Jammu & Kashmir High Court - Srinagar Bench
With Connected Cmps vs Uoi & Others (Writ on 30 September, 2014
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No.1063 of 2014 c/w OWP No.1251 of 2014 OWP No.1207 of 2014 OWP No.1208 of 2014 OWP No.1332 of 2014 OWP No.1331 of 2014 With connected CMPs Nimrat-Ul-Ain Banday Petitioners State of J&K and others Respondents !Mr. M.A.Qayoom, Advocate Mr. N.A.Ronga, Advocate ^Mr. G.A.Lone, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 30/09/2014 : J U D G M E N T :
1. Facts in petitions on hand are by and large admitted. Controversy is restricted to competence of J&K Board of Professional Entrance Examinations (hereinafter referred to as Board), to take decision impugned in writ petitions, mode and manner of decision taken and justification for such decision.
2. Board in April 2014 initiated annual exercise to make selection for Professional Colleges of the State and recommend selected candidates for admission in various Streams in such Colleges, before the specified date. Board on 8th April 2014 issued a Notification informing eligible candidates that Board was likely to issue a Notification inviting applications from aspirants for admission in question. This was in the nature of wakeup call, so that candidates would organise their record and get ready to fill up and submit their applications in prescribed format. Admission Notification was issued on 15th April 2014. Petitioners in writ petitions on hand, like other aspirants, submitted their applications as directed in Information Brochure. Board issued Common Entrance Test 2014 (CET 2014) Schedule on 2nd May 2014. In terms of notification, CET 2014 was to be held on 7th and 8th June 2014. The Test was conducted as per schedule.
3. Board, as promised in Information Brochure, hosted answer key on its website on 8th July 2014. Candidates were given liberty to submit their representations within two days in the event anyone, amongst them, had any reservation about answers indicated in answer key. If Board is to be believed, it in all received 276 representations against answer key. 109 such representations related to Physics subject, while 102and 65 were concerning Biology and Chemistry subjects respectively. Board referred representations alongwith supporting material appended to representations to Expert Committees.
4. The Committees, on going through representations and connected material, recommended nullifications of 17 questions and change in answer to 02 questions i.e. question no.65 Biology (Set No.A) and question no.51 Chemistry (Set No.A). Board, acting on recommendations, hosted revised answer key on its website on the date specified in Information Brochure. Questions nullified may be tabulated as under:
Subject Set No. Question Nos.
Total Physics A 07,11,23,34,52,57 06 B 06 01 Chemistry A 6,32,47,50,68 05 B 07 01 Biology A 14,41,57,59 04 Total 17
5. In addition to nullification/deletion of aforementioned questions in various subjects, Board also changed answersto question no.65 Biology (Set No.A) and question no.51 Chemistry (Set No.A).Merit of candidates was evaluated on the basis of revised key and result/rank notified, accordingly.
6. Petitioners are aggrieved with decision taken by Board to nullify aforementioned questions and change answers of two questions, on the ground that decision was taken without competence and authority and also that as one of answers to nullified questions in answer key, was correct, there was no justification to nullify questions. It is urged that Board, by nullifying questions, has deprived petitioners of marks/points, they would have earned, had their merit been assessed on the basis of answer key.
7. Petitioner in OWP No.1063/2014 claims to have correctly answered question nos.14 & 57 (Biology, Set No.A), question nos.06,32,68 (Chemistry, Set No.A) and question no.52 (Physics, Set No.A), and therefore in a position to secure 154 marks. Her case is that nullification of these questions and change in answer to question no.65 Biology (Set No.A) and question no.51 Chemistry (Set No.A), brought down her merit from 154 to 145.6 and her rank to 00507.
8. Petitioner in OWP No.1251/2014 claims to have correctly answered most of nullified questions and nullification of questions to have pushed down her merit and rank, and therefore deprived her of right to get admission in a Professional College. Petitioner does not identify questions correctly answered by her and nullified by Board.
