University of Calcutta v. Gautam Kumar Roy — 1990 DIGILAW 190 (CAL)

JUDGMENT P. D Desai, C.J. (C.A.V.): In this group of eighteen appeals, which arise out of writ petitions filed on the Appellate Side by candidates seeking admission to The Post Graduate Medical Course in various Disciplines, the interim order under challenge at the instance of the appellants (University of Calcutta and Secretary of Faculty Council for Post Graduate Studies in Medicine) directs that provisional admission be granted to the concerned respondents (writ petitioners) "without prejudice and subject to the final result of the writ petitions and subject further to their compliance of other formalities in accordance with law. A simultaneous direction has been issued to the Medical Council of India to grant the necessary permission in that regard. 2. Since common questions of law and fact arise in these appeals and they are directed against a common order, they have been heard together and are being disposed of by this common judgment. 3. The introduction facts are that the University of Calcutta, hereinafter called "the University", awards Pmt Graduate Medical Degree or Diploma, as the case may be, to those students who successfully complete the respective course in the concerned Discipline. The number of seats in each Degree and Diploma Course is fixed as per the norms laid down by the Medical Council of India. The competing candidates for admission to these various courses being far in excess of the number of available seats, admission is granted in order of merit adjudged on the basis of the multiple choice objective type test, hereinafter called "the test", which is a recognised mode of assessment of merits. 4. So far as the cases in hand are concerned, the test was held by the University College of Medicine in October 1989 for the purpose of giving admission in different Post Graduate Medical Courses for the academic sessions 1989-91. The question paper for each test was prepared by a teacher/expert in the respective Discipline drawn from outside the State. 95 marks in the aggregate were earmarked for the test in which 95 objective type or questions, each carrying one mark, were set for each paper and they had to be answered in 75 minutes' time. Against each question multiple answers were indicated in the question paper, but one only out of those answers selected by the teacher/expert who drew the paper was to be considered as correct. Against each question multiple answers were indicated in the question paper, but one only out of those answers selected by the teacher/expert who drew the paper was to be considered as correct. Such answer is hereinafter called "the key answer". If a candidate answered the questions as per the key answers 'he was given one mark for each question. For each incorrect answer, however, a deduction of 1/2 mark by way of negative marking was made. The aggregate marks obtained by each candidate were ascertained with the aid of a computer in which the key answer to each question was fed, A merit list was thereafter prepared and published on November 8, 1989. Admission in each course was given against the available seats in order of merit as per the said list. The mark secured by the candidate, who obtained admission against the last available seat in a discipline, were treated as "the qualifying marks" for such Discipline. None having less than the qualifying marks got admission, even if the percentage of marks secured by him at the fest was otherwise high, In case of two or more candidates obtaining equal qualifying marks, the formula for resolving the tie as per the relevant rule was that the one out of them who passed the M.B.B.S. examination at the first attempt would get priority and, in case anyone or more of such candidates passed the M.B.B.S. examination at first attempt,' the higher marks obtained in the concerned subject in the M.B.B.S. examination were treated as the determining factor. 5. It is not uncommon to find in some tests or examinations and more particularly in a test of this nature that the difference between the qualifying marks and the marks obtained by the candidate next in order of merit, who fails to get admission, is very often minimal and may sometimes be even less than a fraction of one mark. To secure the much coveted admission to a Post Graduate Medical Course with a limited number of seats is thus akin to the photo-finish success at an obstacle race. 6. It is also not uncommon to find a test of this type throwing up a controversy as to the correctness of the key answer itself and as to the resultant relief to which a candidate thereat is entitled in such a situation. 6. It is also not uncommon to find a test of this type throwing up a controversy as to the correctness of the key answer itself and as to the resultant relief to which a candidate thereat is entitled in such a situation. Although the key answer should be assumed to be correct unless it is proved to be wrong and it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation, the key answer is sometimes found to be demonstrably wrong, that is, such as no reasonable body of persons well-versed in the particular subject would regard as correct. Not only this but it is also' found. that the answer given by the candidate is correct regard being had to the acknowledged text books on the subject which he was expected to read and consult before appearing at the test. In such a case, it would be unfair to penalise the candidate for not giving the answer which accords with the key answer, that is, the answer which was demonstrated to be wrong. When it is proved that the answer given by a candidate is correct and that the key answer is demonstrably wrong the candidate is entitled to an appropriate relief in the course of a judicial proceeding. It is well to remember, however, that in case of doubt or in a situation-where both answers, namely, the one given by the candidate as well as the key answer are found to be correct by the Court on the basis of recognised or acknowledged text books, the candidate cannot succeed. (See Kanpur University & Ors. v. Samir Gupta & Ors., AIR 1983 SC and Abhijit Sen & Ors. v. State of U. P. & Ors. AIR 1984 SC 1402). 