Reserved
Special Appeal No. 554 of 2010
Dr.Arpit Jain and others Vs. Dr. Anurag Kumar Tiwari and others
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Hon'ble Ferdino Inacio Rebello, CJ
Hon'ble A.P.Sahi,J.
This is an appeal questioning the correctness of the judgment
of the learned Single Judge whereby an order passed by the Vice
Chancellor of the Banaras Hindu University dated 6.4.2010 and the
consequential notification dated 13.4.2010 have been quashed in relation
to the 2010 Post Graduate Admission Test in M.D./M.S. Courses against
43 seats for internal candidates.
The appellants before us are the respondents in the writ
petition and they submit that the order of the Vice Chancellor ought to
have been upheld as the procedure adopted by the two Incharge
Professors of Examination for preparing the results had vitiated the
process of evaluation of the OMR sheet of the examination, and as such
the Vice Chancellor was perfectly justified in issuing the direction for
holding a fresh examination.
The facts in short necessary for the adjudication for the
present controversy are that the University runs a Medical Institute with
provisions for Post Graduate courses in Medical Science and the process
for admission, conduct of courses and holding of examinations, followed
by award of degree are governed by the provisions of the Banaras Hindu
University Act, the Statutes framed thereunder and the Ordinances
adopted by the University read with circulars and decisions of the
University regarding procedure for the holding of such examination.
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The powers of the University in this regard remain undisputed
between the parties. Suffice it to say that that under the said powers a
Coordination Committee was duly constituted for over seeing the
procedure of the said examination. The Coordination Committee in its
meeting held on 12.11.2009 resolved to hold the examinations and
accordingly a schedule was prepared which is contained in the minutes,
and forms part of the record as Annexure 2 to the counter affidavit of the
University filed before the learned Single Judge. The resolution records
that a merit screening test shall be held captioned as the Banaras Hindu
University All India Entrance Examination, 2010. The admission procedure
for internal candidates namely those who have passed out from the
Banaras Hindu University was to be conducted in the manner as
prescribed in Resolution No.1(b). The test was to be held on 14.2.2010
and the prospective declaration of the result of the said test was
scheduled to be uploaded by the University as its website by the third
week of March, 2010. The test was to be an objective one comprising of
200 questions printed on the OMR sheet. A brochure to that effect was
also issued and in clause 9 of the said Resolution it was prescribed that
the evaluation of the said OMR sheets and its uploading on the University
Website will be done with the help of the Computer Centre of the
Banaras Hindu University. The preparation of the question paper being a
matter of utmost secrecy was left to the Professor Incharge to be handled
accordingly. It is to be noted that the Director of the Institute of Medical
Sciences under the orders of the Vice Chancellor of the University
informed Professor L.D. Misra of the Department of Anaesthesiology ,
I.M.S. Banaras Hindu University that he was being appointed as the
Professor Incharge of the M.D./M.S. Entrance Examination, 2010. Apart
from this Profesor S.K.Gupta of the Department of General Surgery was
appointed as Co-Incharge of the said examination.
The Information leaflet which was issued to the students has
been filed as Annexure 3 to the counter affidavit containing the provisions
in relation to evaluation of answer-sheet, result and selection which is
quoted below:
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“(i) Not withstanding any thing to the contrary contained
anywhere in the ordinances of the university, no
scrutiny/revaluation of the answer sheet shall be allowed on
any ground.”
The test was conducted as per the schedule and it is undisputed that 50
candidates appeared for the said examination against the internal 43
seats that were available. The two Incharge Professors are stated to have
manually checked the OMR sheets and the result of the scores obtained
by the candidates in the said examination was declared on 19.2.2010.
The said list is Annexure 4 to the counter affidavit of the University which
contained the marks obtained by all the said 50 students who had
appeared.
