Km. Asma Anjum vs Controller Of Examination For ... on 6 August, 2010

[Cites 6, Cited by 1]

Allahabad High Court

Km. Asma Anjum vs Controller Of Examination For ... on 6 August, 2010

Bench: Bala Krishna Narayana

1
                                                              RESERVED



             Civil Misc. Writ Petition No. 57257 Of 2008.
Km. Asma Anjum                                       ...............Petitioner.
                                 Versus
Controller of Examinations and others             .............Respondents.
                                 .............


Hon'ble Bala Krishna Narayana, J.

Heard Sri Ravi Kiran Jain, learned Senior Counsel, assisted by Sri Rahul Sripat, learned counsel appearing for the petitioner and Smt. Sunita Agrawal, learned counsel appearing for the respondent- University and perused the record.

Pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this writ petition is being finally disposed of at the admission stage.

The facts of the case as emerging from the pleadings of the parties are that the petitioner who claims herself to be an extremely meritorious candidate having bright academic record, appeared in the 2008-09 admission test for M. B. B. S. / B. D. S. Courses conducted by the Controller of Examinations, Aligarh Muslim University (hereinafter referred to as 'the University') for making admissions to M. B. B. S. / B. D. S. Courses 2008-09 on 26.5.2008. The result was declared on 1.6.2008. The name of the petitioner did not appear in the select list, although, the petitioner had performed extremely well in the admission test and she was fully hopeful of procuring admission in the aforesaid course. Since the petitioner suspected some irregularities in the evaluation of her answers, she applied before the Registrar of the Central Public Information Officer (hereinafter referred to CPIO), Aligarh Muslim University seeking following informations;-

1. Marks obtained by the lowest position holder in the list of candidate selected for MBBS 2008-09, in Aligarh Muslim University.

2. Marks obtained by the lowest position holder in the list of selected candidates for BDS 2008-09, in Aligarh Muslim University.

3. Marks obtained by the lowest position holder candidate in the chance memo of MBBS 2008-09, in Aligarh Muslim University.

4. Marks obtained by the lowest position holder candidate in the chance memo of BDS 2008-09, in Aligarh Muslim University.

5. Marks obtained by the petitioner (Roll No. 249946) with name and detail of subjects in entrance examination for MBBS/BDS 2008-09, in Aligarh Muslim University"

This was followed by another application dated 2.6.2008 addressed to CPIO making following request:

1. Photocopy of both sides of OMR Sheet filed and submitted by petitioner (Roll No. 249946) in her entrance examination of MBBS/BDS 2008 held on 26.5.2008 and result already declared last night.

2. Photocopy of the question booklet given to the petitioner (Roll No. 249946) during her entrance examination of MBBS/BDS 2008 held on 26.5.2008 and result declared last night.

3. Correct Answers key to the question booklet given to the petitioner (Roll No. 249946) during her entrance examination of MBBS/BDS 2008 held on 26.5.2008 and result whereof was declared 3 on 26.5.2008."

Similar applications followed before the CPIO on 20.6.2008 and 21.6.2008.

On 7th July, 2008 reply was received from the CPIO and the Assistant Controller (Admission), Office of Controller of Examinations which is extracted hereinbelow:-

Photocopy of both sides of OMR We cannot provide this document filled and submitted by me without approval of the academic (Name: Asma Anjum, Roll No. bodies of the University. Your 249946) in my entrance application is being sent to the examination of M. B. B. S. / B. D. Registrar under Section 5 of the S. 2008 held on 26.5.2008 and RTI Act.

result already declared.

Thereafter the petitioner approached the Central Information Commission, New Delhi (hereinafter referred to as the 'Commission') by means of an application with the following prayer:-

"This information is very important to me as all my further planning with respect to Choice of career depends on this information.

I apprehend that some discrepancies in the computation of result or there are serious malpractices / malafide wrong doing of the staff/officials of the admission section of the examination. Which is trying to conceal by withholding from disclosure. There have been serious lapses earlier too in the examination process conducted by AMU relvealed in enquiries.

On these grounds and in the interest of justice, I request Commission to kindly consider hearing my appeal on urgent basis so that if the Commission decides to disclose the information, I may not be late to secure admission."

Ultimately the matter was finally decided by the Commission in the following terms:-

DECISION NOTICE Our ruling in our decision of 23.4.2007 has been quoted above. We have in this case already found that the disclosure of evaluated answer sheets in such cases as the present one is unlikely to render the system unworkable. We have in fact held that our decision in case of application of exemption in most examinations will mutatis mutandis apply in the case of an examination conducted with Optical Marking System. But the category in which we have placed the Universities would also fall within the category of exemption from disclosure under the above decision.

However, we may, at this stage, clarify that the decision above with regard to Universities was with reference to University examinations and not examinations governing admissions. In such cases, the principle that we have applied to the departmental examinations will also apply in this case since the number of examinees is limited. In such case, the following would be the pertinent rationale as per the above decision:

"The rationale of the judgements of the Supreme Court may not be applicable in their totality, as in arriving at their conclusions, the above judgments took into consideration various facts like the large number of candidates, the method and criteria of selection of examiners, existence of a fool proof system with proper checks and balances etc. Therefore, in respect of these examinations, the disclosure of the answer sheets shall be the general rule but each case may have to be examined individually to see as to whether disclosure of evaluated answer sheets would render the system unworkable in practice. If that be so, the disclosure of the evaluated answer sheets could be denied but not otherwise."

