JUDGMENT The judgment of the Court was as follows :–– Bhattacharjee, J. : I have had the advantage of going through the draft of the very well-written, well-considered and comprehensive Judgment of Ray, J. and I agree with the order proposed by him in his judgment appearing hereinafter and particularly in the concluding paragraph. 2. The weight, the elaborate reasoning, the eloquence and also the length of his judgment ought to have hushed me into silence. But notwithstanding my concurrence in the order proposed by him, I propose to come out with a separate not spelling out the process of my own reasoning as on some aspect of the case, I do not, as at present advised, intend to go so far as Ray, J. proposes to go. 3. The writ-petitioners challenge the correctness of the test-examination for admission to the post-graduate medical courses. The pattern of examination is what is called ‘Multiple-Choice Objective-Type Test’. One paper is set for each discipline containing 95 questions; four alternative answers are given to each question and the candidate is to choose by putting a tick-mark to the mot appropriate answer. One mark to be allotted for the correct choice, half-mark to be deducted for an incorrect choice. The Paper-setter supplies to the University the correct answers to each question, called the ‘Key Answer’. The petitioners contended that they were wrongly failed on the basis of such key answers as many of those answers were wrong while their answers were correct. The earned trial Judge accepted their contention and held many of the Key answers to be wrong and the candidates’ answers to be right after delving into a large number of opinions of the experts and a larger number of text-books. The petitioners, as Respondents before us, have also invited us to approve the course. I regret that I cannot, does brother Ray. 4. The hearing of these cases took about 23 days before us and, we are told, more time before the trial Court. If the arguments related to questions of law only, however complicated, that would have been a different matter and it would have been our plainest duty to resolve the disputes. I regret that I cannot, does brother Ray. 4. The hearing of these cases took about 23 days before us and, we are told, more time before the trial Court. If the arguments related to questions of law only, however complicated, that would have been a different matter and it would have been our plainest duty to resolve the disputes. But arguments solely related to questions of facts and facts only, namely, whether the key answers were demonstrably wrong and the length of the arguments and the mass of materials in the shape of large number of expert opinions and specialised treatises and the Judgment of Ray, J., have amply demonstrated how enormously complicated the questions are. 5. These questions can, if at all, properly be resolved in a duly constituted regular suit where experts can be examined and cross-examined with reference to their opinions and extracts in the relevant treatises. The Court must disown their competence to read and appreciate expert reports on subjects of specialty without the explanatory evidence of the expert. Can we, without the aid of a medical expert, read and fully comprehend even an ordinary ‘X’ Ray, or E. C. G. or even Pathological report ? Ordinarily the report of experts does not go in as evidence without the expert being examined, unless a statutory provision, e.g. Section 293, Code of Criminal Procedure, provides to that effect. The provisions of Section 60, Evidence Act would govern the matter providing that when evidence related to "an opinion or to the grounds on which that opinion is held, it must be the evidence of a witness who holds that opinion on those grounds". Text Books, which were cited before us, were also experts opinions which may go in under the first proviso to Section 60. We may realise them but may not always understand them without the assistance of experts and the learned Counsel who appeared before us were not medical experts. 6. A proceeding under Article 226 is not to be resorted to as a substitute for ordinary suits when investigation into disputed and complicated questions is necessary. It is not to be availed of when a remedy by way of suit is available and is adequately, if not more, efficacious. 