After the aforesaid list was published, three candidates, out of
whom the appellant no.1 Dr. Arpit Jain is one of them and one Dr. Rohit
Kumar and one Dr. Rahul Bharadwaj moved applications making a
request for certain informations under the Right to Information Act. The
request of Dr. Rohit Kumar and Dr. Arpit Jain the appellant was to provide
a copy of their OMR sheets and key answers as also the OMR sheets of all
so candidates. The request of Dr, Rahul Bharadwaj was in relation to the
number of students who had appeared in the general and OBC category
for the said examination.
The University, through the Information Officer, informed the
appellant Dr. Arpit Jain about the intimation given by the two Professors
who were Incharge of the Examination that the said request cannot be
entertained in the light of the conditions stipulated to the effect that
notwithstanding anything to the contrary contained in the Ordinances of
the University, no scrutiny or re-evaluation of the answer sheets shall be
allowed on any ground. It may be noted that the request of the
candidates was neither for scrutiny nor for re-evaluation and it was a
simple information sought under the Right to Information Act to the effect
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as indicated therein.
The turn in the dispute came thereafter when the two
Incharge Professors are stated to have proceeded on their own on the
premise that the candidates who had sought information under the Right
to Information Act appeared to be extremely dis-appointed with the
declaration of the results as they had scored much higher marks than
what has been indicated in the score list which was published. Another
candidate Dr. Shreyash Pandey is alleged to have approached the said
three Professors who is the appellant no.2 before us for supply of the
OMR sheet on 26.3.2010. The two Professors who were Incharge and Co-
Incharge decided to re-check the OMR answer sheets again as they
suspected that some mistakes might have occurred due to manual
checking. They appeared to have manually re-cheked the OMR sheets
again and in their reply dated 5.4.2010 before the Rector of the
University they have stated that they found a major error in the total of
the marks of the candidate Dr. Rohit Kumar. There was an enhancement
of 27 marks in the case of the said candidate as in the first score sheet,
marks obtained by him were 108 whereas in the manual re-checking they
were 135 .The score remained unchanged in respect of the other two
candidates. This mistake and this re-checking adopted by the two
Professor is alleged to have been brought to the notice of the Director
who is further alleged to have communicated to the two Professors r his
approval for re-checking through the Computer Centre as provided for in
the decision of the Coordination Committee. However, they further
alleged that they have been asked to re-check the OMR mark sheet a
third time before getting it scanned in the Computer Centre.
After such manual re-checking as well as the checking
through the OMR Scanner the two Professors Incharge revised the
merit list of the screening test which had been declared earlier and
prepared another list on 1.4.2010 which was put on the notice board
on2.4.2010 intimating change of marks in the scores obtained by seven
candidates. On publication of this second list several candidates moved a
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detailed representation to the Vice Chancellor on 3.4.2010 including
some of the present appellants and some of the contesting respondents.
Noticing the said complaint, a copy whereof has been filed as Annexure 1
to the stay application in the present appeal, the Vice Chancellor under
his order dated 4.4.2010 constituted a Committee with the Rector
Banaras Hindu University as a Chairperson and the Director of IMS , the
Controller of Examination as well as the Deputy Registrars as members to
enquire into the said complaint made by the candidates. A copy of the
said order is enclosed as Annexure 2 to the stay application. An
explanation was called for from the two Professors who were the Inchage
of the Screening Test and they submitted their replies on 2.4.2010, the
contents whereof have been indicated herein above. A copy of the said
reply is Annexure 3 to the stay application.
The report of the Committee was submitted to the Vice
Chancellor which is Annexure 4 to the stay application wherein the
Committee gave a finding that as per the instructions in relation to
scrutiny/re-evaluation is concerned, there was no occasion for any such
re-checking or re-evaluation by the two Professors who ought not to have
done it themselves and they did not bother to maintain any record of the
first or second or third manual evaluation. The Committee further found
that the re-evaluation attempted by the Professors was without any
formal request and the same was in violation of the rules. The Committee
further expressed surprise as to how the Professors missed the evaluation
of 50 questions in the OMR sheet of Dr. Rohit Kumar.