In the present case no argument has been brought before us to state that such a disclosure would render the system unworkable. The decision of this Commission cited by respondents is in itself in favour of disclosure. The plea taken is only that such disclosures have not yet been approved by the Academic Council. The Academic Council of a University falls squarely under the law insofar as the RTI Act is concerned. The information sought by appellant in the present case is, therefore, not exempt from disclosure, as per our ruling in the Complaint No. CIC/WB/C/2006/00223, Appeal Nos.

CIC/WB/A/2006/00469 & 00394 and Appeal Nos.

CIC/OK/A/2006/00266/00058/00066/00315 dated 23.4.2007.

In this matter since we find that the information is disclosable, we have not discussed the ruling of the Hon'ble High Court of Calcutta, in W. P. No. 22176 of 2007, even though we have quoted from it extensively, since in our view it is not of direct bearing to the present complaint. The appeal is therefore allowed. The information sought in all three categories will be supplied to appellant Ms. Anjum within then working days of receipt of the Decision Notice Reserved in the hearing, this decision is announced in the open Court on 23rd September, 2008.

Notice of this decision be given free of cost to the parties."

Pursuant to the aforesaid order dated 7.10.2008 the following material was supplied by the University to the petitioner:-

1. photocopy of the question paper supplied to the candidate who appeared at the examination.

2. photo attested copy of the OMR (Optical Mark Reader) answer-

sheet.

3. photocopies of the documents claiming to be the correct answer keys."

Upon going through and perusing O. M. R. of the petitioner as well as chart of key-answers provided by the University it transpired that the key-answers of several questions shown in the chart were patently incorrect. Reference in this regard, may be made to the key- answers to question Nos. 9, 35, 65, 84, 85, 87, 92, 96, 115, 118, 155, 157, 158, 162 and 185.

According to the petitioner, if the answers given by the petitioner to the aforementioned questions are treated to be correct answers, the petitioner shall qualify for admission to the M. B. B. S. / B. D. S. Courses, 2008-09. Hence, the instant writ petition was filed by the petitioner for issuing a writ of mandamus for the following reliefs:

1. to issue a writ, order or direction in the nature of MANDAMUS commanding the respondents directing them to admit the petitioner in MBBS/BDS Course 2008-09 on the basis of the correct answer key by her as per the answer sheet available as Annexure No.....holding that the answer to questions Nos. ...........are incorrect as is evident from the authentic textbook version as well as report of the experts given and/or pass any other/further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

2. to issue a writ, order or direction in the nature of MANDAMUS commanding the respondents directing them to give admission to the petitioner in MBBS/BDS Course 2008-09 held on 26.5.2008 conducted by the Respondent No. 1.

3. to issue a writ, order or direction in the nature of MANDAMUS 7 commanding the respondents directing them to pass the order for the admission of the petitioner in MBBS/BDS Course 2008-09 held on 26.5.2008 conducted by the Respondent No. 1 in pursuance to the representation dated 24.10.2008.

4. to issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

5. Allow this writ petition with special costs in favour of the petitioner, throughout."

In the counter affidavit and the various affidavits filed on behalf of the University it has been stated that the key-answers to all the questions including 15 disputed questions are correct and the contention of the petitioner that the key-answers to the 15 disputed questions are incorrect, is baseless and totally mis-conceived. The University has also taken the stand in its counter affidavit that the entire exercise to find out the correct answers was within the realm of experts and the Court cannot travel beyond that and undertake an exercise of finding out the correct answers.

It is undisputed that the last admitted candidate to the M. B. B. S. Course had secured 93.75 marks and the last admitted candidate to the B. D. S. Course had obtained 88 marks and the score of the petitioner is 81 marks and if the petitioner succeeds in establishing that the key-answers to the nine questions are incorrect and the answers given by the petitioner to atleast nine questions are correct, she may be admitted to B. D. S. Course-2010.

This Court passed a detailed order after considering the detailed 8 submissions advanced by counsel for the parties. The relevant extract of the said order dated 4.11.2009 is reproduced below: Hon'ble A. P. Sahi, J.