7. Experience shows that a test of this type results in a huge spurt of writ petitions in the High Court no sooner the merit list is published and the process of admission to different Courses starts. Those who fail to get admission challenge the fairness of the test on the ground that the key answer (s) to (question(s) is demonstrable wrong and that re-evaluation of the answer (s) with reference to the standard text books would enable them to steal a march over the candidates who got admitted against the available seats on the basis of the qualifying marks. Experience has also shown, much to the chagrin of the Court and to the disenchantment and exasperation of the litigants, that in view of the huge accumulation of cases, more often than not it takes a long time for such writ petitions to be heard and decided. Avowedly with a view to subserving the ends of justice, a remedial measure ha" therefore. been adopted by the Courts over a period of time of issuing directions to the authorities to grant provisional admission to the unsuccessful candidates, who have challenged the fairness of the test. subject to the final outcome of the writ petitions. This has often given rise to a piquant and perplexing situation because by the time the final hearing takes place the beneficiaries-the rejected candidates-have completed the course(s) and even appeared at the examination(s). A fait accompli thus presents itself with sympathetic considerations and compulsion of situation weighing heavily in favour of those candidates. This is apart from the question of desirability of creating additional seats for extra candidates even if the requisite faculty strength and infra-structural facilities may not be available and the approval of the Medical Council of India may not be readily forthcoming on the ground that the high standard of medical education would suffer. The remedy may thus often prove to be worse than the disease. 8. The Apex Court has provided a clear guideline for the grant of interim relief whenever such tests give rise to a litigation which is not likely to terminate soon. Says the Court in K. P. Ganguly v. University of Lucknow. AIR 1984 SC 186 : "Our suggestion. therefore is that whenever a writ petition is filed provisional admission should not be given as a matter of course on the petition being admitted unless the Court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible. In order, however, to test this fact even a short notice may be given to explore as to what the other side has to say and thereafter if the Court is satisfied that there is strong prima facie case and the matter needs thorough examination, provisional admission may be given. In order, however, to test this fact even a short notice may be given to explore as to what the other side has to say and thereafter if the Court is satisfied that there is strong prima facie case and the matter needs thorough examination, provisional admission may be given. We hope and trust that the High Courts would in future discontinue the practice of lightly granting provisional admission to the candidates at the time of regular admission, as observed above. It is needless to state that this Court on its part would also be extremely reluctant to grant provisional admission and would do so only in a very special case. The fundamental reason for this is that otherwise the institutions are likely to become overcrowded by candidates, eligible or ineligible, efficient or inefficient. Unless the Institutions can provide complete and full facilities for the training of each candidate who is admitted in the various disciplines, the medical education will be incomplete and the universities would be turning out Doctors not fully qualified which would adversely affect the health of the people in general." 9. In the present case, the Trial Court was alive to the requirement of treading the well-marked track and this is apparent from the orders which have been passed and which would be presently referred to. The appellants complain, however, that at the milestone at which the order under appeal was passed the Trial Court turned away from the track and deviated from the path. The precise grouse is that a wrong precedent is being Set up by the wrongful exercise of discretion and that, therefore, the Appeal Court must intervene to correct the error. The respondents (Writ Petitioners) contend, on the other hand, that the Trial Court has not swerved from the course and that the grant of interim relief under the impugned order in the in the exercise of discretionary powers is neither wrongful nor improper nor vitiated by unjudicial approach. They plead that the future of twenty students, who are eager to prosecute Post Graduate Degree Courses but are arbitrarily kept out, is at stake and that a just order passed in their favour upon a balanced consideration of rival interests should not be disturbed by appellate interjection. 10. They plead that the future of twenty students, who are eager to prosecute Post Graduate Degree Courses but are arbitrarily kept out, is at stake and that a just order passed in their favour upon a balanced consideration of rival interests should not be disturbed by appellate interjection. 10. The controversy thus lies in a narrow compass but the cases have been argued with vehemence and force and the range of debate has been wide, Steering clear of the avoidable controversies and without appearing to prejudge the issues to be decided at the trial of the pending Writ petitions, we have to endeavour to arrive at a proper decision in light of the well settled principles, the background facts and the development during the pendency of the proceedings in the Trial Court, keeping in mind at the same time the opinion of the Trial Court and the conflicting interests of the institutions and the individuals involved. 