Accordingly the Committee recommended that the entire
process to be adopted for conduct of such tests should be reviewed
through an Expert and the possible lacunaes need to be identified and
corrective measures taken. The Committee concluded that the process of
evaluation was in contravention of the relevant rules and without due
care. A suggestion was made by the Committee which is to the following
effect:
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a) The entire test my be cancelled and fresh test may be conducted. This
would, however, mean penalizing the candidates for no fault of theirs and
may arouse genuine protests from them.
b) The result declared on 01.04.2010 may be cancelled since this is in
contravention of the explicit rule 3(iii) of the said test. However this
would lead to acceptance of the Mark list which has been shown to be
incorrect on subsequent computer verification.
c) The mark list declared on 19.02.2010 may be withdrawn and that
declared on 01.04.2010 may be declared as valid. However, in this
case, rule 3(iii) will stand violated.
The Vice Chancellor on a consideration of the said report
proceeded to pass an order on 6.4.2010 cancelling both the lists and
issued directions for holding examination afresh. This action of the Vice
Chancellor came to be challenged by the respondents-appellants praying
for the following relief:
“1. Issue writ order or direction in the nature of certiorari calling
upon the respondent no.3 to produce the order dated 6.4.2010
mentioned in the impugned order dated 13.4.2010 on records of
the writ petition and quash the said impugned order dated 6.4.2010
as also the order dated 13.4.2010, issued by respondent no.4
(Annexure 5 to the writ petition).
2. Issue a writ order or direction in the nature of mandamus
commanding the respondents 2,3 and 4 to hold counseling of the
petitioners for admission in MD/MS Course 2010 on the basis of first
merit list (Annexure-1) to the writ petition within fortnight from the
command of this Hon’ble Court.”
The appellants put in appearance and took a stand that the University in
the facts and circumstances of the case was justified in proceeding to hold
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fresh examination. The University also took a stand that the two
Professors who had conducted the examination had violated the
conditions in relation to scrutiny/re-evaluation which was impossible and
they on their own could not have proceeded to re-examine the answer
sheet as they had functious officio after the declaration of the first list on
19.2.2010. The University also contended that in such a situation the
order of the Vice Chancellor was justified and even if two views were
possible a judicial review may not be attempted keeping in view the
nature of the examinations that were pertaining to the Post Graduate
admissions which was submitted by the University . The holding of fresh
examination would ensure complete fairness towards all the candidates
and doubt expressed about functioning of the two Incharge Professors
would be set at rest.
The learned Single Judge took a view that the decision of the
Vice Chancellor did not indicate any reference to the fact that may have
perused the Vice Chancellor to doubt the sanctity of the examination and
therefore he could not order for the cancellation. The learned Single
Judge observed that what was required to be seen was any defeat of the
examination or mistake in evaluation of the OMR sheets. It was further
observed that the recommendations made by the committee to the Vice
Chancellor were not considered in correct perspective as the Committee
had given three options to the Vice Chancellor and it is not known as to
why the Vice Chancellor did not choose to accept the other options.
We have heard Sri P.N.Saxena learned senior counsel for the
respondents-appellants and Sri Ashok Khare learned senior counsel for
the private respondent nos. 1 to 36 and Sri V.K.Singh learned senior
counsel assisted by Sri Hem Pratap Singh for the respondent-university
and its authorities.
During the hearing of this appeal learned counsel have
brought to the notice of this Court the order passed by the Supreme
Court dated 13.5.2010 wherein certain directions have been given after
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hearing the learned counsel for the M.C.I., the State of U.P. and the other
States whereby their Lordship have fixed a final deadline for the students
to join the allotted course by 30.6.2010. It has further been directed by
the Supreme Court that the unfilled seats of All India Quota would be
deemed to have lapsed. It is, therefore clear that the mandate of the
Supreme Court with regard to the completion of such admissions is
clearly to the effect that it shall be completed by 30.6.2010.