6. A proceeding under Article 226 is not to be resorted to as a substitute for ordinary suits when investigation into disputed and complicated questions is necessary. It is not to be availed of when a remedy by way of suit is available and is adequately, if not more, efficacious. The decision of the five-Judge Bench of the Supreme Court in (1) Thansingh Nathmal ( AIR 1964 SC 1419 ) is a clear authority for this view where it was observed inter alia (as page 1423) as hereunder :–– "The very amplitude of the jurisdiction demands that it will be ordinarily exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribe by statute. Ordinarily the Court will not entertain a petition for writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides and equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed." 7. To the same effect is a much earlier five-Judge Bench decisions of the Supreme Court in (2) Union of India v. T. R. Verma ( AIR 1957 SC 882 ) where also it was observed (at 884) that where there is a serious dispute which cannot be satisfactorily decided without taking evidence, it is not the practice of Courts to decide questions of that character in a writ petition and it would have been a proper exercise of discretion, if the learned Judges had referred the respondent to a suit. 8. I entertain no doubt that in view of the enunciation of law by the five-Judge Bench in Thansingh Nathmal (supra), and by the earlier five-Judge Bench in T. R. Verma (supra), these matters ought not to have been entertained in Writ Jurisdiction. 8. I entertain no doubt that in view of the enunciation of law by the five-Judge Bench in Thansingh Nathmal (supra), and by the earlier five-Judge Bench in T. R. Verma (supra), these matters ought not to have been entertained in Writ Jurisdiction. But the decision of a three-Judge Bench of the Supreme Court in (3) Kanpur University v. Samir Gupta ( AIR 1983 SC 1230 ) has been used as a spring-board for many later decisions of our High Court where the correctness (and not merely the legality) of an academic examination being challenged even in a writ proceeding, the Court has gone into spirit action of a super-examiner and has determined, on the basis of specialised treatises on the subject and the opinions, very often conflicting of the experts, as to whether the examiner knew the subject, or at least the correct answer and correctly examined the answer script(s). This is not and cannot be the function of a Writ Court at least, though Ray, J., in the judgment following hereinafter has held such matters not to be cognizable by any Court, not by the ordinary suit Court, because, according to him, there is no private or common law right for admission to a University, and not by the Writ Court, because writs that call for determination of complicated facts are not entertainable. 9. I have examined the decision of the Supreme Court in Kanpur University (Supra, AIR 1983 SC 1230 ) with anxious advertence and care, but have not been able to discover any declaration of law to the effect that academic correctness of the examination of an answer script in specialised subjects, made by academic experts of a University, is always justiciable in a Writ Court and whenever such a challenge is thrown, the Writ Court must delve into the mass of experts opinions and relevant treatises on the subject and pronounce upon the academic soundness of the Key-answers put forward by the experts of the University. It must be noted, as noted by D. K. Sen, J., in (4) Somenath Bandopadhyaya v. University of Calcutta (90 CWN 743 at 771), that Kanpur University (supra) related to examination at almost elementary level of pre-Medical standard, and not to an examination of higher specialised level for admission to post-graduate Medical Course, as is the case before us. It must be noted, as noted by D. K. Sen, J., in (4) Somenath Bandopadhyaya v. University of Calcutta (90 CWN 743 at 771), that Kanpur University (supra) related to examination at almost elementary level of pre-Medical standard, and not to an examination of higher specialised level for admission to post-graduate Medical Course, as is the case before us. Three and only three questions were in issue in Kanpur University (supra), of which in respect of one, the Hindi translation of the question was demonstrably wrong and in respect of another, even the University’s own expert opined the Key-answer to be wrong. In respect of the remaining one also, the opinion of the University’s own expert being absolutely confusing, and the question being an elementary one not requiring any specialised knowledge, the Court referred to some recognised text books on the subject and held the answer to be wrong. The Supreme Court no doubt did so but declared its anxious awareness of the dangers inherent in such a course and directed that "no fresh petitions should be entertained............hereafter on the questions involved in these appeals rising out of the test which was held". The decision of a two-Judge Bench of the Supreme Court in (5) Abhijit Sen ( AIR 1984 SC 1402 ) was rendered in four appeals connected with the appeals in Kanpur University (supra) and arising from the same judgment of the Allahabad High Court and, therefore, the same course was adopted and the same action taken as in Kanpur University (supra). 