11. With these prefatory observations, now to the further facts of the cases. The concerned respondents (Writ Petitioners) were candidates for admission to the following courses: M. D. (Obstetrics & Gynaecology) M. S. (General Surgery) M. S. (Opthalmology) M. S. (Orthopaedics) According to the University, the total number of seats in these Courses is 25, 25, 8 and 8 respectively. In eacl1 Course a number of seats is reserved for the candidates sponsored by the authorities of the West Bengal Health Services. Out of the aforementioned total seats, 5.5,2 and 2 are reserved respectively for the candidates belonging to the West Bengal Health Services. All the seats, general and reserved, are stated to have been filled up. 12. Out of the twenty respondents (Writ Petitioners), ten are aspirants for admission in Obstetrics & Gynaecology Course, six in General Surgery Course, three in Opthalmology Course and one in Orthopaedics Course. Four of the concerned respondents seek admission in seats reserved for the West Bengal Health Services and all of them want admission in Obstetrics & Gynaecology Course. 13. The Writ petitions giving rise to the present appeals and many more were moved between the end of November 1989 and the middle of March 1990. The Trial Court passed several interim orders governing these cases. Those orders were passed on December 6. 1989. February 20, 1990, February 26, 1990 and March 16, 1990. The last mentioned order is the one under appeal. 14. The Trial Court passed several interim orders governing these cases. Those orders were passed on December 6. 1989. February 20, 1990, February 26, 1990 and March 16, 1990. The last mentioned order is the one under appeal. 14. The order dated December 6. 1989 issued directions for the filing of affidavit-in-opposition by the University and affidavit-in-reply by the Writ petitioners and the cases were ordered to be listed as contested applications three weeks after the Christmas Holidays. Reference wits made in the order to the principles laid down in Samir Gupta's case (supra" Abhijit Sen's case (supra) and K. P. Ganguly's case (supra). The ratio of those decisions, according to the Trial Court, was that "in an appropriate case the Court may examine as to whether there has been proper examination of objective type questions and a, to whether there is any anomaly so as to deprive a bona fide candidate for not being admitted to the course in question and that the Court could direct provisional admission to academic course only when the petitioner has a castiron case which is bound to succeed or the error committed by the authorities is so gross or apparent that no other conclusion was possible". In light of the ratio accordingly culled out it was observed that "until and unless there is such a prima facie case proved by the petitioner to enable him to be admitted, no question of mandatory order should be passed in the form of interim order in nature". In light of the ratio accordingly culled out it was observed that "until and unless there is such a prima facie case proved by the petitioner to enable him to be admitted, no question of mandatory order should be passed in the form of interim order in nature". Then follow the pertinent observations which arc extracted hereinbelow: "However, in view of the allegations made by the petitioner this Court has thought it fit that an expert's view is required to ascertain as to whether the objective type questions with answer or the model answers are only the correct answers and the answers given by the candidates on the basis of the authorities are at variance with the model answers and if there is anomaly in the question which cannot be answered effectively to the prejudice of the candidates concerned." The Vice-Chancellor of the University was, therefore, directed to appoint an expert in each discipline of the concerned Post Graduate Courses (other than the examiners of the University or persons associated with the University in any other capacity whatsoever) within a fortnight and the answer scripts of the candidates concerned along with the question papers and the model answers were ordered to be forwarded to such experts who were asked to record their views in a report to be sent directly to the Court in a sealed cover along with the documents aforementioned. The experts were directed to give their respective views upon examination of the points as indicated above" within a month from the date of communication by the Vice-Chancellor. The Trial Court further observed as follows; "The question of passing of any order of admission to the course in question provisionally will be considered with reference to the report of such experts." (Underlining supplied) It was clarified that any further admission to the M. D. Course would be subject to the result of further orders on the pending Writ petitions. 15. In the order dated 'February 20, 1990, the Trial Court recorded that the reports of experts in sealed covers were filed in the Court and directed that they be taken on record. The learned Advocates for the parties were permitted to inspect those reports and other connected papers. It was clarified that the learned Advocates alone and not the candidates would have access to those reports. The learned Advocates for the parties were permitted to inspect those reports and other connected papers. It was clarified that the learned Advocates alone and not the candidates would have access to those reports. It is not in dispute that though the said order was expressly made applicable to six pending cases the inspection of the reports was given in due course to the learned Advocates of different Writ petitioners including those of the concerned respondents herein. 16. On February 26, 1990, an order was passed recording that the University authorities had agreed to file a statement indicating the original marks obtained by each candidate and the change of marks, if any, as a result of the review in light of the reports of the experts. The University was directed to disclose to the Court the last qualifying marks for admission to the Courses in each discipline in a sealed cover. 