9. Petitioner in OWP no.1207/2014 states to have answered question nos.5,6, 71 (Physics, Set No.C), question nos.10,11,54&61 (Chemistry, Set No.C) and question nos.12,50&56 (Biology, Set No.C) correctly and to have been able to score 161.6 points, in case his merit was evaluated on the basis of answer key. He is aggrieved that by nullification of questions, correctly answered by petitioner, his merit and rank have been pushed down and he deprived of his right to get admission to the Stream and Professional College of his choice.
10. Petitioner in OWP No.1208/2014 claims to have correctly question nos.57&23 (Physics, Set No.A), question nos. 06,32,47,50 and 68 (Chemistry, Set No.A) and question nos.14,41&57 (Biology, Set No.A), and to have been in a position to earn 165 points. His case is that decision taken by Board to nullify questions correctly answered by him, has adversely affected his right to get admission to the Stream and Professional College of his choice.
11. Petitioner in OWP no.1332/2014 states to have answered question nos.24,27,29&59 (Chemistry, Set No.D) and question nos.23,43,44&59 (Biology, Set No.D) correctly and to have been in a position to earn 152.2 points in the event her merit was evaluated on the basis of answer key. She is aggrieved that by nullification of questions, correctly answered by petitioner, her merit and rank have been brought down and she deprived of her right to get admission to the Stream and Professional College of her choice.
12. Petitioner in OWP no.1331/2014 states to have correctly answered question nos.24,25,29&59 (Chemistry, Set No.D) and question nos.43,44&59 (Biology, Set No.D) and to have been in a position to secure 152.8 points. His case is that decision taken by Board to nullify questions correctly answered by him, has prejudicially affected his right to get admission to the Stream and Professional College of his choice.
13. Petitioners case is that had Board adhered to answer key, they would have been selected and recommended for admission to Streams/ Institutions of their choice. It is pleaded that Board, by nullifying questions, has left room for conversion of merit into demerit and that such course was not open unless an opportunity was provided to petitioners to put forth their stand. It is pleaded that in terms of guidelines in vogue, on the date process to conduct CET 2014 was initiated, did not leave room for nullification of a question and in the event none of answers to a question shown in revised key was found to be correct, all candidates were to be awarded one point and where more than one answers were found to be correct, a candidate, indicating any of such answers, was to get credit for correctly answering questions. The decision taken by Board, according to petitioners, is without jurisdiction and also unwarranted as even in case of nullified questions one of the answers in answer key was correct and as regards question no.65 Biology (Set No.A) and question no.51 Chemistry (Set No.A), answers given in answer key were correct, leaving no scope for change of answers. It is urged that action impugned in petitions, has been presumably taken on the basis of rules i.e. J&K Board of Professional Entrance Examinations Rules, 2014, notified vide SRO 168 dated 10th June 2014, not in vogue on the date selection process was initiated and therefore not applicable to CET-2014.
14. Writ petitions are resisted on the ground that none of petitioners rights is violated and therefore they cannot invoke writ jurisdiction of the Court. It is insisted that Board has proceeded in strict accordance with law, rules, regulations and guidelines, and that decision taken does not warrant any interference. It is averred that Information Brochure for CET 2014, issued by Board, provided for notification of answer key immediately after Test was over, so that all candidates were made aware of answers to questions set out in question paper,on the basis whereof their merit was to be evaluated. The object of publication of answer key, according to Board, was that reservations about correctness of answers were brought to the notice of Board enabling it to take necessary steps and evaluate merit in a fair and objective manner. Board denies to have overstepped its jurisdiction or assumed jurisdiction not vested in it. It is maintained that J&K Board of Professional Entrance Examinations Rules, 2014, are attracted as Rules came in force well before finalisation of selection process. Board insists that representations, received from candidates against answer key, were referred to Expert Committees and decision, taken by Board, was in tune with recommendations of said Committees. It is pleaded that Board, in order to adhere to calendar laid down by Honble Supreme Court for finalisation of admission to Professional Colleges, was required to take decision at various stages in selection process within timeframe. It is denied that decision taken was motivated by any considerations.