In the instant case the judgment was delivered by the learned
Single Judge on 21.5.2010 and it is admitted that on all hands that under
the interim order passed in this special appeal, the candidates including a
majority of the contestants before us have been granted admissions
under the second revised score list which was declared on1.4.2010 and
published on2.4.2010. Thus the directions of the learned single judge
have been complied with.
Sri P.N.Saxena learned counsel for the appellants contends
that the procedure adopted by the two Professors in hastily declaring the
result on a manual check of the OMR sheets is in contravention of the
mode prescribed which should have been done by the Computer Centre
through a scanner. He submits that there was no occasion for the two
Incharge Professors to have under taken the evaluation themselves
manually. He further submits not only this, the manner in which there has
been a substantial change in marks of one of the students, and few minor
changes in the case of six other students raises a serious suspicion and a
genuine doubt about the conduct of the two Professors who undertook
the exercise of change of answer sheets manually. He further submits
that there was no provision for any such re-checking or scrutiny and the
declaration of the list on 1.4.2010 was unsupported by any authority. It
has further contended that the learned Single Judge committed an error
by accepting the submissions made by the respondents-petitioners which
was directly in conflict with the relief claimed by them. He submits that
the respondent-petitioners had clearly questioned the correctness of the
subsequent list and had prayed for admissions being made on the basis of
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the first list published on 19.2.2010. Accordingly it is submitted that the
learned Single Judge ought not to have granted the relief as prayed for.
Sri Saxena has further invited our attention to the application
moved in this special appeal making a prayer that an appropriate
direction be issued to the University to ensure transparency in holding of
the examinations and the declaration of the results as well as evaluation
of the OMR sheets so that in case any student has any doubt the same
can be ascertained by adopting a fair procedure.
Sri V.K. Singh learned senior counsel for the University
contends that the University may not have filed an appeal against the
impugned order yet the University supports the cause of the appellants
and at the same time would abide by the orders of this Court. He however
takes exception to the finding and observations that were made by the
learned Single Judge on the steps taken by the Vice Chancellor and he
submits that the Vice Chancellor in order to ensure fairness had taken a
decision to cancel the examinations on the asking of the candidates
themselves. He further submits that prompt decision by the Vice
Chancellor was taken as he was wholly unaware about the two Incharge
Professors having manually evaluated the results who upturned the same
through a revised list. He further informs the Court that the Vice
Chancellor was not made aware of any such action being taken by the
two Professors and they did it on their own without any authority.
Accordingly the Vice Chancellor immediately constituted an Enquiry
Committee and after having received the findings of the said Committee
cancelled the examination in order to ensure fair admission in the Post
Graduate courses.
Sri Ashok Khare, learned senior counsel for the respondents
has come with a case that as a matter of fact there was an error of
tabulation and even though the respondents-petitioners had initially
prayed for maintaining the selection on the basis of the first list, yet they
were satisfied with the second list and therefore, this Court may not
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interfere with the directions of the learned Single Judge, more so when
the admissions have already been completed within the time schedule
given by the Apex Court.
Having carefully examined the record we may at the very out
set clarify that in view of the specific schedule fixed by the Apex Court for
finalising of admissions for the allotted courses by 30.6.2010 we would
not prefer to disturb the admissions and issue directions for holding of a
fresh examination. In our opinion, this would violate the deadline fixed
by the Apex Court in Writ Petition (Civil) No(s). 189 of 2010 Naval Asija
and others Versus Union of India and others disposed on on 13.5.2010.
The admissions as intimated by the learned counsel having been
completed, the same need not be disturbed at this stage.
The question which has been raised before us is that the two
Professors who were made Incharge were not empowered to enter into
the re-evaluation or scrutiny for re-calculating the marks as per the
provision indicated above. Sri V.K.Singh learned senior counsel for the
University has produced the original answer sheets before us. Having
perused the same, particularly with regard to the answer sheet of Dr.