10. The decisions in Kanpur University (supra) and in Abhijit Sen (Supra) are not easily reconcilable with the dictum in Thansingh Nathmal. The only way to reconcile them is to hold that where the errors is apparently manifest and would stare at the face without any elaborate argument as in Kanpur University (supra), a Writ Court may choose to intervene. But where, as here, so ably demonstrated by Ray, J., in his judgment, the errors cannot show their heads without elaborate, searching and detailed examination of a mass of conflicting expert opinions and a large number of specialised treatises, a Writ Court must stay its hands leaving the parties to seek remedy in ordinary trial. But where, as here, so ably demonstrated by Ray, J., in his judgment, the errors cannot show their heads without elaborate, searching and detailed examination of a mass of conflicting expert opinions and a large number of specialised treatises, a Writ Court must stay its hands leaving the parties to seek remedy in ordinary trial. It would be extremely unfair to brand the Key-answers prepared by an academic body like the University as wrong without giving the University an opportunity to test the soundness of the opinion of the other experts to the contrary, by cross-examination or otherwise. 11. The Division Bench decisions of our Court in Somenath Bandopadhyaya (supra) and in (6) Amalendu Santra (AIR 1986 Calcutta 153) cannot bind us in view of the dictum of the Supreme Court in Thansingh Nathmal (supra) and in T. R. Verma (supra). The Division Bench decisions have treated the Supreme Court decisions in Kanpur University (Supra) and in Abhijit Sen (supra) as a blanket authority for the proposition that the correctness of the Key-answers is always justiciable even in writ jurisdiction. They are no such authority. We are not to treat the course adopted by the Supreme Court in a given case as a binding precedent. What can bind us is only the declaration of law. And the only declaration that can be said to have been made in those Supreme Court decisions is that if the answer "be clearly demonstrated to be wrong, that is to say, it must be such s no reasonable body of men well-versed in the particular subject would regard as correct", the Court may intervene. I have my doubts as to when a highly specialized academic body like the University prepares the Key answers and argues in support of its correctness, whether it can still be said that "no reasonable body of men………………. would regard them as correct”. Unless in a given case, the error irresistibly manifests without any detailed and sustained academic exercises, matters purely academic should ordinarily be left to the academic bodies and be non-entry area for Law Courts. 12. What is binding on us in Kanpur University (Supra) and Abhijit Sen (Supra) is only the enunciation of law that only when the Key-answer is such that "no reasonable body of men well-versed in the particular subject would regard as correct", the Court may intervene to give relief. 12. What is binding on us in Kanpur University (Supra) and Abhijit Sen (Supra) is only the enunciation of law that only when the Key-answer is such that "no reasonable body of men well-versed in the particular subject would regard as correct", the Court may intervene to give relief. And not what the Supreme Court actually did in disposing of the cases. And I am afraid, and this I say with obvious respect, that neither the Somenath Bandopadhyaya (supra), nor in Amalendu Santra (supra), the Division Bench has followed the declaration of law by the Supreme Court in Kanpur University and Abhijit Sen. The ratio was not followed, but what was sought to be followed was the course of action actually adopted de hors the declaration of law. According to the precise declaration of law the Supreme Court, the Division Bench could not do what it did in those two decisions. It is obvious that we must govern ourselves by the declaration of law by the Supreme Court and not by the actual course of action adopted by the Division Bench, or even the Supreme Court, unsupported by such declaration of law. 13. Any step taken or course adopted by a higher Court in disposing of a lis, if unaccompanied or unsupported by a declaration or enunciation of law, does not bind any one except the parties to