15. I have gone through pleadings, record available on file. Controller of examination has taken me through record labelled as confidential by the Board. I have heard learned counsel for parties.
16. Before identifying issues involved in writ petitions on hand, it would be appropriate to summarise background in which Time Schedule for finalisation of admission to Professional Colleges has been laid down by Honble Supreme Court, its sanctity and results of non- adherence to Time Schedule so fixed. The decision to fix Time Schedule for admission to Professional Colleges has its roots in the problem of belated admissions. Authorities, administering such admission, would at time grant admission a few months after the course would commence, resulting in endless litigation. Belated admission would also prejudice academic career of students admitted at late stage. Supreme Court in Convenor, MBBS/BDS Selection Board and Ors. v. Chandan Mishra and Ors. (1995 Supp. (3) SCC 77) expressed its anguish at insensitivity of authorities administering medical admission and directed to prevent occasions for repetitive grievances from student community. The Court in Dr. Subodh Nautiyal v. State of U.P. and Ors.(1993 Supp. (1) SCC593), disapproved admissions four months after commencement of course. In State of U.P. and ors v. Dr.Anupam (1993 Supp (1) SCC 594), it was held that to maintain excellence in academic course, the delay defeats claim for admission, though seats may be vacant. The Court emphasising desirability of commencing course on schedule and completing within schedule, observed:
Considering from this point of view, to maintain excellence the courses have to be commenced on schedule and be completed within the schedule so that the students would have full opportunity to study full course to reach their excellence and come at par excellence. Admission in the mid- stream would disturb the courses and also work as a handicap to the candidates themselves to achieve excellence. Considering from this pragmatic point of view we are of the considered opinion that vacancies of the seats would not be taken as a ground to give admission and direction by the High Court to admit the candidates into those vacant seats cannot be sustained." The principle was reiterated in State of Punjab and ors v. Renuka Singla and ors. (1994(1) SCC 175). In Medical Council of India v. Madhu Singh and ors (2002 (7) SCC258). The Court, referring to observations made in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad and Ors.(1987 (4) SCC 459), held:
It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual positions go to show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for respondent No.1 that with the object of preventing loss of national exchequer such admissions should be permitted, we are of the view that same cannot be a ground to permit mid- stream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by takinginto consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continuous taking of classes with the object of fulfilling requisite number of days would be harmful to be students' physical and mental capacity to study. In fact such a suggestion was held to be grossly inappropriate in Dr. Dinesh Kumar's case (supra).
One of the directions issued in aforesaid case was that (vi) no variation of the schedule so far as admissions are concerned shall be allowed and (vii) in case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI.
17. The principle also finds expression in Mridul Dhar v. Union of India [2005 (2) SCC 65]. The Court once again laid down calendar for completion of admission process to Professional Colleges and while impressing upon Admission Making Authority to adhere to Time Schedule, reminded them that in case of failure to adhere to Time Schedule, defaulting party would be personally liable to be proceeded with.Supreme Court in a recent order dated 19th May 2014 in case titled Lipika Gupta and another versus UOI & others (Writ Petition (Civil) No.737 of 2013, has reiterated mandatory character of Time Schedule fixed initially in Mridul Dhars case (supra)case and thereafter reiterated in identical matters. The Court held:
....we approve the said schedule and direct that all the authorities shall follow the said schedule for the academic year 2014-2015 without any deviation, and we make it clear that any deviation by any agency will tantamount to contempt of this Court. The Court referred to Time Schedule for completion of admission process for first MBBS Course, produced before it by Assistant Solicitor General of India. In terms of Schedule approved by Honble Supreme Court for completion of admission process for first MBBS Course, is to be completed by 30th September 2014. Time Schedule does not only give date of completion of admission process but sets out dates for completion of different stages, like conduct of examination, declaration of result, first round of counselling second round of counselling etc. etc. To summarise Time Schedule is fixed to maintain academic excellence, prevent avoidable litigation and rule out commercialisation of professional education. Authority, responsible for making admission to Professional Colleges can ill afford to disregard to Time Schedule and would be visited with penal consequences in case it is violated. The decision impugned in present petitions is to be appreciated in the above background.