The Court had called upon the learned counsels to clear the position of law as to the ambit and extent of the powers of this Court under Article 226 of the Constitution of India to deal with such matters which substantially arise out of a matter relating to academic excellence. Shri Ravi Kiran Jain, learned senior counsel appearing on behalf of the petitioner and Shri Rahul Sirpat have cited the decision in the case of Kanpur University and State of U.P. Versus Samir Gupta and others reported in AIR 1983 SC 1230 followed by the Hon'ble Apex Court in the case of Abhijit Sen and others Vs. State of U.P. and others reported in AIR 1984 SC 1402 to substantiate their plea that the present petition is entertainable and this Court has wide powers under Article 226 of the Constitution of India to proceed to examine the nature of the dispute as on the facts of this case. They contend that it is evident that the respondent-University has provided wrong key answers, which has prejudiced the entire career of the petitioner. They also cited the decision in the case of Manish Ujwal and others Vs. Maharishi Dayanand Saraswati University and others Mahni reported in (2005) 13 SCC 744 to substantiate their submissions. Apart from this, the learned counsel for the petitioner have also taken the Court through extract of various text-books, which they allege to be the standard form containing knowledge about the subjects relating to the examinations which every students appearing in such examinations is reasonably expected to know. Shri Rahul Sripat has taken the Court through the details of the questions, which are subject matter of dispute, to urge that if the facts as alleged are accepted to be correct, which in his opinion, have been established on record, then the petitioner is entitled to the relief claimed in the petition.

Smt. Sunita Agrawal, learned counsel appearing on behalf of the respondent-University, on the other hand, invited the attention of the Court to the standard form of the text-books that the University relied on and also to the experts opinion which the University had obtained on the dispute having been raised by the petitioner to urge that the key answers as provided by the University were the most appropriate answers and the petitioner has miserably failed to demonstrate anything otherwise in the matter. She contends that neither on facts nor on law the petitioner is entitled to any relief and she has relied on the decisions of the Hon'ble Apex Court in the case of Subash Chandra Verma and others Vs. State of Bihar and others reported in 1995 Supp (1) SCC 325 and the case of Manish Ujwal (supra), which has been relied upon by the petitioner as well. She further invited the attention of the Court to the decision in the case of Guru Nanak University Vs. Saumil Garg and others reported in (2005) 13 SCC 749 and contends that the judgments in the cases of Kanpur University and State of U.P. Versus Samir Gupta and others and Abhijit Sen and others Vs. State of U.P. and others (supra) have been clearly explained in the subsequent decisions to the effect that this entire exercise to find out the correct answers falls within the realm of experts and that the Court cannot travel beyond the same and take upon itself the exercise of finding out the correct answers. She contends that even if the Court has a doubt about the correctness or otherwise of the answers then the course suggested by the Hon'ble Supreme Court in such matters is to appoint a body of experts, who are experts in the field and who are supposed to be the only persons capable of finding a solution in respect of such allegations. She contends that this Court may not comment upon the correctness or otherwise of the expert opinion relied on by the University as they are expert of their fields.

Having considered the submissions the first issue needs to be answered in the light of the decisions which have been rendered by the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Kanpur University and State of U.P. Versus Samir Gupta and others (supra) made the aforesaid proposition by the following observations in paragraphs 16 and 17 thereof.

"16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is provided to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U.P. those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.

17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance test for admission to the Medical Colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is deprived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords 11 with the key answer, that is to say, with an answer which is demonstrated to be wrong.

Again in the case of Abhijit Sen (supra) the Hon'ble Supreme Court in the opening paragraph had to state as under:

"...... Suffice it to say that this Court has expressed therein a clear and categorical view that if the 'Key-answer' (i.e. the answer which the paper-setter has supplied to the University as the correct answer and which has been fed into the Computer) is shown to be demonstrably wrong, that is to say, such as no reasonable body of men well versed in the particular subject would regard it as correct and, if the answer given by a student is correct if regard be had to acknowledged text- books or books which the student was expected to read and consult before appearing for the test it would be unfair to penalise the student for not giving an answer which accords with the 'Key-answer' that is to say with an answer which is demonstrated to be wrong. The contentions raised in the instant appeals will have to be considered within these parameters indicated in the judgment."

The aforesaid pronouncements were made in the context of Pre- medical tests with which we are presently involved. The aforesaid observations of the Hon'ble Supreme Court were again taken into account in the case of Subash Chandra Verma and others Vs. State of Bihar and others (supra), where the Hon'ble Apex Court in paragraph 25 of the judgment observed at page 335 as follows:

"........ Normally Speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or 12 controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise ........"

The position has been further explained in the case of Manish Ujwal (supra) in paragraphs 9 and 10 of the decision, which are quoted below:

"9. In Kanpur University v. Samir Gupta considering a similar problem, this Court held that there is an assumption about the key answers being correct and in case of doubt, the Court would unquestionably prefer the key answers. It is for this reason that we have not referred to those key answers in respect whereof there is a doubt as a result of difference of opinion between the experts. Regarding the key answers in respect whereof the matter is beyond the realm of doubt, this Court has held that it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong. There is no dispute about the aforesaid six key answers being demonstrably wrong and this fact has rightly not been questioned by the learned counsel for the University. In this view, students cannot be made to suffer for the fault and negligence of the University.

10.The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to be six questions given in the key answers were erroneous and incorrect." As already noticed, the key answers are palpably and demonstrably 13 erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in education matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case."

In Guru Nanak Dev University's case, the Court came to the following conclusion in paragraph 11, which is quoted below:

"11. What is paramount is the interest of the student community. Merit 14 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 answers 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.

