that grievance was made with regard to the errors in the original answer key. Moreover, it is not the case of the petitioners that for the benefit of an individual candidate, action has been initiated. It was pointed out that as a result of the revised scores, 951 candidates have got benefit. Reliance was placed upon the decision of the Supreme Court in the case of Manish Ujwal v. Maharishi Dayanand Saraswati University, (2005) 13 SCC 744, wherein the student community had filed a writ petition before the High Court challenging their ranking in the entrance tests which were conducted by the Maharishi Dayanand Saraswati University for admission to medical and central courses in the various colleges in the State of Rajasthan. The grievance of the students was that various key answers on the basis whereof the answer-sheets were evaluated were wrong and, Page 14 of 35 C/SCA/4529/2014 ORDER consequently, wrong and erroneous ranking was prepared. The court observed that there was no dispute that six key answers were demonstrably wrong and the said fact had not been questioned by the learned counsel for the University. The court observed that the students cannot be made to suffer for the fault and negligence of the University. Taking note of the fact that the key answers were palpably and demonstrably erroneous, the court held that in that view of the matter, the student community whether the appellants or the interveners or even those who did not approach the High Court or the Supreme Court, cannot be made to suffer on account of the errors committed by the University. The court, accordingly, directed re-evaluation of the questions by feeding correct answers and further directed that on that basis, correct number of marks obtained by all the students should be assigned and their ranking prepared. Mr. Shelat submitted that, therefore, in the facts of the said case, it was the students who had approached the High Court and thereafter the Supreme Court, with a request that the answer key should be corrected. Whereas in the present case, the University has acted upon the representations made by the students and corrected the errors in the answer key.

8.3 The decision of this court in the case of (Dr.) B.D. Parmar v. Vice-Chancellor, South Gujarat University and Others, 1994 (1) GLH 85, was cited in support of the submission that the Vice-Chancellor had rightly exercised powers under section 11(4)(a) of the Act. Reliance was also placed upon the decision of the Supreme Court in the case of Indian Railway Construction Company Ltd. v. Ajay Kumar, AIR 2003 SC 1843, for the proposition that to arrive at Page 15 of 35 C/SCA/4529/2014 ORDER a decision on "reasonableness", the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the principles referred to therein and must have been a bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view. It was submitted that, therefore, as suggested by the learned advocate for the petitioners, there may have been many choices open to the authority but it was for the authority to decide upon the choice and this court in exercise of powers under Article 226 of the Constitution of India would not substitute its view in place of the view of the authorities. The decision of this court in the case of Hetalkumar B. Shah v. Maharaja Sayajirao University and Another, 1993 (2) G.L.H. 691, was cited wherein the petitioner therein had been selected for provisional admission to IIM's Post Graduate Programme in Management for the session beginning from 29 th June, 1992 subject to the conditions mentioned in the letter. One of the conditions was that the petitioner should submit a certificate from the Registrar issued before 29th June, 1992 that the petitioner had completed all the requirements such as theory and practical examinations for obtaining the Bachelor's degree, if the petitioner was in the final year of the Bachelor's degree course at the time of applying for the course of Post Graduate Programme in Management. It appears that due to agitation by the students, the final examination was delayed and was scheduled to be held on 6th July, 1992 and hence, it was not possible for the petitioner therein to submit the Page 16 of 35 C/SCA/4529/2014 ORDER certificate from the Registrar of the University that he had completed all the requirements for appearing in final B.E. Degree examination, including practicals, in all subjects required for obtaining Bachelor's degree. He, therefore, approached the Institute of Management to permit him to join the course beginning from 29th June, 1992; however, the respondents expressed their inability to accommodate the petitioner. It was contended before the court that the action of the Institute of Management in not relaxing the conditions in favour of the petitioner was unreasonable. The court held that the purpose of judicial review was to ensure that the individual receives fair treatment, and not to ensure that the authority after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court. Under Article 226, this court would have no jurisdiction to sit in appeal against the decision of the autonomous body not to relax the condition in favour of the petitioner. It was held that the court must not usurp the discretion of the public authority which is empowered to take its own decision. The learned counsel, accordingly, urged that the University having taken a decision in exercise of the powers vested in it, there is no warrant for exercise of powers of judicial review to interfere with such decision.

8.4 It was further pointed out that the Supreme Court has fixed the Schedule for admissions to Post Graduate Medical Courses for the academic session 2014-2015 and hence, there was urgency in taking a decision on correction of the answer key.