18. Having taken brief overview of background etc. of the Time Schedule, let us now concretise the issues involved in petitions on hand. The issues arising out of pleadings may be identified as under:-
(1) Whether Board has power and authority to nullify question(s) and ignore question(s) so nullified while assessing merit of candidates/examinees? (2) In case Board is held to have such power and jurisdiction, whether, in the facts and circumstances of the case, nullification of 17 questions was justified and change in answers to 02 questions was justified.
19. Issues may now be taken up against backdrop of case set up and arguments advanced by learned counsel for parties.Petitioners insist that Board has no power to nullify any question under J&K Board of Professional Entrance Examinations Act, 2002, and that Information Brochure for CET-2014 issued by Board also does not detail such power ofBoard. To appreciate the argument it would be advantageous to extract relevant part of Information Brochure:
11. Determination of merit:
I. xxx II. xxx III. xxx IV. xxx V. xxxx VI. The Board shall make available the answer key on its website at about 6 pm on the conclusion of last meeting of the examination for students to make representation within two days time. VII. The representations shall be consolidated by the
Board and will be re-examined by subject experts whose opinion will be final.
VIII. The revised key will be uploaded on the website for general information but no representation will be entertained against revised key so that whole admission process is completed within the prescribed time scheduled and does not protract endlessly. The revised key will be applied for evaluation of all the answer sheets including answer sheets of those candidates who have not made any representation.
IX. Where a question has ambiguous language which admits more than one answer or has two answers, both the answers shall be considered correct and the student attempting either of the two answers will be given a mark.
X. Where none of the options given to a question is correct, the question will not be considered and one mark will be given to all the candidates whether they have attempted this question or not.
20. Learned counsel for petitioners, referring to Information Brochure, argue that in terms of para 11 (X), in case none of the options given to questions is found by Subject Experts to be correct, 01 mark is to be given to all candidates and such question not to be nullified. It is argued that Board by introducing nullification has not only travelled beyond its jurisdiction, spelt out in the Act and guidelines but deprived petitioners of 01 mark, they would otherwise get in terms of para 11(X) of Information Brochure. Board is said to have changed selection criteria midstream to the prejudice of petitioners.
21. It is further argued on behalf of petitioners that Board while nullifying 17 questions, has pressed into service J&K Board of Professional Entrance Examinations Rules, 2014, notified vide SRO 168 published on 10th June 2014, least realising that Rules were not in vogue on the date admission process was initiated i.e. 15th April 2014 and therefore Board had no power and authority to fall back on Rules. Pertinent to point out that Rule 22(13) leaves room for deletion of invalid questions. Learned counsel for petitioners disputes date of publication of Rules. It is pointed out that Rules admittedly are to come into force from the date of their publication in Government Gazetted and that as per information procured by petitioner, SRO 168 dated 10th June 2014 was received by Incharge Gazette on 25th August 2014 and therefore published after said date. It is stated that stand taken by the Board that Rules were published in Government Gazette on 10th June 2014 is without substance.
22. Petitioners question applicability of J&K Board of Professional Entrance Examinations Rules, 2014, to CET-2014, also on the ground that Rules were not made in accordance with Section 23, General Clauses Act, 1977, and are, therefore, devoid of any force. Learned counsel for petitioners insist that in terms of aforesaid provision, Draft Rules were to be published for public response and finalised only thereafter. Pre-publication, according to learned counsel, is sine qua non for validity of Rules. Reliance in this regard is placed on Municipal Corporation Bhopal and another versus Misbahul Hassan and others [AIR 1972 SC 892] and Ramakrishna Vivekananda Mission versus State of West Bengal [2005 (9) SCC 53].