Upon appraisal of the aforesaid law as reflected in the aforesaid decisions it is certain that the Court's intervention in such matter is not ruled out. It has been found in these cases that the system of such examinations is not infallible. What has been laid down further is that the students should not be put to any disadvantage nor should he or she be penalised for any action of the University where it is demonstrated that the key answers to the questions were wrong and have further resulted in non selection of the candidate. It is, therefore, clear that judicial intervention has been made permissible and in fact judicial review has been under taken to resolve such disputes. The caution which has been sounded in the said decisions is that the Court may not sit as an expert itself to find out the appropriateness of a correct answer by answering the question itself. However, if the Court finds that the answers provided by the University cannot be termed as an appropriate answer on the basis of what a student is reasonably expected to know then in that event upon an opinion to be expressed by either standard text-books or by experts of the fields, arrive at a conclusion upon the facts pleaded. The Court has also indicated the difficulties that arise in such matters when there is a divergence of opinion about the most appropriate answer. It has been held that if the answers provided for by the candidate and by the University, both are not correct then in that event the advantage would go to the University 15 as the students will be presumed to have given a wrong answer. However, the decision in the case of Samir Gupta (supra) and Abhijit Sen Gupta (supra) both rest on the acceptance of the answers as provided for in standard text-books. The later decisions indicate obtaining of experts opinion. In such a situation, it is definite that the Court to that extent can intervene and carry out a judicial review of this intention seeking process to find out as to whether the examining body has provided the most appropriate answer in its key answers or not.

The first issue therefore having been answered in favour of the petitioner, it will have to be assessed on the facts of the present case as to whether the petitioner has been able to establish that there are wrong key answers provided by the University or not. This being a more objective exercise need not detain the Court long. The questions that have been provided with wrong key answers according to the pleadings of the petitioner contained in the writ petition, the rejoinder affidavit and the supplementary affidavit, are question nos. 9, 35, 65, 84, 85, 87, 92, 96, 115, 118, 155, 157, 158, 162 and 185. Learned counsel for the petitioner has also provided a chart in addition to the pleadings made to explain the disparity and infirmity relating to the wrong key answers.

As a prelude to this chapter of the argument, it would be appropriate to record that Smt. Sunita Agrawal, learned counsel for the respondent- University has extensively laboured hard to minimize the efforts of the Court on this issue and has very fairly at the outset stated that the key answers in respect of the question nos. 35 and 158 are wrong. Thus, the dispute now narrows down to the rival contentions in respect of the other 13 questions. Since the petitioner would succeed or fail upon a minimum of five key answers to be demonstrateably wrong, it would be 16 appropriate to point out the rival submissions in respect of the questions on which the learned counsel for the petitioner and the learned counsel for the respondent-University have ably assisted the Court.

The other 13 questions about which the submissions have been raised are question nos. 9, 65, 84, 85, 87, 92, 96, 115, 118, 155, 157, 162 and

185. Question No. 9 - This relates to grafting experiments. Instead of reproducing the question, reference may be had to the same contained in annexure 3 to the writ petition. According to the key answer provided by the University the correct key answer is (c). The petitioner contends that the correct key answer is (d). The petitioner relies on three sources as detailed in annexure 1 to the rejoinder affidavit. Apart from three texts, the petitioner also relies on the expert opinion of five teachers, whose names and opinions are appended in annexure 1 to the rejoinder affidavit and she further contends that the opinion of professor Firoz Ahmad of the Botany Department of the University also supports the same. On the other hand, counter affidavit of the University relies on the opinions of two professors and a Chairman, who vide their communication dated 29th November, 2008 have given their own reasons for supporting the key answer. Learned counsel for the petitioner contends that it is evident that the answer given by the petitioner is reasonably expected to be known whereas the key answer arrives at a conclusion which has a circuitous explanation.

Question No. 65 - This question relates to a drug that produces hallucinations. The key answer provided by the University is (a). The petitioner's contention is that the correct key answer is (d). The 17 petitioner has again relied on the expert opinion of seven teachers and also text books. The University relies on a recital contained in a text book which states "excessive dosage of cocaine causes hallucinations". Learned counsel for the petitioner contends that the text book of National Council of Educational Research and Training (hereinafter referred to as ''the NCERT') for class 12 gives a chart which describes cocaine as a stimulant and not as a hallucinogen. It is submitted that Marijuana by itself creates hallucinations whereas according to the University cocaine would produce hallucinations if it is taken in excess dose. Accordingly, the petitioner contends that the answer which is more nearer to the question is (d) and not (a).

Question No. 84 - This question relates to the effect of high concentrations of two elements described in the said question. The key answer provided by the University is (a) whereas according to the petitioner the correct key answer is (b). For this, the petitioner has relied on the expert opinion of two doctors, whose opinions are indicated in the rejoinder affidavit. It is submitted that the reply of the University is incorrect, inasmuch as, the key answer is sought to be justified on the strength of an additional condition relating to the effect of hormones without discussing and rather awaiting the effect of the hormones on the pathway as required by the question.