Page 17 of 35 C/SCA/4529/2014 ORDER

9. Mr. G.M. Joshi, learned advocate appearing on behalf of the respondent No.6 reiterated the submissions advanced by Mr. S.N. Shelat, learned counsel for the University and submitted that the University was justified in taking a decision which has benefited majority of the students. It was submitted that the decision to correct the answer key was taken after consulting experts in the field and that this court would be slow in interfering with matters where experts have taken a decision. Reliance was placed upon an unreported decision of a Division Bench of this court in the case of Durgeshkumar Shukla v. Institute for Post Graduate Teaching and Research rendered on 30th September, 2011 in Special Civil Application No.13506/2011 wherein the court had held that it is by now well-settled by various decisions of the Supreme Court that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by courts in the exercise of their power under Article 226 of the Constitution of India or by the Supreme Court under Article 136 or 32 of the Constitution. The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law has to be interpreted, applied or enforced, with reference to or in connection with education, courts will step in. The court placed reliance upon the decision of the Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27, for the proposition that the court should be extremely reluctant to substitute its own views as to what is wise, prudent or proper in relation to academic matters in Page 18 of 35 C/SCA/4529/2014 ORDER preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and the departments controlling them.

10. Mr. Mrugen Purohit, learned advocate appearing for the Medical Council of India drew the attention of the court to the schedule for admission as fixed by the Supreme Court to submit that the same is required to be strictly adhered to.

11. Ms. Shivani Rajpurohit, learned advocate for the respondents No.7 to 15 reiterated the submissions advanced by the learned counsel for the University. It was submitted that the Vice-Chancellor is duly empowered by the Act and the rules to take appropriate action in an emergency situation. It was submitted that no malice has been attributed to any particular authority and the corrected answer key uniformly applies to all the students and hence no discriminatory treatment has been meted out to any of the students and therefore, there is no violation of Article 14 of the Constitution of India. Reliance was placed upon the decision of the Supreme Court in the case of Sahiti and Others v. Dr. N.T.R. University of Health Sciences, (2009) 1 SCC 599, wherein the court while considering the provisions of section 12(2) and 12(3) of Dr. NTR University of Health Sciences Act, 1986, observed that a conjoint and meaningful reading of the said provisions makes it evident that the Vice-Chancellor has powers to take appropriate action relating to the affairs of the University, which includes conduct of examination also. The Vice-Chancellor is the conscious keeper of the University. He is the principal executive and academic officer of the University.

Page 19 of 35 C/SCA/4529/2014 ORDER

He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs. For these purposes, the Act confers both express and implied powers on the Vice-Chancellor. The court turned down the plea that in the absence of a specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts, the judgment impugned should not be interfered with. The court held that re- evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible and that in such cases, what the court should consider is whether the decision of the educational authority is arbitrary, unreasonable, malafide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the court should show due regard to the opinion expressed by the authority. It was submitted that the said decision would be squarely applicable to the facts of the present case.

12. In rejoinder, Mr. Riddhesh Trivedi, learned advocate for the petitioners has submitted that in the revised answer key, in relation to some questions, more than one answer are correct. It was submitted that when more than one answer are correct, a student may refrain from answering the question as giving a wrong answer entails negative marking. According to the learned counsel, if such student had known that more than one correct answer is to be taken into consideration, he would have attempted the question. Thus, correction of the answer key subsequently causes immense prejudice to such students and hence, in such cases, the question itself ought not to have been taken into consideration and ought to have been deleted.

13. In the backdrop of the facts and contentions noted Page 20 of 35 C/SCA/4529/2014 ORDER hereinabove, the central question that arises for consideration is as to whether the respondent University was justified in correcting the answer key and declaring the result by publishing the revised scores on the basis of such revised answer key.

14. The facts are not in dispute. The Post Graduate Medical Entrance Test, 2014 came to be held by the Gujarat University on 25th January, 2014. The total scores along with the answer key came to be published on the same date. The respondent University revised the answer key on 21 st March, 2014 and on the basis of such revised answer key, published the revised scores on the same date on its website. As a result thereof, the first petitioner's score that was shown as 261 (unrevised) was enhanced to 271 after being revised and the second petitioner's score which was 203 (unrevised), was reduced to 195.50 after being revised. On behalf of the petitioners, it has been contended that in the light of rule 7.1(A)(5) of the Admission Rules, there is no provision for re- checking/re-evaluation of the answer-sheets. Moreover, as per the said rule, no query in this regard is required to be entertained and hence, it is not permissible for the respondent University to carry out re-evaluation and re-checking of mark- sheets when there is a specific bar against the same.