23. It is next argued by learned counsel for petitioners that even if it is assumed that Board has power to nullify question(s) or revise answer, still exercise of such power was not warranted in the present case as one of the answers in all 17 nullified questions is correct and further that answers given in answer key to question no.65 Biology (Set No.A) and question no.51 Chemistry (Set No.A), are also correct as per NCERT Books.
24. Learned counsel for petitioners,to insist that there was no justification for nullification of questions, submitted a note wherein nullified questions and their answers are tabulated. The extracts from various books including books prescribed by NCERT are appended to the note, to reinforce the stand that Board had no reason to nullify questions as one of answers/options as per material appended, given in question paper against such questions, is correct. It is reiterated that any error committed by experts is not to visit petitioners with any adverse consequences. Learned counsel in this regard seek to draw support from law laid down in Abhijit Sen versus State of Uttar Pradesh [1984 (2) SCC 319]; Kanpur University through Vice Chancellor State of U.P. versus Samir Gupta [1983 (4) SCC 309]; and Competent Authority Entrance Examination, J&K versus Wasim Ashraf and others [1997 KLJ 435] also.
25. It is pointed out that respondents did not adhere to principle audi alteram partem, while taking decision called in question in writ petitions. It is insisted that Board was required to afford petitioners opportunity to put forth their stand before final decision as regards nullification of 17 questions was taken by Board and petitioners are to be given credit for answers given by them and found correct as per initial answer key.
26. Learned counsel for Board on other hand argues that decision of Board impugned in petition, has been taken on the basis of recommendations made by Expert Committees, keeping in view representations made by candidates wherein reservations were voiced about correctness of answers given in answer key. Learned counsel argues that power of cancellation/deletion of questions, where none of options is found by Subject Experts correct, is always available under scheme set out in the Act of 2002. Learned counsel denies that J&K Board of Professional Entrance Examinations, Rules, 2014, did not come into force on 10th June 2014 as Rules were not published in Government Gazette on said date. To reinforce his stand learned counsel for respondents produced copy of J&K Government Gazette dated 10th June 2014, whereby J&K Board of Professional Entrance Examinations Rules, 2014, stand published.
27. Mr Lone, pointing to Time Schedule, laid down by Honble Supreme Court to complete admission process within given timeframe, argues that Board was left with no option but to adhere to Time Schedule, that did not admit of long drawn proceedings or enquiry and that constitution of Expert Committee was in the facts and circumstances only option available to Board and that such option having been exercised, petitioners cannot have any grievance against decision taken by Board. Learned counsel points out that evencalendar for admission process are fixed by the Court, with no room for any flexibility. It is argued that against said backdrop, there was no scope for giving an opportunity to petitioners to show cause against proposed action.
28. Main plank of petitioners case, as already noticed, is that Board lacked power to nullify/delete a question. The plea is without substance as such power can be located in Section 9(1)(a), J&K Board of Professional Entrance Examinations Act, 2002. It would be advantageous to reproduce it for ready reference:-
9. Powers and duties of the Board (1) The Board shall have the following powers and duties:-
(a) to conduct written tests and hold interview/counselling and take such other steps as may be considered necessary for making selection of candidates to the professional courses in the professional institutions; Board under aforesaid provision is clothed with power not only to conduct written test and hold interviews/counselling for making selection of candidates to various courses in Professional Institutions but Board is conferred further power to take all other steps as may be considered necessary for making such selection. Power to nullify or cancel a question found to be absurd or with none of options correct falls within spread and sweep of afore-identified powers of Board. It would be absurd and ridiculous to assume that even where Board on the basis of Expert opinion finds a question to be incorrect or with none of options as correct answer to it, Board would be without power to nullify or cancel such question.