17. The order dated March 16, 1990, which is the subject matter of these appeals, recalls the history of the cases. It records further that the University had prepared and produced a chart containing names of sixty-four candidates seeking admission in different courses (including those of the writ petitioners) along with the marks originally obtained by them and the improvement. if any, in those marks as a result of the expert's reports and the qualifying marks in each discipline (which were not disclosed to the learned Advocates for the parties). The order also speaks of hearing having been given to the learned Advocates after the experts' reports were filed and inspected. Then the following further observations which are reproduced verbatim. followed : "Having scrutinised the reports of the Experts in depth and looking to the answer scripts of the candidate, and the answers given by the candidates and also considering the Authorities as to the correctness of the answers, this Court finds that the matter has got to be considered further in details at the time of final hearing of the case, Directions have already been given to file the affidavits to dispose of the case effectively. This Court, has, however, observed in order dated 6.12.89 that the Apex Court of the country has held that the Court could direct provisional admission to the academic course when the petitioner has a castiron case or that there is a chance of success and there is a strong prima facia case as to the error committed by the Authorities is very prominent. This Court also observed that after the Expert's report is made available, this Court will have to consider the case of provisional admission of the candidates and the Learned Counsel for the petitioner and the University Authorities have agreed accordingly. With great anxieties, this Court has scrutinised all the Experts' Reports and the improvement of the marks of certain candidates and the last qualifying marks indicated by University Authorities. This Court is of the view that strictly on merit and on a borderline case relating to the candidates whose chances of success are found prima facie very bright should be admitted provisionally. This Court directs the respondent University Authorities to allow such candidates to be provisionally admitted without prejudice and subject to the final result of the writ petition, and the Medical Council will grant necessary permission in this regard. The names of the following candidates are indicated hereinbelow and they are entitled to be provisionally admitted in the M.D./M.S. Course of different discipline as indicated against their names on condition that they will comply with other formalities in accordance with law. The provisional admission has to be effected by the University Authorities within 10 (ten) days from date, and upon fulfilling the necessary formalities, the candidates concerned will be allowed to join the regular classes without prejudice and subject to the final result of the case." 18. Twenty six writ petitioners, whose names are set out in the' order, were ordered to be granted provisional admission accordingly in different disciplines. The names of twenty concerned respondents herein find place in the list. 19. The applications for interim relief during the pendency of the appeals were moved on or about March 22, 1990. Ad interim stay of the operation and implementation of the order under appeal was granted on that day till March 28. 1990. The names of twenty concerned respondents herein find place in the list. 19. The applications for interim relief during the pendency of the appeals were moved on or about March 22, 1990. Ad interim stay of the operation and implementation of the order under appeal was granted on that day till March 28. 1990. Notice of the applications was directed to be served on the Medical Council of India and affidavits were ordered to be exchanged between the parties before the next day of hearing which was fixed on March 27, 1990. 20. Upon request of the Medical Council of India, which caused an appearance to be made on March 27, 1990, the cases were adjourned to April 2, 1990 and the ad interim relief was continued till April 3, 1990. The hearing of appeals along with the applications took place thereafter from time to time and concluded on April 16, 1990. The ad interim relief was continued and has remained operative till today. 21, On behalf of the appellants it is clarified that although provisional admission was ordered to be granted to twentysix writ petitioners in different Courses the appeals are confined to twenty of such writ petitioners only because the remaining six writ petitioners have obtained higher than the qualifying marks upon reassessment of their answer papers in light of the opinion of the concerned experts and they have already been granted provisional admission. The grant of provisional admission to the remaining twenty writ petitioners is challenged on the ground, 'inter alia, that they failed to secure more than the qualifying marks even after reassessment of their papers on the basis of the experts' opinion, that three out of them have been granted provisional admission in a Course in respect of which no ambiguity, defect or error whatever was found by the concerned expert in any of the objective type questions and/or key answers and the test of "border line cases" adopted by the learned Trial Judge without recording a precise finding as to any other or further question(s) or key answer(s) being patently defective, anomalous or erroneous is vitiated by unjudicial approach and is contrary to law and facts and to the principles enunciated and the guidelines laid down in Samir Gupta's case (supra) and K. P. Ganguly's case (supra), especially when even a marginal shortfall-a fraction of a mark less than the qualifying marks.-results in denial of admission. The impugned order is unsustainable, according to the University, also because a large number of additional seats will have to be created for which no material is available on record whether the retruisite faculty strength and infra-structural facilities are existing in the concerned Teaching Institutions and with respect to which neither the Indian Medical Council nor the concerned authorities were heard. 