Document Fragment View

Matching Fragments

2. The salient facts as appeared in the writ petition in brief are as follows : the petitioner No. 2 applied with registration fee to appear in the Joint. Entrance Examination to be held in 1982 and his registration number in the said examination is M/GAS-114. The admit card issued to the petitioner in respect of the said examination was annexed as annexure 'C' to the petition. The petitioner No. 2 duly appeared in the said examination and answered all questions to his greatest satisfaction. He expected to do better in the said examination and he also expected to be within the successful candidates in order of merit for being admitted in the medical colleges. It has been pleaded that the result was first published on 30th June. 1982 but immediately after publication the list was hurriedly withdrawn for republication later on. The list was subsequently published in July, 1982 and in that list petitioner's name did not appear. It has been stated that the Board does not follow any system to afford an opportunity to the aggrieved student for review, re-examination and/or scrutiny of his or her answer scripts. It has also been pleaded that there was a great difference in the result published in the first blush and in the results that was published in the second time, thereby giving room for serious doubts of arbitrariness, discrepancy, malpractice and utter discrimination at the behest of some persons of influence having vested interest. There has been serious resentment amongst students who appeared in the ensuing examination, examiners connected with the examination, guardians, educationists and people in general as to the mala fide and arbitrary mode of conducting and publication of the result of Joint Entrance Examination, 1982 held by the West Bengal Board of Examination for admission to Engineering, Medical and Technological Decree Colleges. It has been pleaded that the answer scripts of the students were not properly and fairly examined and there is discrimination in the matter of tabulation of marks and in publication of the list of successful candidates. It has also been stated that grace marks have been given to the tune of sixty in number without having any declared policy, rules, norms, procedure and lawful practice. It will be evident if all the relevant documents including answer scripts, tabulation sheets, selection papers and connected marksheet are produced before this Hon'ble Court, that there has been gross injustice, unfairness, arbitrary discrimination, undue favouritism, sacrificing all norms and procedures of fair examination system to the greatest prejudice and injury to the case of the students in general and to the case of the petitioner No. 2, in particular. In spite of repeated asking the authority refused to review the answer scripts on the plea that there was no such rule for review or disclose of the marks obtained by the examinees. As such the instant application has been made in a representative capacity on behalf of the unsuccessful candidates as well as on behalf of the petitioner himself. This application was moved on 30th July, 1982 whereon this court directed the petitioner to serve copies of this application on the respondents and on interim order was made in the meantime restraining the respondents from giving effect to the impugned results of Joint Entrance Examination held in 1982 and they were further directed to produce the results that was published first on 30th of June, 1982 as well as the subsequent results before this court on that day. The respondents were further directed to preserve all the papers of the examinees.