the lis. Any inference, however logical, from the course or step so taken by the higher Court is not necessarily a declaration of law to operate as a precedent, that is what Lord Halsbury stated at the beginning of this century in (7) Quinn v. Leathem (1901 AC 495 at 506), cited with approval by the Supreme Court in (8) Sudhangshu Sekhar Misra (AIR 1968 SC at 651-652). In India at least, there is no scope for any doubt in the matter in view of the clear terms of Section 212 of the Constitution Act of 1935 and Article 141 of the present Constitution. What binds the parties is the decisio, but what can operate as a precedent is only the ratio if any. If no declaration of law is made, or even if made, not followed or applied, a decision, however eminent the Court or tribunal delivering it may be, fails to rank and govern as precedent. What binds the parties is the decisio, but what can operate as a precedent is only the ratio if any. If no declaration of law is made, or even if made, not followed or applied, a decision, however eminent the Court or tribunal delivering it may be, fails to rank and govern as precedent. I again record my concurrence in the Order proposed by Ray, J., in his Judgment appearing hereinafter. Ray, J. : Preliminaries These appeals relate to admission of some MBBS doctors to post-graduate medical courses. The concerned session is that of 1989-90. The learned Judge in the Court below has directed on 14.4.91 and 23.4.91 compulsory admission of thirty one MBBS doctors who had originally failed the entrance test. The University has been come up in appeal. In one case in the discipline of orthopaedics concerning Dr. Prabir Kumar Mukherjee, the student has come up in an appeal as the learned Judge did not order admission in his case. The Magnitude of the Problems 2. This is an annual feature, at lest in the Calcutta High Court we are hearing the appeal some two years after the examinations are over. The number of examinees every year for these post-doctoral courses (meaning loosely, here and hereafter, the course undertaken after one has become a qualified doctor) is about 5,000. Some 750 are admitted in the different post-doctoral disciplines. In the cases out of which the appeals arose there were originally some sixty two writ petitioners and thirty nine writ applications. The candidates want the court really to re-examine the entrance papers in the different technical disciplines and to come to the conclusion that their answer are rights and the model answers used by the University for giving marks are wrong. Each discipline contains and examination paper of 95 questions of the multiple choice single response type. That means four alternatives are given and the most appropriate alternative is to be chosen. There is one mark for the correct choice and a deduction of half a mark for a wrong choice. Zero for not answering. In each discipline some five or ten questions have been said to have caused unfairness to students by wrong selection of model answers. Some questions were said to have more than one correct answers. Some questions were said to have more than one correct answer. Zero for not answering. In each discipline some five or ten questions have been said to have caused unfairness to students by wrong selection of model answers. Some questions were said to have more than one correct answers. Some questions were said to have more than one correct answer. For each question several technical materials have been placed before us following the line of the Kanpur University Case ( AIR 1983 SC 1230 ). If every year unsuccessful candidates come up in this way before the Court and if the Court is asked to examine the accuracy of the model answers, it will mean that the Courts will assume a regular Supervisory jurisdiction over the University examinations. Other examinees than doctors will also come. We will have to examine whether this is permitted by the system of our present law. The course of the legal proceedings 3. (a) Sometime after the presentation of the writ applications, on the 6th of December, 1989, and order was passed with the recorded no objection on the part of the University, that in each discipline an expert would be nominated by the Vice-Chancellor of the University to examine each candidate writ petitioner’s answer script (as well as the accuracy of the model answers in the different papers) for thirty two candidates. The exercise was undertaken. After the exercise it was found that the experts appointed did actually find some questions and model answers to be unsatisfactory, in that the question itself was ambiguous or that the model answer was not correct according to the presently appointed expert. On the basis of this expert report it was found that seven candidates crossed that marks obtained by the last candidate (of the concerned discipline) who had secured admission in the entrance test. In two cases the marks equaled the last marks in other cases the marks fell short of the last marks even after the experts’ re-examination. 