22. On behalf of the concerned respondents (writ petitioners) it has been submitted that the report(s) of the expert(s) suffered from glaring infirmities which were brought to the notice of the Trial Court and that the impugned order granting provisional admission was passed after taking into consideration, inter alia. those infirmities. The shortfall, if any, in obtaining more than the qualifying marks did not rightly weigh with the Trial Court since, upon examination of the entire materials on record, these were found to be border line cases where the deficiency, if any. in touching or crossing the qualifying marks was found to be meagre and likely to be made up in all probability, after proper scrutiny of all the ambiguous and defective questions or demomtrably wrong key answers. For the grant of provisional admission, submit the concerned respondents, it is not required to be found concussively that the questions are defective or the key answers are demonstrably wrong; it should be good enough if there is preponderance of probability of the ultimate success. For the grant of provisional admission, submit the concerned respondents, it is not required to be found concussively that the questions are defective or the key answers are demonstrably wrong; it should be good enough if there is preponderance of probability of the ultimate success. 23. On behalf of the Medical Council of India, a common affidavit-in-opposition to the applications for interim relief has been tiled by its Secretary. Dr. P. S. Jain. In the course of the said affidavit, it is submitted, inter alia, that the number of seats for each Discipline in the Post Graduate Medical Courses in different Universities including the Calcutta University is fixed in accordance with the norms laid down by the Medical Council of India in the interest of maintaining high standard of medical education and that the students should not be admitted in those Courses in excess of the number of seats accordingly fixed. It is submitted further that the effect of the Trial Court's order granting provisional admission to a large number of candidates including those who had not secured the qualifying marks even after reassessment on the basis of the concerned expert's opinions would he to frustrate the very object and purpose of limiting the number of seats in different Courses and would contravene the regulations framed in that regard under the Indian Medical Council Act, 1956. The following observations in State of Maharashtra v. Minoo Noazer Kavarana & Ors. AIR 1989 SC 1513 have been extracted and reproduced in the affidavit: "There is considerable force in the contention of Mr. Ramaswamy that the High Court was also not justified in directing creation of additional seats. The additional seats can be created only if the Indian Medical Council approves of such creation. In the instant case, the Indian Medical Council has vehemently opposed before us the creation of the additional seats. There is also the question of bearing the cost of creation of additional seats. The High Court, in our opinion, should not have directed the creation of additional seats. In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats after giving the Indian Medical Council an opportunity of being heard, but surely the Court should not direct the creation of so many additional seats. when neither the Government nor the Indian Medical Council consents to such creation. In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats after giving the Indian Medical Council an opportunity of being heard, but surely the Court should not direct the creation of so many additional seats. when neither the Government nor the Indian Medical Council consents to such creation. In the circumstances, it is difficult to sustain the impugned judgment of the High Court." 24. Reference is also made in the affidavit to the common judgment rendered on January 30, 1990 by the Supreme Court of India in Civil Appeal No, 4908 of 1989 (Sandeep Barar v. State of Punjab) and four companion appeals and a copy of the operative part of the said judgement is annexed to highlight the point that the respondent State was directed in that case to create three additional seats only with the approval of the Indian Medical Council and that three students were directed to be accommodated against those additional sears if such approval was accorded. . 25. In the supplementary affidavit filed on behalf of the concerned respondents (Writ petitioners) to meet with the case of the Medical Council of India as set out in its affidavit-in-opposition, the main submission is that the Council, although it was served with an advance copy of the Writ Petition(s), failed to appear or file an affidavit before the Trial Court and that it is not justified in taking exception to the order impugned in the appeal under those circumstances especially when no separate appeal has been preferred on its behalf. Besides, the requirement of limiting the number of seats in different Courses to maintain high standard of medical education necessarily entails a duty to examine periodically whether. in light of the norms laid down in the statutory regulations. the sanctioned strength in a Course is based on optimum utilisation of the faculty strength and infrastructural facilities in each Discipline. This exercise according to the concerned respondents, has not been undertaken so far as the sanctioned seats in the Courses in question are concerned. Reliance is also placed in the supplementary affidavit on the following observations in Punjab Engineering College, Chandigarh v. Sanjay Gulati & ors. This exercise according to the concerned respondents, has not been undertaken so far as the sanctioned seats in the Courses in question are concerned. Reliance is also placed in the supplementary affidavit on the following observations in Punjab Engineering College, Chandigarh v. Sanjay Gulati & ors. AIR 1983 SC 580 : "It is strange that in all such cases, the authorities who make submissions by ignoring the rules of admissions contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to Medical Colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to'-the wrong ad missions made." 26. It is urged that the .concern of the Medical Council of India regarding the maintenance of proper standard of Post Graduate Medical education should match with the requirement of selection of candidates for admission in the concerned Courses upon a proper evaluation of comparative merit on the basis of a fair test. 27. These rival submissions show that the controversy is sought to he somewhat enlarged beyond what is required to be really decided at the present stage of the proceedings. It cannot and should not be overlooked that the