9. An affidavit in opposition has been sworn by Dr. Arun Kumar Seal, the Principal of Bengal Engineering College, Sibpur and also the Chairman of the West Bengal Board of Examination for admission to Engineering, Medical and Technological Degree Colleges have been filed on behalf of respondents Nos. 3 and 4 on 10th August, 1982 against the issuance of the Rule and extension of the interim order. It has been stated in paragraph 3 of the said affidavit that on 2nd March, 1982 under a memorandum addressed by the Deputy Secretary to the Government of West Bengal, Education Department communicated to the Secretary to Government of India, Ministry of Scientific Research and Cultural Affairs, that scats for the purpose of admission into technical institutions had been pooled in response to the letter No. F.21-72/61-T dated 11th January, 1962 by the Secretary to the Government of India. It was stated that except for the Jadavpur University, all other technical institutions, namely. Bengal Engineering College, Sibpur. Regional Engineering College. Durgapur and Jalpaiguri Engineering College had agreed to have a joint admission test that year to be conducted by a Board constituted with the heads of those institutions or their nominees and a representative of the Education Department. It was pointed out that the Board would invite applications from all students seeking admissions to the various Engineering Colleges charging fees at prescribed rates and will conduct a written admission test in the prescribed manner. The results of the written admission test would be forwarded to the Colleges concerned which will apply their own Rules for the purpose of final selection of candidates. A copy of the said memorandum dated 2nd March, 1962 has been annexed as Annexure 'A' to the said affidavit. It has been further stated herein that since the session of 1972-73, the Board has been directed by the Governor to hold Joint Entrance Examination for selecting candidates for admission to the Pre-medical Course in Dental and Medical Colleges in West. Bengal and a copy of the communication of the order is annexed hereto and marked 'C (1)'. On 7th July, 1981, the Board was renamed as The West Bengal Board of Examination for admission to Engineering. Medical and Technological Degree Colleges and was re-constituted with the additional inclusion. Copy of this order has been annexed as annexure 'D' to the writ application. It has been stated in paragraph 9 of the said affidavit that being entrusted with the conduct of Joint Entrance Examination for admission to Engineering, Medical and Technological Degree Colleges, the Board framed certain Rules for the Joint Entrance Examination. 1982, copies of which were supplied to all candidates along with the application forms for applying for permission to appear at that examination so that it might not be said that the candidates for admission to the said degree colleges were not aware of the Rules for Joint Entrance Examination. A printed copy of these Rules has been annexed as annexure-E. It has been stated in the said rules that as regards the admission to Medical Colleges concerned it would be through Central Selection Committee. C/o. Medical College, Calcutta and selection tor admission will be judged on merit in the Joint Entrance Examination and subject to passing the qualifying examination which was the Higher Secondary Examination. It has also been stated therein that as regards admission to Bengal Engineering College and tha Jalpaiguri Government Engineering College and the 4 Technological degree Colleges in the State of West Bengal it was provided that, after the publication of the results of the Joint Entrance Examination the application form would be given from the College to qualified candidates on production of the Admit Card of the Joint Entrance Examination. The rules gave the programme for Joint Entrance Examination in 1982 and listed the places of examination. The Rules also provided that the Board was in no way responsible for admission to constituent Colleges and that the Board only provided the results of the Entrance Examination to the constituent colleges and that the Board never published the result. It was also made clear that the Board would not communicate the result to any individual candidate and did not have any provision for post-publication scrutiny and review and no such application for post-publication scrutiny and review would be entertained. It was also provided therein that the Board was not responsible for admission to constituent colleges and the Board only provide the result of Joint Entrance Examination for admission to the constituent colleges and the Board would never publish the result. After the examinations are held, the marks are tabulated by different tabulators who are teachers of Technical Degree Colleges and the merit list was prepared on the basis of the total intake to the Engineering, Medical and Technological Degree Colleges as well as on the basis of past experience of candidates not joining or not continuing after admission. In sub-paragraph (5) of paragraph 11A it has been stated that the answer scripts processed by tearing off the top-sheets bearing Board Regulation number A Code No. is given to the top sheets as well as to the answer scripts to maintain linking. This is done to avoid disclosure of the identity of the candidates. The packed answer scripts are given to the examiners after a meeting with the Head and Co-head Examiners to formulate uniform instructions to be followed by all the examiners. The examined answer scripts along with marks (against script No.) are received by the Board and finally given to the Head Examiners. The scrutinisers do their work as per instructions given bv their Head and Co-head. Examiners under their supervision. Thereafter marksheets are given to the Board. It has been further stated in Sub-paragraph (9) of Paragraph 11A that after due checking and summing up, a merit list showing position of candidates in order of merit is prepared. The lists contained only a few number of candidates keeping adequate coverage to the admission requirements with, intake of the constituent colleges. These, after due consideration of the Board and approval, are given to the Constituent Colleges. It has also been stated that the Board after considering the results approved them and cyclostyled copies of the said compilations of the results were sent to the Constituent Colleges on 8th July, 1982. In paragraph 18 it has been denied that the first result of the Joint Entrance Examination was published on 30th June. 1982. It has also been stated that the Board never publishes results, that the Board only provides a list of candidates in order of merit to the Constituent Colleges in order to be admitted in order of merit. It has also been stated that the question of publication of lists of successful candidates and giving their detailed marksheets do not arise. It has also been stated that a meeting of the Board was called on the 30th June, 1982 and item No. 5 of the agenda of the said meeting was to consider the results of the Joint Entrance Examination. 1982, for admission to Engineering, Medical and Technological Degree Colleges. This item was deferred as the result was incomplete. It has been stated that the Board asked the Confidential Sub-Committee to finalise the result and place it at the adjourned meeting to be held on 7th July, 1982. At the adjourned meeting held on 7th July, 1982, the Board considered the results and approved the same. The results were sent to the constituent colleges on 8th July, 1982. In paragraph 23 of the said affidavit it has been stated that no selective grace mark has been given to any candidate leading to discrimination. It has been further stated that the results finalised and placed by the Confidential Sub-Committee were approved by the Board at its meeting on 7th July, 1982. It was not necsessary to obtain any consent of the Examiners as such or any approval of the authorities, In paragraph 26 it has been denied that there has been any discrepancy and unfairness, as alleged. It has also been stated that under the rules the results cannot be reviewed. There was an offer at the time of hearing on behalf of respondents 2 and 3 without prejudice to their rights and contentions that the answer scripts of the petitioner No. 2 would be reviewed by other examiners and that offer was made in spite of the fact that, under the rules no review could be granted. But that offer was not accepted by the petitioners. In paragraph 28 it has been further reiterated that no selective grace mark has been given to any candidate leading to discrimination. The results finalised by the Confidential Sub-Committee were approved by the Board at its meeting on 7th July, 1982. It has also been denied that there has been any discrimination in tabulation of marksheets and in not including the name of the petitioner No. 2 in the merit list of candidates or that attempts are being made to destroy relevant papers as falsely alleged. The averments in paragraph 23 of the said affidavit has been affirmed as true to the knowledge of the deponent whereas the averments in paragraph 28 of the affidavit have been affirmed as submissions of the deponent.