15. At this juncture, reference may be made to section 11 of the Gujarat University Act which makes provision for the powers of the Vice-Chancellor. Sub-section 4(a) thereof provides that in any emergency which, in the opinion of the Vice-Chancellor requires that immediate action should be taken, he shall take such action as he deems necessary and Page 21 of 35 C/SCA/4529/2014 ORDER shall at the earliest opportunity thereafter furnish information regarding his action to such officer, authority or body as would have in the ordinary course dealt with the matter.

16. On a plain reading of the above provision, it is apparent that the Vice-Chancellor is empowered to take such action as he deems necessary in any emergency. After taking such action, the Vice-Chancellor is required to furnish information regarding his action at the earliest opportunity to such officer, authority or body as would have in the ordinary course dealt with the matter. Ordinance 146 of the University Ordinances & Regulations provides that in any case, where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, it shall be competent for the Executive Council to cancel or amend such resolution in such manner as shall be in accordance with the true position and to make such declaration as the Executive Council may in its discretion consider necessary in that behalf subject to Ordinance Nos. 137 and 147. No result shall be cancelled or amended after the expiration of six months from the date of publication of the result by the University. Therefore, the power to cancel or amend a result where the result of an examination has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, is vested in the Executive Council of the University. Accordingly, in view of the provisions of sub-section 4(a) of section 11 of the Act, the Vice- Chancellor, after taking action in respect of correction of answer key and revising the score-sheets, was at the earliest opportunity required to furnish the information regarding his action to the Executive Council.

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17. In the present case, pursuant to the declaration of the results of the entrance examination held by the University, various representations were received from students regarding some of the answers in the answer key being incorrect. It appears that at the relevant time, when the representation was received, the Pro Vice-Chancellor was in charge, however, the Vice-Chancellor had already been selected. The Pro Vice- Chancellor, therefore, thought it fit to defer the matter till the Vice-Chancellor, Dr. Patel, took over. The Vice-Chancellor after taking charge, consulted the Faculty of Medicine and was of the opinion that if there are errors as suggested by the students which would affect their academic interest, it was the duty of the University to take appropriate steps in that regard. Therefore, the Vice-Chancellor, as noted earlier, directed that under the guidance of the Chairman of the Admission Committee, steps be taken to make necessary changes in the answer key as per the opinion of the experts in the different subjects and to declare the result in accordance with the rules. The submission that the Vice-Chancellor has not passed any order in writing, therefore, is contrary to the record of the University, inasmuch as, the record produced before the court clearly reveals the decision in writing taken on file by the Vice- Chancellor as aforesaid. After taking the above decision, a meeting of professors and teachers of various disciplines of the Faculty of Medicine was held which was attended by 43 expert teachers in different subjects. Pursuant to the advice tendered by them, the Vice-Chancellor directed that the previous scoring may be revised after the mistakes in the answer key are corrected by the experts. Accordingly, based upon the opinion of the experts in each subject, the answer key came to be Page 23 of 35 C/SCA/4529/2014 ORDER revised and the score-sheets were revised accordingly in terms of the corrected answer key. Based on the revised scoring, a merit list came to be prepared and further process as per the schedule fixed by the Supreme Court came to be conducted.

18. On behalf of the petitioners, it has been sought to be contended that there was no emergency situation warranting such drastic action by the Vice-Chancellor without giving the affected students an opportunity of hearing. In this regard, it may be noted that the Supreme Court has fixed the schedule for admission to Post Graduate Medical Courses for the academic session 2014-2015. The University is required to strictly abide by the said schedule. Therefore, prompt action was required to be taken by the University as otherwise it would not have been possible to adhere to the schedule fixed by the Supreme Court. Under the circumstances, it cannot be said that there was no urgent situation so as to warrant exercise of powers under section 11(4)(a) of the Act.