Question No. 85 - This relates to the description of certain extensions existing on the intestinal epithelium. The key answer as given by the University is (b) whereas the petitioner contends that it is (a). For this, the petitioner has relied on the text books prescribed for medical students and in particular the recital contends in Medical Physiology by Shri R.J. Bijlani. With the aid of other text books which have been filed along with the rejoinder affidavit, it is submitted that Microvilli has been 18 described as Tiny Projections that give a fuzzy appearance sometimes referred to as the Brush Border. The University relies on the opinion expressed by the experts and it is contended that the key answer provided by the University is correct. A reference to a book has also been made at page 34 of the supplementary counter affidavit to substantiate the submission.

A perusal of these respective answers it would, prima facie, indicate that the contention of the petitioner is not wrong and is very near to the correct answer attempted by her as against the key answer provided for the question.

Question No. 87 - This question has been negatively put as to what is correct. The key answer of the University is (b) whereas the answer attempted by the petitioner is (c). The University relies on the opinion of a teacher of the University and is sought to be supported by a text book on Cytogenetics. The petitioner relies on the standard text book of Principles of Genetics and has also relied on the text book of the NCERT for Class 12.

Question No. 92 - This question relates to the description of a Cell which is not of the category of Macrophage System. The key answer provided by the University is (d) whereas the petitioner contends that it is (c). The petitioner has relied on the text book of Medical Physiology whereas the University relies on a text book of Histology of Ross and Reith.

Question No. 96 - This question relates to an activity of a particular element, the key answer of which according to the University is (c) whereas according to the petitioner the correct answer is (b). Here 19 again the petitioner has relied on the text book of NCERT and other books of medical science to substantiate her position. The supplementary counter affidavit relies on the opinion of one professor Irfan Ahmad and some recitals contained in a text book of Histology by Fawcett. The contention raised by the learned counsel for the petitioner is that the key answer given appears to be not correct and therefore the attempt made by the petitioner deserves to be accepted.

Question No. 115 - This question relates to explaining the reversibility or irreversibility of a change of state. The key answer according to the University is (d). The petitioner's key answer is (a). For this, the petitioner relies on a text book of Physics, which according to her is prescribed for all medical entrance examinations. The University relies on an opinion of the teacher of the University along with a text book, which according to the petitioner confirms that the answer given by the petitioner is correct.

Question No. 118 - This relates to a question about the Travel of Pulses in a particular direction. The key answer of the University is (a) whereas the petitioner's key answer is (b). For this, the petitioner relies on an expert opinion whereas the University relies on the opinion of a Committee chaired by the professor Mohammad Zafar describing the understanding of the petitioner as absurd.

Question No. 155 - This question relates to the understanding of a question on Cubic Geometry. The petitioner contends that the key answer given is (d) whereas the correct answer is (c). For this, the petitioner relies on the text supplied by the University itself in the counter affidavit where according to the petitioner the minimum value is 0.732, which is obviously more than 0.731. Therefore it is contended 20 that the key answer of the petitioner is correct, which is supported by the text book of Chemistry prescribed by the NCERT.

Question No. 157 - This question relates to the increase of potential galvanic cell. Here also the factors which enable the increase of Cell Potential is sought to be supported by the petitioner through text books. The key answer given by the University is (c) whereas the petitioner contends that it is (b). The contention of the petitioner is supported by the text books whereas the University relies on opinion of experts, which according to the petitioner is contradictory.

Question No. 162 - This question relates to a chemical reaction of aldehyde with alcohol in the presence of HCL gas. The key answer given by the University is (a) whereas the petitioner contends that it is

(b). The petitioner has relied on a text book of Organic Chemistry for graduation students by M.K. Jain and S.C. Sharma and has further relied on the opinion of teachers of the Aligarh University itself. The supplementary counter affidavit relies on a text book and the opinion of one Dr. Afaq Ahmad. Learned counsel for the petitioner contends that the explanation given by the University is absolutely tangent and is no where even remotely concerned with the answer.

Question No. 185 - This question relates to an expression of the correct order of a particular bond length of carbon and oxygen. According to the University the key answer is (c) whereas according to the petitioner the correct answer is (d). The petitioner has supported her stand from standard text books and also from certain master guides relating to medical examinations. The University relies on a teacher's opinion, who proceeded to give his opinion about the method by which such order of increase can be explained. The petitioner 21 submits that the key answer is required straight away and the question no where indicates arriving at a conclusion on a particular method.

Having perused the material which has been brought on record, it is evident that the petitioner has been able to demonstrate that in majority of the questions about which the dispute has been raised the petitioner can be prima facie presumed to have attempted the correct answers. However, as contended on behalf of the University by Smt. Sunita Agrawal this opinion can be arrived at only after calling for an expert opinion from an independent third source as indicated in the decisions of the Hon'ble Supreme Court cited by her and then only can a decision be arrived at about the correctness or otherwise of the key answers.

The aforesaid submissions therefore have to be accepted and it is necessary that in view of the position that has emerged the matter does require scrutiny by an expert Committee. Accordingly, this Court constitutes the following Committee to objectively sought out the correct answers in view of the rival submissions aforesaid in respect of the 13 questions indicate hereinabove.