14. Mr. Sushanta Chatterjee, learned Advocate appearing on behalf of the petitioner has submitted in the first place that the petitioner having made this application in a representative capacity on behalf of the unsuccessful candidates who appeared in the Joint Entrance Examination held in 1982 for admission to Engineering. Medical and Technological Degree Colleges and leave having been granted to proceed with the application under Rule 11 of the Rules framed by this Hon'ble Court in respect of applications under Article 226 of the Constitution in a representative capacity. This application is maintainable in this jurisdiction. It has also been submitted by Mr. Chatterjee that the application whereon this instant rule was issued is maintainable inasmuch as it is a public interest litigation involving the interest of a large number of unsuccessful candidates whose names were not published in the merit list and the challenge that has been made in this application is the same, namely, that the West Bengal Board of Examination has not been properly constituted and there has not been a proper assessment of the answer scripts and also tabulation of marks and there has been irregularity and illegality in the matter of conducting and publishing the results of the examination-in-question. This application is therefore maintainable. Several decisions have been cited at the bar bv Mr. Chatterjee in support of his argument. It has been next submitted that there has not been any unusual delay in moving this application and this application is not liable to be dismissed on that ground of delay or laches as has been alleged on the part of the petitioner in coming before this writ court at the earliest opportunity. It has also been submitted that the application is not barred by estoppel and acquiescence as the petitioners had no other alternative but to appear in the said admission test in order to get themselves admitted in the Engineering. Medical and Technological Degree Colleges. It has been next submitted that the formation as well as constitution of the Board of Examination to hold examination for admission to Engineering Medical and Technological Degree Colleges being contrary to the provisions of the Calcutta University Act. The impugned order of the Government constituting the Board and the rules framed thereunder for holding the Joint Entrance Examination for admission to Engineering. Medical and Technological Degree Colleges are wholly illegal, unwarranted and without jurisdiction as the same has been made contrary to the provisions of the Calcutta University Act, 1979 (West Bengal Act XXXVII of 1979). It has been further submitted in this connection by Mr. Chatterjee that the formation of the Board for holding, the said examination on the basis of the Govt. order is illegal and had inasmuch as the exercise of the executive power making the Govt. order is in excess of the provisions of Article 162 of the Constitution of India. The Government order dated 7th July, 1981 which entrusted the West Bengal Board of Examination with the duty of selection of candidate's for admission to Engineering, Medical and Technological Degree Colleges has not been followed and/or observed as the act of selection has been Riven to the Central Selection Committee not envisaged in the said Government order, nor any manner or mode regarding the formation of the Central Selection Committee as well as exercise of the power of the Selection Committee has been laid down therein. It has been further submitted that the rules that have been framed by the Board is contrary to the Government order inasmuch as no power has been conferred on the West Bengal Board of Examination to frame rules laving down the manner of holding examination for selecting candidates. The rules are, therefore, unauthorised and without jurisdiction. It has also been submitted in this connection that the power to select candidates for admission had been conferred on the Board and the Board is not competent to confer that power on the Central Selection Committee or delegate any part of its power to Selection Committee. It has also been submitted that the rules specifically do not provide for any review of the answer scripts and also for giving any opportunity to the candidates to see their answer scripts and as such the rules framed by the Board of Examiners are opposed to the rules of natural justice. It has also been submitted that there has been discrimination in the matter of assessment of answer scripts and giving grace marks which were given only to some selected candidates while excluding others from such benefits, thus treating equals unequally. It has also been submitted that one of the added petitioners Gunadhar Maity whose name duly appeared in the merit list and who was supplied with a form for admission in Medical College by the Central Selection Committee was illegally prevented from getting admission on the plea that there was a typographical mistake in the merit list.

Hence the Rules framed by the Board which provided that there will be no evaluation of answer scripts nor any review of the same nor the results would be published is. therefore, arbitrary and treasonable and so invalid and unenforceable. It has been observed in . Chief Settlement Commr. v. Om Prakash :

"In our constitutional system, the Central and the most characteristic foature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The Executive or Administration action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court of law. The rule of law rejects the conception of the Dual State in which Government action is placed in a privileged position of immunity from control bv law. Such a notion is foreign to our basic constitutional system."