19. The question that arises for consideration is as to whether in the light of rule 7.1(A)(5) of the rules, which postulates that there is no provision for re-checking/re- evaluation of the answer-sheets and that no query in this regard be entertained, it was permissible for the respondent University to correct the answer key and to re-evaluate the answer-sheets accordingly. In the opinion of this court, as rightly submitted by the learned counsel for the University, the above referred provision would be applicable where an individual student comes up with a request for re-checking/re- evaluation of his answer-sheets in which case, the provisions of rule 7.1(A)(5) of the Admission Rules would be attracted.

Page 24 of 35 C/SCA/4529/2014 ORDER

However, in a case of this nature, namely, where there are errors in the answer key which affect the academic careers of the student community as a whole, the above referred provision would not be attracted. In the present case, the Vice- Chancellor has exercised his powers under section 11(4)(a) of the Act which duly empowers him to take such action as he deems necessary in case of any emergency. In the light of the fact that the schedule fixed by the Supreme Court for admission to Post Graduate Medical courses was required to be adhered to, there was a situation of an emergency, inasmuch as, on the one hand, it was brought to the notice of the Vice- Chancellor that there were several errors in the answer key and consequently, though the students had given the correct answers, the same had been marked incorrect because of such errors in the answer key. Hence, prompt action was required to be taken by the Vice-Chancellor to correct the error committed by the University, failing which immense prejudice would have been caused to the student community as a whole. As held by the Supreme Court in the case of Sahiti v. Dr. NTR University for Health Sciences (supra), the Vice-Chancellor has emergency powers to deal with any untoward situation. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course, he is not competent to take that action. However, he must report to the authority or body concerned, which would, in the ordinary course, have dealt with the matter. The court turned down the plea that in absence of specific provision enabling the Vice-Chancellor to order re-evaluation of answer scripts, no such evaluation can be made. The court held that re-evaluation of answer scripts in the absence of specific provision is perfectly legal and Page 25 of 35 C/SCA/4529/2014 ORDER permissible. In such cases, what the court should consider is whether the decision of the educational authority is arbitrary, unreasonable, malafide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the court should show due regard to the opinion expressed by the authority.

20. In Guru Nanak Dev University v. Saumil Garg, (2005) 13 SCC 749, the Punjab Medical Entrance Test was conducted by the University on 30 th June, 2005. About 10,000 students appeared in the said test. The results were declared on 2nd July, 2005. There were 200 questions in the objective form - 50 each for Physics, Chemistry, Botany and Zoology. There were multiple choice answers; four options were available to the students. They had to opt for one correct answer from A to D. After declaration of the results, a writ petition came to be filed by some of the students, inter alia, alleging that the key answers to 21 questions were incorrect. The High Court appointed the Central Board of Secondary Education to examine the correctness of the key answers of the said 21 questions. The CBSE submitted a report opining that ten key answers out of the 21 referred were incorrect. The High Court came to the conclusion that the key answers in respect of all the 200 questions deserve to be re-examined. The University approached the Supreme Court. The Supreme Court, inter alia held thus:

"10. Having regard to the facts and circumstances of the case, in particular, the stage of the admissions and the fact that the medical courses are supposed to commence on 1st August every year and the last date of admissions for stray seats under all circumstances is 30th September, we do not think appropriate that all the 200 questions deserve to be Page 26 of 35 C/SCA/4529/2014 ORDER referred for determining as to what are the correct key an- swers. At this stage, it would also not be appropriate to refer to the opinions given by other professors in these mat- ters as to correctness of key answers.

11. What is paramount is the interest of the student community. Merit should not be a casualty. We feel that the interests of the students would be adequately safeguarded if we direct the appellant University to revaluate the an- swers of the aforesaid eight questions with reference to the key answers provided by CBSE and the University of Delhi which are same and not with reference to the key answers provided by the appellant University."

21. In Rajesh Kumar v. State of Bihar, (2013) 4 SCC 690, the Supreme Court at the outset observed that "Application of an erroneous "model answer key" for evaluation of answer scripts of candidates appearing in a competitive examination is bound to lead to erroneous results and an equally erroneous inter se merit list of such candidates." In the facts of the said case, applications were invited by the Bihar State Staff Selection Commission from eligible candidates for appointment against posts of 2268 posts of Junior Engineer (Civil). The selection process comprised of a written objective type test. The Staff Selection Committee drew up a select list of 210 successful candidates. The evaluation of the answer scripts was assailed by 13 unsuccessful candidates. In the writ petition filed before the High Court, a learned Single Judge referred the "model answer key" to experts who found several such answers to be wrong. The learned Single Judge held that the entire examination was liable to be cancelled and so also the appointments made on the basis thereof. In the letters patent appeal preferred before the Division Bench, the order passed by the learned Single Judge came to be modified by holding that the entire Page 27 of 35 C/SCA/4529/2014 ORDER examination need not be cancelled and a fresh examination in Civil Engineering Paper only, was sufficient to rectify the defect and prevent injustice to any candidate. The Supreme Court held thus:

15. xxxxxxx The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the "model answer key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "model answer key"

was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "model answer key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions con- tained in 'A' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defect- ive the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, there- fore, perfectly justified in holding that the result of the ex- amination insofar as the same pertained to 'A' series ques- tion paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advant- age over others by application of an erroneous key."

"17. Mr. Rao next argued that even if the result of the first selection process was vitiated by the use of erroneous "model answer key" the Court had the option of either dir- ecting re-evaluation of the answer scripts on the basis of a correct key or a fresh examination. Out of the two options the former was, according to Mr. Rao, better and ought to have served the purpose by not only saving considerable time but money and effort also. He urged that the Court Page 28 of 35 C/SCA/4529/2014 ORDER could have removed the traces of any injustice or distor- tions in the selection process by directing re-evaluation of the answer scripts which would not only present the true picture of the merit of the candidates concerned but pre- vent any further litigation or prejudice to candidates on ac- count of long lapse of time."

"19. The submissions made by Mr. Rao are not without merit. Given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circum- stances, no compelling reason for directing a fresh examin- ation to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh attempt by all concerned. The process of re-evaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from be- ing quicker. The process would also not give any unfair ad- vantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case."

22. In all the above decisions the correction of the answer key has been upheld by the Supreme Court, on the ground that the interest of the student community is paramount and merit should not be a casualty. Needless to state that if the wrong answer key is applied the same is bound to lead to erroneous results as is evident in the present case wherein 951 candidates benefitted as a result of applying the corrected answer key. In the facts of the present case, it is not in dispute that the answer key contained certain incorrect answers. Therefore in the interest of the student community as a whole, and to ensure that merit is not a casualty, the Vice-

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Chancellor was justified in exercising emergency powers to deal with such a situation and to take steps to see that the error is rectified.

23. The question that arises for consideration is as to whether the decision of the Vice-Chancellor under section 11(4)(a) of the Act contravenes the provisions of rule 7.1(A)(5) of the Admission Rules. In the opinion of this court, as rightly submitted by the learned counsel for the University, rule 7.1(A) (5) would operate in a case where an individual student comes with an application for re-checking/re-evaluation of the answer- sheets in which case, the University would be justified in not entertaining any such a request. However, in a case of the present magnitude where the answer key itself contained several wrong answers, it was the duty of the Vice-Chancellor to take appropriate action in that regard and to rectify such error committed by the University. On account of the error committed by the University, the students cannot be made to suffer nor can merit be given a go-bye. Therefore, no fault can be found in the action of the respondent University in taking necessary steps to rectify the error committed by it and in correcting the answer key and revising the score-sheets on that basis.

24. As regards the contention that the decision of the Vice-Chancellor has not been ratified or approved by the Executive Council, it may be germane to refer to the minutes of the meeting of the Executive Committee held on 9 th May, 2014. Item No.2 thereof, as translated into English reads thus:-

"2. The action approved by the Vice-Chancellor as below Page 30 of 35 C/SCA/4529/2014 ORDER (for information) 2(1) After declaration of the results of the PG Medical Entrance Examination of the batch for the year 2014, in the context of representation made by students for re- checking of certain questions in respect of which wrong answers were given, under the guidance of the Chairman of the Admission Committee, experts in different subjects were called and necessary changes were made in the answer key and results were declared in accordance with the rules."

Below which the Executive Committee has resolved that it has taken note of the above action approved by the Vice- Chancellor. According to the learned counsel for the petitioners, the Executive Council has neither approved nor ratified the action taken by the Vice-Chancellor and hence, there is no due compliance with the provisions of sub-section 4(a) of section 11 of the Act, inasmuch as, the Executive Council has only taken note of the action taken by the Vice- Chancellor.