The Committee constituted under this order shall comprise of at least two Professors of eminence to be nominated by the Principal, Moti Lal Nehru Medical College, Allahabad. The petitioner shall obtain a certified copy of this order and file an application before the Principal, Moti Lal Nehru Medical College, Allahabad with a request to constitute the Committee as aforesaid, so that the evaluation is made in respect of the 13 answers as detailed in this order. This order has been passed in the presence of the learned counsel for the parties and the learned Standing Counsel, to which they have no objection. The Principal of the 22 Medical College, Allahabad shall treat this request on behalf of the Court as a urgent necessity keeping in view the career of the petitioner involved relating to her claim of admission in M.B.B.S. Course. It is expected that the Committee shall submit its findings to the Principal, and the Principal, Medical College Allahabad shall provide a copy of the said findings to the petitioner as well as to the Respondent- University, who may file the same along with their affidavits and objections if any before this Court by the date fixed. The petitioner and the respondent-University shall both submit their respective supporting documents before the said Committee within 10 days from today. The Committee may if it so desires call for any explanation from the contending parties or may arrive at its own conclusion based on its own findings keeping in view the rival contentions raised. The Committee shall submit a report within twenty days thereafter as a considerable time has lapsed during the pendency of this petition. This is also desirable in view of the fact that the claim relates to an academic session of the previous year and as such an early disposal of the matter is urgently required. The matter shall now be placed before the Court after the report arrives on 14th December, 2009."

Thus, this Court after being satisfied that the key-answers given by the petitioner to 13 disputed questions prima facie appeared to be correct, on the request of the learned counsel for the parties and keeping in view the settled law on the issue this Court passed an order directing the Allahabad University to constitute a committee comprising at least two professors of eminence to be nominated by the Principal of Moti Lal Nehru Medical College, Allahabad, to objectively seek out the correct answers in view of the rival submissions advanced in respect of 13 questions.

Upon a supplementary affidavit being filed bringing on record the 23 communication of the Principal of the Medical College, Allahabad whereby he had expressed his inability to get the answers to the 15 disputed questions examined, as there were no experts available for the subjects, Physics, Chemistry, Zoology and Botany, this Court on 15.12.2009 passed an order after impleading the Allahabad University as party directing the Allahabad University to get the answers examined in the light of the directions contained in the order dated 4.11.2009. Pursuant to the aforesaid orders, the Vice Chancellor, Allahabad University constituted a committee of experts comprising of Professor Dr. U. C. Srivastava, Department of Zoology, Smt. Indira Mehrotra, Head of the Department of Physics, Professor D. R. Misra, Head of the Department of Botany and Professor Jagdamba Prasad Singh, Department of Chemistry to examine the answers in respect of 13 disputed questions referred to in the order dated 4.11.2009 passed by this Court. The committee of experts so constituted, gave an opportunity to the petitioner as well as to the University to submit the material before the committee in support of their explanations with regard to right answers to the disputed questions.

The committee after considering the material submitted before it by the petitioner as well as by the University submitted its report in a sealed cover. All the four experts submitted their opinion with regard to the correct answers to the questions concerning their respective subjects. The sealed cover was opened during the hearing before this Court and placed before the Court.

As per the report of Dr. U. C. Srivastava dated 6.1.2010 the correct answers to the question nos. 65, 84, 85, 87, 92, and 96 are (d),

(b), (a), (c), (c), and (b) respectively. The key-answers to the aforesaid questions are (a), (a), (b), (b), (d), and (c). Thus, according to Dr. U. C. Srivastava the key-answers to the question Nos. 65, 84, 85, 87, 92 and 96 are wrong and those given by the petitioner to the aforesaid 24 questions are correct.

According to the report of Smt. Indira Mehrotra, the correct answers to the Question Nos. 115 and 118 are (d) and (a) respectively. Meaning thereby the key-answers to the Question Nos. 115 and 118 are correct, while answers given by the petitioner to the said questions are incorrect.

According to the report of Professor D. R. Mishra the correct answer to the question no. 9 is (d). Thus, what follows that the key answer to question no. 9 is incorrect and the answer given by the petitioner i. e. option (d) is correct.

According to the report of Professor J. P. Singh the correct answers to the questions no. 155, 157, 162 and 185 are (c ), (b), (b) and (d). From the report of Professor J. P. Singh it tanspires that the key-answers to questions no. 155, 157, 162 and 185 are incorrect and the answers given by the petitioner i. e. option (c), (b), (b) and (d) are correct answers. The petitioner did not challenge the correctness of the answers provided by the expert Smt. Indira Mehrotra to Question Nos. 115 and 118.

The University also did not dispute the correctness of the answers given by the experts to the question nos. 65, 157, 162 and

185. Smt. Sunita Agrawal, learned counsel for the University had at the very outset very faily conceded that the key-answers to Question Nos. 35 and 157 were incorrect.

University however, filed objection dated 4.1.2010 supported by an affidavit of one Mohd. Qamar Abbas Naqvi, Professor, Botany, Aligarh Muslim University challenging the correctness of the answer provided by the expert to Question No. 9. The University filed two objections dated 24.1.2010 and 31.1.2010 supported by affidavit of Mohd. Afzal, professor, Zoology, Aligarh Muslim University challenging the correctness of the answers given by the experts to question nos.