appeals are directed against an interim and not a final order. The point in issue is not whether there is justification in law and fact for finally ordering admission in the concerned Courses by the creation of extra scats but whether pending adjudication there is a case for ordering provisional admission in additional seats to be temporarily created. The debate, therefore, is required to be confined to the limited issue, namely, whether applying the principles in K. P. Ganguly's case (supra) to the facts of the cases in hand, the order granting provisional admission is sustainable in law. 28. The debate, therefore, is required to be confined to the limited issue, namely, whether applying the principles in K. P. Ganguly's case (supra) to the facts of the cases in hand, the order granting provisional admission is sustainable in law. 28. Now, in the order dated December 6, 1989, the Trial Court rightly observed that provisional admission could be ordered only when there is a castiron case which is bound to succeed or the error committed is so gross or apparent that no other conclusion is possible. Having regard to the challenge levelled in the writ petitions to the questions and key answers pertaining to different Disciplines, duly supported by extracts from standard text books or recognised treatises, the Trial Court was fully justified in directing the appointment of an expert in each Discipline with a view to getting the benefit of his views on the issue whether the questions were glaringly and patently anomalous or defective and/or whether the key answers were the sole answers or whether given by the concerned respondents on the basis of authentic text books, even if they were at variance with the key answers, were the only possible answers. In the situation with which it was faced, this was the most correct method, in our opinion, for ascertaining whether it cast iron or strong prima facie case of gross and apparent errors was made out so that, as observed in it said order, the question of orderining provisional admission could be considered "with reference to the report of such experts". Be it stated that none objected to this procedure being adopted-rightly so-and that it was carried into effect without demur. 29. The experts in each of the four Disciplines herein involved submitted their separate reports keeping in view the observations made in the Trial Court's order. The expert in the Discipline of Obstetrics & Gynaecology opined that excepting seven questions/key answers identified by him, the others were the only correct key answers of the questions. The expert in the Discipline of General Surgery opined that excepting in one question he did not find any ambiguity and that the key answers of alt the questions excepting that question were the only correct answers. The expert in the Discipline of Opthalmology opined that all the questions were by and large simple basic and unambigous. The expert in the Discipline of General Surgery opined that excepting in one question he did not find any ambiguity and that the key answers of alt the questions excepting that question were the only correct answers. The expert in the Discipline of Opthalmology opined that all the questions were by and large simple basic and unambigous. The clearly expressed the view: "......there is no ambiguity in the questions......and the model answers are only the correct answers". The expert in the Discipline of Orthopaedics opined that excepting two questions, all the key answers were the only correct answers of the questions and that there was no ambiguity or anomaly in the questions or in the key answers. 30. Be it stated that the Trial Court allowed access to the experts' reports only to the learned Advocates and not to the concerned respondents. We see no reason, however, to cover those reports with such partial veil of secrecy. The reports having been made a part of the record and being the material evidence for deciding the question of grant of provisional admission should have been left open to inspection even by the parties. It is not clear whether the University objected to the disclosure of the reports. In any case, there cannot be any sustainable objection based on the claim of privilege or otherwise against the disclosure under such circumstances, We have, therefore, referred to the substance of the reports in the preceding paragraph. 31. Under the directions of the Trial Court issued after the submission of the experts' reports, the appellants prepared and submitted a tabular statement in respect of sixty-four writ petitioners including the concerned respondents herein giving the following particulars: Roll No., Course, Name of the candidate, Marks originally obtained by the candidate and Marks, if any, awarded by the expert. A copy of the said statement is annexed to the applications for interim relief as Annexure 'C'. The relevant extract from the statement pertaining to each writ petitioner was given to his learned Advocate. In compliance of the previous order of the Trial Court, the appellants also submitted in a sealed cover the statement of qualifying marks of the last admitted candidate in each Course. 32. We have persued the statements accordingly prepared. The relevant extract from the statement pertaining to each writ petitioner was given to his learned Advocate. In compliance of the previous order of the Trial Court, the appellants also submitted in a sealed cover the statement of qualifying marks of the last admitted candidate in each Course. 32. We have persued the statements accordingly prepared. We find that respondents Nikhilendu Mahaprata and Bijoy Kumar Gulgulia in F.M.A.T. No. 747 of 1990 and F.M A.T. No. 752 of 1990 respectively who were seeking admission in M. D. (Ohstetrics & Gynaecology) and (General Surgery) Course respectively, were rightly directed to be provisionally admitted taking into account the qualifying marks of the last admitted candidate in the concerned Courses and the marks obtained by the said candidates upon reevaluation of their answer papers in light of the experts' opinion. So far as they are concerned, therefore, the test of castiron or strong prima facie case for provisional admission could be regarded as having been made out. At least one candidate, Pulak Kumar Saha (Obstetrics & Gynaecology), who appears to be similarly situate, as granted provisional admission and there is no appeal against the order in so far as it concerned him. Under such circumstances. we fad to see any justification for the preferment of appeal in these two cases and see no valid ground to interfere with the Trial Court's order in favour of these respondents. 