25. In this regard, it may be germane to refer to the decision of a Division Bench of this court in the case of Sonal V. Shah v. Gujarat University (supra) wherein the court has held thus:

"11. The question that now arises for decision is whether the circular letter Annexure 'B' dated 19.06.1981 issued by the Vice-Chancellor of the University remains to be his decision or whether it had come to be by ratification the decision of the Academic Council and/or the Executive Council. If it can be held in accordance with law that because of the ratification of these two bodies, it, for all legal purposes, can be termed as a decision of those two Councils, the validity or otherwise of the decision of Vice- Chancellor and existence or non-existence of the emergency referred to in sec. 11(4) may not arise. The resolution of the Academic Council dated 1.07.1981 and Page 31 of 35 C/SCA/4529/2014 ORDER the resolution of Executive Council dated 4.07.1981 are reproduced by us as translated by us. They, once for all, show that these two Councils which are representative bodies affixed their seal of approval so to say to the action of the Vice-Chancellor, though, in specific terms, these two Councils did not state that they ratified or approved the action of the Vice-Chancellor which culminated in the circular dated 19.06.1981. Their resolutions once for all and very unequivocally show that these two Councils were in full know of what the Vice-Chancellor had done and that they had taken the subsequent requisite steps to deal with the consequences of the decision of the Vice-Chancellor. This, in our opinion, must necessarily show that the Vice- Chancellor's decision had come to be at any rate ratified by those two bodies."

In the light of the above decision, it is apparent that when the Executive Council is in full know of the action taken by the Vice-Chancellor, the same would necessarily show that the decision of the Vice-Chancellor has been ratified by it.

26. On an overall view of the facts of the present case, in the opinion of this court, on account of an error committed by the University, the students could not have been made to suffer. The Vice-Chancellor upon the same being brought to his notice was, therefore, wholly justified in taking prompt action in that regard by resorting to the powers vested in him under sub-section 4(a) of section 11 of the Act and thereafter, placing the action taken by him before the Executive Council which has duly taken note of the same. The provisions of rule 7.1(A) (5) would not come in the way of the Vice-Chancellor in exercising powers under sub-section (4)(a) of section 11 of the Act in the light of the fact that the present case does not pertain to an individual student coming before the University for re-evaluation or re-checking. The present case involves an error committed by the University which was required to be Page 32 of 35 C/SCA/4529/2014 ORDER rectified by the University and which clearly falls within the ambit of Ordinance 146 of the University.

27. The record of the case reveals that the respondent University after following due procedure in accordance with law, has after obtaining the opinion of experts, corrected the answer key and revised the score-sheets accordingly. Therefore, no infirmity can be found in the impugned action of the University so as to warrant interference.

28. A contention has been raised by the learned counsel for the petitioners that instead of revising the score- sheet by correcting the answer key, the University should have obtained the opinion of experts from AIIMS or some other reputed University. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, it is not even the case of the petitioners that the answer key was not erroneous as suggested by the students before the Vice- Chancellor. Under the circumstances, in the absence of any infirmity being pointed out in the corrections made in the answer key, merely because local experts were consulted would not render the entire exercise carried out for correction of the answer key, invalid.

29. As regards the contention that instead of considering the marks of the P.G. Medical Entrance Examination, the University could have taken into consideration the marks obtained at the All India Entrance Examination, the same also does not merit acceptance for the reason that the rules of University specifically provide that it would be the marks that are obtained at the P.G. Medical Page 33 of 35 C/SCA/4529/2014 ORDER Entrance Examination that would be taken into consideration. Therefore, taking into consideration the marks obtained at the All India Entrance Examination would be contrary to the admission rules of the University. Moreover, as held by the Supreme Court in the case of Indian Railway Construction Company Ltd. v. Ajay Kumar (supra), to arrive at a decision on "reasonableness", the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of law, and not one which no sensible person could have reasonably arrived at and must be a bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon their choice and not for the court to substitute its view. Therefore, it was for the University to decide as to which course of action was required to be adopted in the light of the errors in the answer key and it is not for this court to substitute its view and decide upon the choice made by the University. Besides, the Supreme Court in the case of Rajesh Kumar v. State of Bihar (supra) has observed that given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re-evaluated on the basis thereof, which is exactly what has been done in the present case. The action taken by the respondent University, therefore, stands fortified by the above decisions.

30. In the light of the above discussion, this court is of the view that there is no infirmity in the action taken by the respondent University so as to warrant interference. The Page 34 of 35 C/SCA/4529/2014 ORDER petition, therefore, fails and is accordingly dismissed with no order as to costs.

( Harsha Devani, J. ) hki Page 35 of 35

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