3. (b) Partly on the basis of this re-examination by the experts, and Partly on the Court’s own assessment, several provisional admissions (twenty five) were granted by an order dt. 16.3.90 in the court below. The University did not appeal from the order for provisional admission in case of six out of seven candidates whose added marks exceeded the last selected candidate’s qualifying marks. They were thus granted provisional admission straightway; as for Dr. 16.3.90 in the court below. The University did not appeal from the order for provisional admission in case of six out of seven candidates whose added marks exceeded the last selected candidate’s qualifying marks. They were thus granted provisional admission straightway; as for Dr. Kalyan Roy, one of the seven, he did not take the admission like others. His marks had crossed the last marks for only the one year diploma course in gynaecology and obstetrics (D.G.O.) and not the last marks for the M.D. course for the two year study for post-doctoral degree. It appears, however, that by the order dated 16.3.90 he was directed to be provisionally admitted to M. D. Course itself. The University never offered provisional admission to Dr. Kalyan Roy in the degree course. Nor did Dr. Kalyan Roy take admission to the diploma course. The University succeeded in the appeal in the case of Dr. Kalyan Roy, and it was only after the appeal succeeded that a letter dt. 3.5.90 was addressed on behalf of Dr. Kalyan Roy seeking for admission in the Dr. G. O. Course. That was too late the order for provisional admission had, by then, disappeared. Everything perhaps would have been better for Dr. Kalyan Roy if he had originally been granted provisional admission to the diploma course instead of to the degree course. 4. In these appeals relating to provisional admission, the University succeeded, excepting in two cases, where the last marks equaled the added marks of these two candidates. Thus, those two candidates also obtained provisional admission. In the other cases the appeals were allowed. 5. The University, however, has filed appeals in all cases from the two orders finally granting admission to the thirty one students amongst whom are also included the provisionally admitted students. The result is that the University wishes to have set aside orders for admission to students who have, on the basis of their provisional admission, nearly completed their courses. Such provisional admission was given subsequent to a consent order for the appointment of experts of the University’s own choice. It would be very unjust to these students if we plucked them out of their class at the near end of their courses. What was done in the Court below 6. Such provisional admission was given subsequent to a consent order for the appointment of experts of the University’s own choice. It would be very unjust to these students if we plucked them out of their class at the near end of their courses. What was done in the Court below 6. I set out below the portion of the judgment under appeal which is the most relevant for our purpose :–– “This Court, with great anxiety, has gone through each and every answer script of all the writ petitioners in depth. This Court has verified each and every question and answer in the light of report of the experts and also in the light of the Text Books referred by the writ petitioners and the Books of Authority referred by both sides. Undoubtedly, there re errors in some of the questions and the answers given by the petitioners which have not been found to be correct in view of the Model key answers. These are demonstrably wrong and the petitioners having answered correctly in respect of certain questions contrary to the key model answers should get additional marks and the interference of the writ court is all the more necessary. By referring to the answer scripts key model answers, experts’ reports and copies of the Text Books and the Books of Authority, this Court has found the increase of marks in respect of the following candidates, and the chart is being prepared with the addition of marks resulting the change of position by crossing the marks of the last qualified candidates and in view of the judgment of this Court they are entitled to be admitted