84, 85, 92, 87 and 96. Similarly the correctness of the answers furnished by the expert to the questions no. 155, has been challenged by the University by filing objection supported by affidavit of Dr. Afaq Ahmad, Reader Department of Chemistry, Aligarh Muslim University. To the aforesaid objections, the petitioner filed counter objections to which the University filed counter reply.

Learned counsel for the petitioner vehemently urged that the objections to the correctness of the answers to the disputed questions, as provided by the committee of experts, which was constituted pursuant to the order of this Court dated 4.11.2009, are virtually the same which were canvassed by the University before this Court in support of the correctness of the key-answers at the time of passing of the order dated 4.11.2009 and this Court after having considered the said objections/contentions arrived at the conclusion that the answers to the disputed questions given by the petitioner were correct, the correctness of the answers to the disputed questions furnished by the committee of experts cannot be re-questioned on the same grounds. He further submitted that this Court after having found that the key- answers provided by the University to the disputed questions could not be termed as most appropriate answers and having obtained experts' opinion in this regard to find out as to whether examining body had provided the correct answers in its key-answers to the disputed questions or not and the opinion of the experts being that key-answers to question Nos. 9, 35, 65, 84, 85, 87, 92, 96, 155, 157, 158, 162 and 185 were incorrect and those given by the petitioner/examinee to the aforesaid questions were correct and there being no challenge to the expertise or qualifications of the members of the committee constituted for the purpose of finding out whether the key-answers to the disputed questions were correct or not, this Court cannot arrogate itself the power or embark upon a fresh enquiry de-novo to ascertain whether 26 the answers to the disputed questions furnished by the committee of experts are correct or not.

He next contended that this Court having adopted the course, suggested by the Hon'ble Apex Court in the case of Guru Nanak University (supra) in such a contingency by appointing a body of the experts who are experts in the field, to seek correct answers to disputed questions, the answers furnished by such body of the experts to the disputed questions are to be presumed to be correct.

Sri Rahul Sripat has further submitted that even according to the University the answers submitted by the experts to question Nos. 35, 65, 115, 118, 157, 158, 162 and 185 are correct and thereby admitting the key-answers to the aforesaid questions are wrong and those given by the petitioner to the said questions are correct. This gives rise to a very peculiar situation that the candidates who have given wrong answers to the aforesaid questions have been selected, whereas the petitioner who has given correct answers, has been denied admission for the reason that her answers did not tally with key-answers and in such situation, the University is not only under legal but moral obligation to admit the petitioner to the concerned course.

Sri Ravi Kiran Jain, learned Senior Advocate who addressed the Court after Rahul Sripat had concluded his arguments, vehemently urged that it now being conclusively established that the petitioner was deprived of admission to the M. B. B. S./B. D. S. Course, 2008-09 by the University on account of wrong key-answers provided for question Nos. 9, 35, 65, 84, 85, 87, 92, 96, 155, 157, 158, 162 and 185 and the petitioner who had given correct answers to the aforesaid questions was denied admission while such candidate who had given wrong answers were admitted and the petitioner suffered irreparable loss of two academic years, the University should not only be directed to admit the petitioner to the current M. B. B. S. / B. D. S. Course but an 27 exemplary cost of Rs. 1,00,000/- (one lac) be fastened on the University for having adopted such a casual and callous approach in the matter.

Smt. Sunita Agrawal, learned counsel appearing on behalf of the University strenuously urged that the key-answers provided by the University to Question Nos. 9, 84, 85, 87, 92, 96 and 155 were correct, whereas the answers given by the petitioner as well as the members of the experts' committee to the aforementioned questions were incorrect.

In doing so, she referred to in detail to the extracts of various text-books which have been filed along with the affidavits of Mohd. Qamar Abbas Naqvi, Professor, Botany, Aligarh Muslim University, Mohd. Afzal, Professor, Zoology, Aligarh Muslim University and Dr. Afaq Ahmad, Reader Department of Chemistry, Aligarh Muslim University and the material filed by the University along with counter affidavit.

I have very carefully examined the submissions made by learned counsel for the parties and perused the material brought on record.

I have also very carefully gone through the reports submitted by the four experts namely, Professor D. R. Mishra, Head of the Department of Botany, Co-ordinator, Environmental Science, University of Allahabad, Dr. U. C. Srivastava, Professor, Department of Zology, University of Allahabad Smt. Indira Mehrotra, Head of the Department of Physics, University of Allahabad and Professor, Jagdamba Singh, Department of Chemistry, University of Allahabad which contain the answers, which according to the experts are correct or most appropriate answers to the disputed questions.

The reports contain reasons for the conclusions arrived at by the experts. The reports also refer to the material relied upon by the experts which include reference to text-books prescribed for Intermediate Board Examinations and other books by the eminent authors in the concerned subjects. The report of Professor Jagdamba 28 Singh, Professor, Department of Chemistry also indicates that the opinion given by him with regard to correct answer to the disputed Question No. 155 was duly endorsed by Dr. R. K. Sharma, Reader, Department of Chemistry, B. S. College, Aligarh, Dr. A. K. Agrawal, Reader and Head of the Department of Chemistry, M. S. College, Sahranpur, Dr. C. P. Singh, M. Sc. In Organic Chemistry retired Reader, M. S. College (S.R.G.), Sri S. C. Singh, Reader and Head, Department of Chemistry, Agra College, Agra and Sri Anand Prakash, Reader, Department of Chemistry, D. S. College, Aligarh.