33. As regards the remaining eighteen respondents/writ petitioners, we find that they have not succeeded in obtaining marks higher than or equal to the qualifying marks of last admitted candidate in the concerned Courses, even after giving due credit for the extra mark, if any, obtained by them in light of the experts' opinion. There does not appear to be any valid reason or justification for granting provisional admission to them for more than one reason. 34. There does not appear to be any valid reason or justification for granting provisional admission to them for more than one reason. 34. In the first place, the reports of the experts having been rightly called for with the avowed object of ascertaining whether a strong prima facie case of gross and apparent errors with no other conclusion possible was made out and it having been unequivocally pronounced in the order passed on December 6, 1939, which was, accepted by and on behalf of all the parties, that the question of granting provisional admission would be considered with reference to such reports, it was not a proper exercise of discretion to grant provisional admission to these eighteen respondents by disregarding such reports. Haying thus resorted to the proper and correct method and mechanism for ascertaining whether a castiron case was made out so as to justify the grant of provisional admission, there was no justification, with respect, at the stage at which the proceedings stood, to probe into and sit in judgment over the experts' reports and, presumably finding some fault therein, not to act or act fully upon them. 35. In the next place, the grant of provisional admission in the border line cases", that is to say, cases in which there was supposedly a marginal shortfall of marks as compared to the qualifying marks, even after giving due credit for the extra marks earned on the basis of experts' reports, on the ground that chances of success in those cases were very bright, is open to question for several reasons. The identification of such cases would not only entail an elaborate examination of the questions pertaining to each Discipline hut also a review of the opinion of experts in light of the standard text books and treatises. To do so would be necessary at the time of granting final relief but is not called for while considering the question of granting pro visional ad mission for the reasons stated in the proceeding paragraph. Assuming without granting that while considering the question of grant of provisional admission an exercise of that nature can be undertaken in a rare and exceptional case where the expert's opinion is shown to be so patently defective as to require no elaborate process or ratiocination. mere ipse dixit would not suffice to overrule or differ from his view. Assuming without granting that while considering the question of grant of provisional admission an exercise of that nature can be undertaken in a rare and exceptional case where the expert's opinion is shown to be so patently defective as to require no elaborate process or ratiocination. mere ipse dixit would not suffice to overrule or differ from his view. Reasons, howsoever brief, must find place in the Court's order in such a case. To the order under appeal. no reasons at all are given. We have compared the qualifying marks of the last admitted candidate in each of the concerned Courses and the improved marks of the eighteen respondents who have been provisionally admitted and find that their cases do not really fall within the ambit of "border line cases", Since a minimal difference in marks-a fraction of one mark also-makes all the difference, when the gap between the qualifying marks and the improved marks is much more the test of "border line cases", even if relevant, cannot be regarded as having been satisfied. The grant of provisional admission to the three concerned respondents in the Opthalmology Course is wholly inexplicable. It is a case of total deviation from the report of the expert in the said Discipline, who had opined that none of the questions was ambiguous and that the key answers were the only correct answers. Without any reasons whatever having been set out in the order, such relief could not have been granted. The difference between the original marks of those three respondents and the qualifying marks of the last admitted candidate in the Course is not such as to make them "border line cases", especially when none having less than the qualifying marks has secured admission. 36. To the last place, a large number of additional seats were required to be temporarily created for granting provisional admission to as many as twenty six candidates in different Courses including twenth in the four Courses herein involved. Some more writ petitions in which the question of provisional admission is involved are also stated to be still pending. Under such circumstances and in view of the extracted observations in Ganguly's case' (supra). before passing the order granting provisioned admission, notice ought to have been issued to the Medical Council of India and to the other concerned authorities. Their presence was essential to ascertain, inter alia. Under such circumstances and in view of the extracted observations in Ganguly's case' (supra). before passing the order granting provisioned admission, notice ought to have been issued to the Medical Council of India and to the other concerned authorities. Their presence was essential to ascertain, inter alia. whether even temporary creation of such large number of additional seats was possible having regard to the available faculty strength and infrastructural facilities. Leaving aside the question whether the concurrence of the Medical Council of India was necessary in such situation, its presence before the Court was indubitably essential. An advance copy of the writ petition(s) is stated to have been served upon the said authority but it is not clear whether that was done in all cases. Besides, that by itself was not sufficient notice that the Court was actually considering the question of grant of provisional admission to a substantial number of unsuccessful candidates in different Disciplines. From the affidavit-in-opposition to the application for interim relief filed on behalf of the said authority in the present proceedings, it is apparent that it is opposed to the creation of even temporary additional seats. The Trial Court did not have the benefit of this view point before the order under appeal was passed although it was a material factor to be kept in view before exercising the discretion. 