Rohit Kumar, we find that out of 150 questions answered by him, the said
candidate had obtained 108 marks whereas after the re-checking in
respect of 50 questions of the last column he has been awarded 27
additional marks, which the two Professors stated that it had been left
out and not evaluated due to inadvertence. Even if the doubt expressed
by the appellants is taken into consideration then the candidate who had
obtained substantial marks namely 108 out of 150, a presumption prima
facie on the basis of his performance can be drawn that the candidates
could have possibly answered the last column as well and was capable of
obtaining 27 marks. This would be in proportion to his previous marks
obtained. We may not be construed to express any final opinion on the
aforesaid process of award of additional marks to Dr. Rohit Kumar but we
have stated this as a prima facie observation. Nonetheless the Committee
which had submitted its report did not comment on the enhancement of
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marks as a forgery and only expressed its doubt and surprise about non
evaluation by the two Professors. The Committee mainly rested its
decision on a manual proceeding of evaluation as adopted by the two
Professors Incharge.
We have reservations about the manner in which the two
Professors proceeded for changing and re-changing the method of
evaluation. The Vice Chancellor therefore in our opinion cannot be said to
have taken an irrational or perverse decision and he may have been
justified in arriving at the conclusion.
We therefore accept the contention of Sri V.K.Singh learned
counsel for the University that the learned Single Judge was not justified
in commenting upon any lapse on the part of the Vice Chancellor. The
Vice Chancellor in our opinion, faced with such a situation rightly took the
steps to rectify the error if any. It is something different that the
mistakes as reflected by the two Incharge Professors may have been
genuine but we are not required to go into the same, more so when the
Vice Chancellor has already passed an order for fixing the responsibility
on the concerned persons for the alleged lapses.
What remains to be indicated by us is the suggestion made
by the appellants through an application for ensuring transparency in
future examinations. Sri P.N.Saxena submits that appropriate directions
be issued by this Court to ensure transparency in future examinations so
that such mistakes would not be repeated in future. To this proposal
neither the learned counsel for the University nor the respondents-
petitioners have any objection.
The episode which gave rise to this controversy involves the
fate of candidates who prepare themselves for acquiring Post Graduate
course in the field of Medicine. They have high hopes and their stakes are
such that in our opinion the aforesaid suggestion by Sri Saxena deserves
to be accepted. This dispute definitely reflects that the fate of the
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students was put in jeopardy by adopting of a procedure which cannot be
said to be thoroughly transparent. It is undisputed that the candidates are
not allowed to take back their question papers. It is also undisputed that
no carbon copy of the OMR sheets are provided to the candidates and the
key answers are not loaded on the website of the University. This is also
evident from the attitude of the University as per the reply given under
the Right to Information Act where the request for supply of OMR sheet
but there was a clear refusal on the part of the University.
In our opinion such a practice cannot be said to be fair to the
candidates. The candidates are entitled to know as to how and in what
manner their answers do not match with the key answers. For this they
are entitled to retain their question papers, a carbon copy of the OMR
sheets and information about the key answers.
We therefore direct the University that in order to ensure
free and fair examinations and in order to remove any doubt or suspicion
in the mind of the candidates, the University shall in such forthcoming
Entrance Examinations for Post Graduate Admissions introduce a system
of allowing the candidates to retain their question papers. The University
shall also make a provision for a carbon copy of the OMR sheets and allow
the candidates to retain the same and shall also make available the key
answers to the questions after declaration of the results in case of
demand by any candidate by placing it on the website of the University.
Accordingly without disturbing the provisional admissions
made under the order of this Court , the special appeal is disposed of with
the aforesaid directions. The candidates who have been admitted for
their allotted courses their admissions shall be treated to be final if they
are otherwise eligible for the same.
8th July, 2010
mna