On behalf of the University an attempt has been made to demonstrate that the key-answers provided by the University to the disputed questions namely, Question No. 9 which relates to Botany, Question Nos. 84, 85, 87, 92 and 96 which are related to Zoology and Question Nos. 155 which relates to Chemistry, are correct by placing reliance on the opinions of Professor Sayed Qamar Abbas Naqvi, Professor, Department of Botany, Aligarh Muslim University, Professor Afzal, Department of Zoology, Aligarh Muslim University, Professor Irfan Ahmad, Department of Zoology, Aligarh Muslim University and Dr. Afaq Ahmad, Reader Department of Chemistry, Aligarh Muslim University. Their opinions have been filed in the form of their affidavits and according to them, key-answers to the disputed questions are correct. They support the key-answers by relying upon various text books on the concerned subjects. However, there is nothing on record which may indicate that the text-books on the subjects on which the experts to the Aligarh Muslim University have relied for justifying the correctness of the key-answers are either prescribed for the students of Class-XII in Uttar Pradesh or such text books are commonly read and studied by the students of Class-XII who are preparing for admission to M. B. B. S. / B. D. S. Course in Uttar Pradesh whereas from the perusal of the material filed by the petitioner along with the 29 writ petition and the rejoinder affidavit as well the material relied upon by the experts in support of their answers, shows that the same comprised of standard text books on the concerned subjects, which the students of Class XII are normally expected to read while aspiring for admission to M. B. B. S. / B. D. S. Course in Uttar Pradesh.

Thus, in view of the above, the admitted factual position which emerges is, that the petitioner had filed this writ petition challenging the correctness of the key-answers provided for Qeustion Nos. 9. 35, 65, 84, 85, 87, 92, 96, 115, 118, 155, 157, 158, 162 and 185. Even according to the University the key-answers provided to Question Nos. 35 and 158 are wrong. According to the report of the experts' committee constituted pursuant to the order dated 4.11.2009 passed by this Court with a view to seek correct answers to the remaining 13 disputed questions, the key-answers provided to Question Nos. 115 and 118 were correct, while the key-answers given to Question Nos. 9, 65, 84, 85, 87, 92, 96, 155, 157, 162 and 185 were wrong and the answers submitted by the petitioner to the aforementioned questions Question Nos. 9, 65, 84, 85, 87, 92, 96, 155, 157, 162 and 185 were the correct answers.

The University did not challenge the correctness of the answers provided by the experts' committee to Question Nos. 65, 157, 162 and

185. There is neither any challenge to the expertise or qualifications of the members of the committee constituted by the Registrar of the University of Allahabad for the purpose of finding out the correct answers to the disputed questions nor any malafide against the members of the experts' committee is alleged and thus, there is no basis for doubting the correctness of the answers furnished by the experts to the disputed questions.

Upon considering the submissions made by the learned counsel appearing on behalf of the University and the objections filed with 30 regard to the report of the experts' committee, I am not satisfied that the answers to the disputed questions provided by the experts' committee and which according to the petitioner also, are correct answers, cannot be termed as the most appropriate answers to the disputed questions. Even otherwise, the members of the experts' committee who have provided correct answers to the disputed questions as a body of experts, are experts in their respective fields and they are supposed to be the only persons capable of finding out a solution. The conclusion recorded by this Court in its earlier order dated 4.11.2009 passed in the writ petition, that the petitioner had been able to demonstrate that the key-answers provided by the University to most of the disputed questions were not the most appropriate answers, stands fully corroborated by the experts' report, therefore, I do not find any reason to differ from the stand taken by this Court in its earlier order dated 4.11.2009 as well as by the experts' report with regard to the correct answers to the disputed questions.

This Court cannot close its eyes to the fact that the candidates who have given wrong answers to the Question Nos. 9, 35, 65, 84, 85, 87, 92, 96, 155 and 157, 158, 162 and 185 have been admitted to the M. B. B. S. / B. D. S. Course, 2008, whereas the petitioner despite giving correct answers to the aforesaid questions has been denied admission for the reason that key-answers provided to the aforementioned questions were wrong.

For the aforesaid reasons, the writ petition succeeds and is allowed. It is directed that the University shall re-evaluate the petitioner's answers to the Question Nos. 9, 65, 84, 85, 87, 92, 96, 155, 157, 162 and 185 with reference to the key-answers provided by the experts' committee and if upon such re-evaluation, it is found that the petitioner has obtained more marks than the last candidate admitted to M. B. B. S. / B. D. S. Course, 2008. The University shall admit the 31 petitioner to the aforesaid (M. B. B. S. or B. D. S. Course, 2010) to which she may be found eligible as per her ranking in the merit list. However, there shall be no order as to costs.

Dated: 6.8.2010.

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Allahabad High Court