against the discipline mentioned below. M. S. (General Surgery) Marks obtained by last selected candidates 76.5 (for General) 74.5 (for WBHS candidate) Name of Marks Marks increased Mark Total Candidate obtained by expert. added on review of the Answer Script 1. Subimol Ganguly 74 + 1 + 4 = 79 2. Dhruba Kr. Ghosh 73.4 + 1.5 + 4 ” 79 3. Saidul Islam 68.5 + 1.5 + 7 ” 77 4. Rafiqul Alam 70.5 + 0 + 7 ” 77.5 5. Tapas Kr. Kundu 71.5 + 1.5 + 5 ” 78 6. Rajkumar Chhajer 70.5 + 1.5 + 5 ” 77 7. Asim Kumar Dey 74.5 + 1.5 + 3 ” 79 8. Bijoy Kr. Saidul Islam 68.5 + 1.5 + 7 ” 77 4. Rafiqul Alam 70.5 + 0 + 7 ” 77.5 5. Tapas Kr. Kundu 71.5 + 1.5 + 5 ” 78 6. Rajkumar Chhajer 70.5 + 1.5 + 5 ” 77 7. Asim Kumar Dey 74.5 + 1.5 + 3 ” 79 8. Bijoy Kr. Ganguly 75 + 1.5 + 4 ” 80.5 M. D. (O & G) Marks obtained by last selected candidates 77.5 (for General) 77.5 (for WBHS candidate) 1. Rabindra Nath Josh 67 + 6.5 + 5 = 78.5 2. Partha Guha Roy 72 + 6.5 + 4 ” 82.5 3. Subhas Chandra Halder 69 + 5.5 + 4 ” 78.5 4. Debdtta Ghosh 66 + 7.5 + 5 ” 78.5 5. Ashoke Kumar Das 67 + 5.5 + 5 ” 77.5 6. Kalyan Roy 63.5 + 7.5 + 7 ” 78 7. Samiran Dey 68.5 + 6 + 4 ” 78.5 8. Pulak Kumr Saha 72.5 + 5 + 4 ” 81.5 9. Goutam Roy (I) 67 + 7.5 + 5 ” 79.5 10. Arunava Das 66.5 + 8 + 5 ” 79.5 11. Ananda Kr. Mondal 71 + 7 + 5 ” 83 12. Nirml Kanti Saha 65.5 + 6.5 + 6 ” 78 13. Gaargi Banerjee 66.5 + 7.5 + 5 ” 79 14. Nikhilendu Mahaptra 72 + 5.5 + 4 ” 81.5 M. S. (Ophthalmology) Marks obtained by last selected candidates 84.5 (for General) 81.5 (for WBHS candidate) 1. Chittaranjan Shal 79 + 0 + 6 = 85 2. Subrata Guha Thakurta 82 + 0 + 4 ” 86 3. Abhrajit Chatterjee 83 + 0 + 6 ” 89 4. Gautam Kanti Adak 81.5 + 0 + 6 ” 87.5 M. B. (Paediatrics) Marks obtained by last selected candidates 68 (for General) 63.5 (for WBHS) 1. Nikhileshwar Khawas 66 + 4.5 + 4 = 74.5 Dip. in Cardiology Marks obtained by last selected candidates 80 (for General) 1. Atindra Nath Bagchi 66 + 14.5 + 0 = 80.5 M. S. Orthopaedics Marks obtained by last selected candidates 61.5 (for General) 58.5 (for WBHS) 1. Satchidananda Chatterjee 56.5 + 0 + 5 = 61.5 2. Jayanta Bhattacharjee 59.5 + 0 + 4 = 63.5 7. in Cardiology Marks obtained by last selected candidates 80 (for General) 1. Atindra Nath Bagchi 66 + 14.5 + 0 = 80.5 M. S. Orthopaedics Marks obtained by last selected candidates 61.5 (for General) 58.5 (for WBHS) 1. Satchidananda Chatterjee 56.5 + 0 + 5 = 61.5 2. Jayanta Bhattacharjee 59.5 + 0 + 4 = 63.5 7. It will be seen from the above that in most of the cases the learned Judge directed admission of students whose marks failed to cross the last marks even after addition of marks by the University's Experts. This the learned Judge sought to justify by adding marks in the third column. There is no way to find out how or in what manner these particular marks were arrived at by the learned Judge and were put in for further benefit of the students. It has been recorded by the learned Judge that His lordship went through all the relevant materials for coming to this conclusion about adding the further marks in the third column. With the greatest of respect I am unable to agree that this type of addition of marks in examinations of this nature should ever, in any view of the law or authorities, be made without giving any reason whatsoever therefor. Nobody knows for which question how many marks were added. The Question of remand 8. We have not thought it fit to remand the matter to the Court below for a re-examination of the third column and for assessment of marks on specified reasoned grounds only. We have on the other hand taken upon ourselves the burden (once again) of examining each and every question which learned counsel sought to dispute before us. In the body of this judgment the course of such inquiry is indicated. We can only wish, again with respect to the learned Judge in the court below, that this time consuming and laborious task should have been manifestly shown as having been performed by the learned Judge in his lordship's judgment by giving adequate reasons for addition of further marks in the third column. Because of this additional exercise the appeal court had to be engaged for nearly fifteen additional hearing days. The law as to re-examination of results by the Court 9. It is a most important aspect which has duly troubled us. Because of this additional exercise the appeal court had to be engaged for nearly fifteen additional hearing days. The law as to re-examination of results by the Court 9. It is a most important aspect which has duly troubled us. We have been taken through cases like the case of Kanpur University ( AIR 1983 SC 1230 ) or the case of Amalendu Santra ( AIR 1986 Cal 153 ) where questions and answers have really been re-examined by Supreme Court or by another Division Bench of this Court. We have also been shown the passage in the judgment of Justice T. K. Basu reported in 90 CWN 743 at paragraph 49 at page 759 in Somenath Bandopadhyaya’s case, where His lordship as the third deciding learned Judge, (there having been an equal one-one division of the division bench) said that after the Kanpur University case, the questions and answers have become justifiable. Is it then the law in India that after any examination held by an Article 12 Authority any examinee can come before the Court and throw a challenge to the marks allotted to him by the examining body? If the law laid down in the case is this that in case of demonstrably wrong questions and answers such a right accrues to an examinee, then an examinee can call upon the Court to examine each and every question in any examination in his attempt to demonstrate that the model answers are demonstrably wrong and his answers are right. The Courts would in such a case be flooded with matters relating to examinations. If that is the true law then the Courts will of course be appropriately flooded. I venture to think, however, that is not the true law on the subject. 10. I am bound by any decision on law by the Supreme Court and also by any decision on law of a division bench of this Court and I am not free sitting in a division bench to disregard either. Further, I am only bound by a declaration of law on the subject and not by any course which a particular superior Court or a particular court of equivalent jurisdiction might have adopted in the interests of substantial justice in a particular case. Further, I am only bound by a declaration of law on the subject and not by any course which a particular superior Court or a particular court of equivalent jurisdiction might have adopted in the interests of substantial justice in a particular case. There is no discussion of law in the root case of Kanpur University, and no discussion in particular as to how the administrative law or the constitutional law of our country makes it permissible for a Court of law to enter into the question of re-examination of the results of an examination already held by an authority. 11. There is but one administrative law and there is but one constitutional law in our country. There cannot be one administrative law for Universities and another administrative law for promoting authorities or licencing authorities. There cannot be one constitutional law for Universities and another constitutional law for promoting authorities or licensing authorities. We all know that in writ matters the Courts of law do not sit in appeal over administrative or quasi-judicial decisions. The Courts intervene in cases of breach of natural justice, in cases of excess of jurisdiction, in cases of malafide, or extraneous considerations, in case actions taken without express reason in cases of arbitrariness and in cases of such constitutional unfairness as come within the ambit of Article 14 of the Constitution of India. The Courts never intervene in cases of bona fide error committed by an authority within its jurisdiction unless such error perpetrates some manifest inequality or arbitrariness offending Article 14 of the Constitution of India. Can it be imagined that the promotion of certain candidates will be challenged in a court of law and an attempt will be made to demonstrate with reference to service records and other relevant materials that the promoting authority committed an error in promoting a certain set of individuals, and that the authority should have promoted any other set of individuals? Can it be imagined that the financial status and other business details of perspectives licensees will be examined in a Court of law exercising the writ jurisdiction, for the purpose of determining the 'correct' persons to whom the licence should be issued as per the Court's own assessment? The answers to these aforesaid questions must be in the negative. 12. How can the University, therefore, be corrected by us? The answers to these aforesaid questions must be in the negative. 