29. Assuming for a while that Section 9(1)(a) of Act of 2002 does not confer such power on Board, yet the power would be available to Board under J&K Board of Professional Entrance Examinations Rules, 2014. The plea that Rules were not in force on the relevant date is without substance. Learned counsel for respondents, as already stated, has placed on record copy of Government Gazette dated 10th June 2014, wherein Rules are published. The Rules, therefore, came into force with effect from 10th June 2014. It is well settled law that on the basis of principle of presumption, Rules, once published in Official Gazette, are taken to have been made and come into force in accordance with procedure prescribed under law. In other words, Rules of 2014 were operational before the admission process was concluded.
30. Argument, that as Draft Rules were not published in accordance with Section 23, General Clauses Act, these are to be held as void, is not to succeed. In first place, Section 23, J&K Board of Professional Entrance Examinations Act, 2002, whereunder power to make Rules is conferred on Government, does not require pervious publication of Draft Rules. It empowers Government to make Rules by publication in Government Gazette for carrying out purpose of the Act. Section 23, J&K General Clauses Act, is to be adhered to where the Act conferring power to make Rules itself requires publication of draft of proposed Rules or byelaws for information of persons likely to be affected thereby. Secondly, in terms of Subsection (5) of Section 23, J&K General Clauses Act, publication in Government Gazette of a rule purporting to have been made in exercise of a power to make rules after previous publication shall be conclusive proof that the rules have been duly made. In present case, once Rules have been published in Government Gazette, their publication is conclusive proof that Rules have been duly made. Lastly, a plea regarding non-publication of draft Rules or failure to adhere to Section 23, General Clauses Act, is to be specifically raised, enabling other-side to controvert the plea. It is settled law that it is for petitioner to allege in petition that essential condition of previous publication was not complied with. Reference in this regard may be made to Bakshi Tirath Ram v. Registering Authority, Jammu and Kashmir [AIR 1959 J&K 141]. In the present case, we do not come across any specific pleading in this regard.
31. It is pertinent to point out that even Information Brochure did not extend any advantage to petitioners that has been materially changed or withdrawn by nullification/deletion of 17 questions, mentioned above. In terms of Information Brochure, in case of absurd question or questions where none of the options was correct answer to question, all the candidates would get one mark. In the circumstances, though petitioners would get one mark for each of nullified/deleted questions, all other candidates would also get one mark for such questions. The merit position, thus, would remain unaltered. Board instead has decided not to award any mark for such questions thereby dealt with all candidates in even manner. If petitioners did not get any credit for 17 deleted questions, so was case of all other candidates. Petitioners plea that situation can be visualised, where questions are not deleted and only petitioners given correct answers, is imaginary and farfetched. It needs to be pointed out that decision not to award any points for questions found absurd or with none of options as correct answer has been taken in the background of Division Bench judgment dated 10thMarch 2014 in LPA no.223/2013 titled J&K Board of Professional Entrance Examination and others versus Qazi Basra and others.The Court put a question mark on practice of awarding one mark to the candidates who tick mark either of two answers in case more than one answers to a question are correct, Board was directed to constitute a Committee to look into this aspect of the matter and also mode and manner for conducting CET. The Government, accordingly vide government order No.478-GAD of 2014 dated 15th May 2014, constituted a Committee of Experts, headed by Chairman of the Board, to look into the issues set out in government order. Soon thereafter J&K Board of Professional Entrance Examinations Rules, 2014, came into being and were published in Government Gazetted on 10th June 2014. The decision to nullify/delete absurd questions or questions with none of options as correct answer, therefore, does not make material departure from Information Brochure published by Board.
32. Now remains question of justification for nullification of 17 questions and change in answers to 02 questions. The Information Brochure, as already pointed out, left room for receipt of representations from such of candidates, who had any reservation about questions asked or options given in answer key, hosted on the website in the evening of the day the test concluded. Information Brochure, informedthe candidates that any candidate may make a representation in this regard and that representations, if any, received shall be consolidated and referred to Subject Experts whose opinion will be final. The exercise to receive and consolidate representations and refer these to Subject Experts, was, therefore, to the knowledge of petitioners, to be taken to its logical end. Petitioners, therefore, cannot claim to have been taken by surprise by receipt of representation by the Board and mode and manner in which these were dealt with.