37. The question then is as to what final order should be passed in this group of appeals. An attempt was made on behalf of the concerned respondents to invite us to consider the question of grant of provisional admission on merits in each case in light of the materials on record and the well-settled principles, especially because, in their submission, the reports of experts were patently defective. An attempt was made on behalf of the concerned respondents to invite us to consider the question of grant of provisional admission on merits in each case in light of the materials on record and the well-settled principles, especially because, in their submission, the reports of experts were patently defective. However, we were not inclined to undertake such an exercise since the matter has come up at an interlocutory stage and the Trial Court, which is still seized of the writ petitions out of which these appeals arise and many more, will have to undertake a thorough examination of the objective type questions as well as of the key answers in light of the reports of experts and standard text books and recognised treatises to which its attention may be drawn, for the purposes of finally deciding whether anyone or more of the objective type questions and key answers in the various tests held for different Disciplines suffer from such defects or errors which would entitle the writ petitioners to a relief keeping in view the decisions aforementioned of the Apex Court, Any exercise of that nature to be undertaken by us at this stage may prejudicially affect the parties since some observations/findings will have to be recorded by us upon a prima facie view in regard to those matters. That apart, as earlier pointed out, on the facts and in the circumstances of the case, and against the background of what transpired during the course of the hearing before the Trial Court, the proper Course is that the issue of provisional admission be decided on the basis of the experts' reports only. Six of the writ petitioners have already been granted provisional admission and two more will get such benefit by virtue of the dismissal of the appeals concerning them by this judgment. Creation of eight additional seats on a temporary basis till the final decision is recorded in the pending writ petitions should not, in all probability and having regard to the past experience, present any serious problem. However the extension of such benefit to other candidates upon a review of the entire materials on record would also entail the c0nsideration of the further question of the availability of the requisite faculty strength and infrastructural facilities with respect to which no material or adequate and reliable material is available on record. However the extension of such benefit to other candidates upon a review of the entire materials on record would also entail the c0nsideration of the further question of the availability of the requisite faculty strength and infrastructural facilities with respect to which no material or adequate and reliable material is available on record. This is yet another factor which deters us from considering the request made on behalf of concerned respondents. 38. Having regard to all the material circumstances, considerations and factors and against the background of the facts and circumstances of these cases and keeping in view the well-settled legal position, we are of the opinion that all the appeals other than F.M.A.T. No. 747 of 1990 and EM.A.T. No. 752 of 1990 deserve to be accepted. We are further of the opinion that the ends of justice require an expeditious hearing of the pending writ petitions before the Trial Court. While allowing the appeals and setting aside the order under appeal in cases other than F.M.A.T. No. 747 of 1990 and F.M.A.T. No. 752 of 1990. therefore, we grant liberty to the parties to move the Trial Court for filling a very early date of final hearing of the pending writ petitions. If and when the Trial Court is moved accordingly, it will make every possible endeavour to fix those cases fur final hearing within the shortest possible time and as far as practicable commence such hearing not later than a week from date, and filially dispose of the matters with the utmost expediency thereafter. The Trial Court may also consider continuing the hearing from day-to-day to secure quick disposal. 39. In the result. F.M.A.T. No. 747 of 1990 and F.M A.T. No. 752 of 1990 are dismissed. Interim relief vacated. All other appeals are allowed and the order under appeal in so far as it relates to the concerned respondents (writ petitioners) in those appeals is set aside. There will be no order as to the costs of the appeals. Shyamal Kumar Sen, J : I agree. April 26. 1990 (Later) Upon the oral request of the learned Advocates for the parties made after the judgment was pronounced a copy of the operative part of the judgment is directed to be furnished to therein course of the day. The learned Advocates will also have the liberty to peruse tile judgment. Shyamal Kumar Sen, J : I agree. April 26. 1990 (Later) Upon the oral request of the learned Advocates for the parties made after the judgment was pronounced a copy of the operative part of the judgment is directed to be furnished to therein course of the day. The learned Advocates will also have the liberty to peruse tile judgment. All appeals other than F.M.A.T No. 747 and No. 752 of 1990 allowed Interim order granting provisional admission set aside.