33. Confidential record of CET-2014 made available by Board, reveals that Board, after representations were received and consolidated, did not pick up Subject Experts on its own. It did not even associate Paper Setter with the exercise.It rather approached Test Coordinatorwith a request to nominate/constitute Committees to look into representations. As representations received related to all three papers i.e. Physics, Chemistry and Biology, three Committees, each comprising of three Subject Experts with doctorate in the Subject and 10 years teaching experience to their credit, were constituted. None of members of Committees belonged to State of J&K. Board, therefore, ensured that representations were looked into in an impartial and dispassionate manner. It also took pains to ensure that representations were not referred to single Subject Expert as it would leave some scope of arbitrariness. The Board referred representations to more than one Subject Experts, to make exercise objective and impart credibility to the decision taken. Subject Experts of each of Committees unanimously recommended nullification of questions referred to them. It was only thereafter that questions were nullified/deleted. Board, therefore, acted in most fair, transparent and objective manner. The decision taken by Subject Experts as laid down in Information Brochure was final and would not admit of any enquiry.
34. The plea that petitioners should have been given an opportunity to project their viewpoint before final decision was taken, is meritless in the background of nature of enquiry and the timeframe for completion of admission process. Let us assume for a while that petitioners should have been heard and allowed to prove that questions were not absurd or one of options given was correct and also to substantiate their stand by material in their possession. In that case, representeeswould also ask for a right to respond and reinforce their stand that nullified questions were either absurd or none of options given was correct. This would have been resulted in an unending process, not permissible having regard to nature of exercise undertaken by Board and Time Schedule for completion of admission process laid down by Supreme Court. The Court, while embarking upon an exercise to make judicial review of decision taken,is to see whether the decision has been taken in a fair and objective manner or whether it is tainted with arbitrariness and unfairness. In the present case, mode and method adopted by Board, as already stated, is transparent, fair and objective.
35. This above discussion principle audi alteram partem, is not universally applicable and required to be invariably followed in all circumstances.It is to be adhered to where it serves a purpose and by denying the right such purpose is likely to get frustrated. In present case once three Subject Experts of each discipline with highest credentials opined that question(s) was/were absurd or none of options given correct, there was no point in entertaining contrary view from petitioners.
36. Coordinate Bench of this Court in OWP No.1159/2013 titled Sourav Goel v. J&K BOPEE and others (judgment dated 2nd September 2014), had occasion to deal with almost identical controversy. In this case, question papers together with representations were sent to two Experts in addition to Paper Setter and answer key was revised on the basis of recommendation received. An effort was made to throw challenge to revised answer key on the ground that recommendations made by Subject Experts did not deserve to be accepted. The Court held:
The Court cannot substitute its own view in place of the view taken by the Experts. Nor would it be prudent to re-open such decision with grievances pouring in time and again thereby opening a Pandoras Box. This would have the result of re-opening of the selection process every time a grievance is projected and subjecting all selection made to re-evaluation with most undesirable consequences of jeopardizing interests of selected candidates. After all there has to be an end to the selection process and it cannot be the subject of re- evaluation each and every time a candidate seeks to assail the selection process. Guidelines of BOPEE providing a mechanism for entertaining representations within two days against wrong question papers or wrong answer key fairly enough addresses the issue of errors having occurred in the question papers or in the answer key. The errors found necessarily warrant revising of the answer key and consequent re-evaluation of answer scripts.
The Court, as rightly laid down, cannot act as super specialist and initiate an exercise on its own, to re-examine the issue settled, with the opinion of Experts.
37. For reasons discussed, I do not find any merit in writ petitions on hand. No interference is warranted. Petitions OWP No.1063/2014, 1251/2014, 1207/2014, 1208/2014, 1332/2014, and 1331/2014, are, accordingly,dismissed.
(Hasnain Massodi) Judge Srinagar 30/09/2014 Ajaz Ahmad