12. How can the University, therefore, be corrected by us? It has held an examination quite properly in accordance with the concerned rules and regulations. (I shall deal in paragraphs 46-48 below with the argument of Mr. Arun Prakash Chatterjee appearing for Dr. Mihir Kumar Sarkar that the examinations were not properly initiated as there was no apparent sanction of the syndicate of the University as required under the Calcutta University Act of 1979; the objection was never there in the writ itself and was aired for the first time before us after the hearing had gone on for over 20 days, and only in the second round of attach by Mr. Chatterjee, which we permitted, his first round of submissions having been over in the early days of the hearing). So the University conducted the examination properly. There was no case of bias or mala fides against or in favour of any student, excepting for a mild allegation with regard to one Atindra Nath Bagchi in the discipline of cardiology. Dr. Bagchi has secured admission after getting 14 additional marks through the expert and Mr. Nigam Kumar Chakravorty appearing for several other doctors said that Dr. Bagchi got in quickly after the assessment because of his well placed relations. This is only a whiff of an allegation considering the numerous other doctors involved. The examination was fair and even, in that each student of the same discipline answered the same question pages in 75 minutes under the same rules, terms and conditions. There was a small seat reserve for West Bengal Health Service candidates being candidates in Government service and the reservation of such seats was never challenged. Nobody ever said that the model answers were not appropriately fed into the computer or that the students' answer papers were not appropriately marked as against these model answers. Each and every bit of procedure was properly observed. 13. The questions themselves were never disputed to have been set by any but experts in the subject and the model answers were also never disputed to have been model answers chosen by any but experts. If the examinations are to be reviewed then the Courts must sit in appeal over the University experts. This is not permitted in an administrative or constitutional action against an Article 12 Authority. If the examinations are to be reviewed then the Courts must sit in appeal over the University experts. This is not permitted in an administrative or constitutional action against an Article 12 Authority. It must therefore be the law in India that examination results cannot be reviewed by a Court of law in its writ jurisdiction merely for examining and rectifying alleged errors in the questions model answers or even the grant of marks to candidate on the basis of these model answers. The University or other examining bodies are expected to have a system for an appropriate rectification of clerical or other inadvertent errors. The Court might, on an appropriate occasion, order such a system to be evolved if no such system exists, but the Court cannot itself enter into the question of errors and seek to rectify them in the writ jurisdiction. 14(a) The Kanpur University case is, as I have said, the root case and it is this case that was relied upon by the learned Judges of this Court both in the case of Amalendu Santra and in the case of Somenath Bandopadhyaya. It is therefore important further to dwell upon the case of Kanpur University. 14(b) I have perused the judgment more than once but I have not found therein any particular observation or dictum with regard to a legal proposition which is binding upon us in the matter of decision on these admission matters. There is nothing in the case which indicates that in matters of writs relating to Universities or other examining bodies the Court will have to assume in every case the role of an Appellate Court or the role of a reviewer on facts. 14(c) The Supreme Court in that case did enter into the matter of the accuracy of the answers that the Supreme Court had done so is no legal argument for saying that the Courts which are bound to follow the Supreme Court should also do so something done by the Supreme Court in the interest of justice of a particular case without laying down the formulation of law is in no way binding by way of precedent upon courts like us who have to follow the law laid down by the Supreme Court. Though the phrase "unfair to penalise" does occur in the Kanpur University case at paragraph seventeen (17) at page 1234, yet I am unable to read into that phrase a general formulation of a law, in the sense that the Supreme Court lays down by use of that single phrase the proposition, that the enforcement of the article 14 fairness, in relation to Universities and other examining bodies, takes the shape of the Court sitting as a reviewer over examinations and correcting errors in marking all the students' papers; it is not important if the errors are demonstrable or manifest or obvious or even if the errors are hidden, technical or abstruse. The jurisdiction to correct errors must either exist in law or not exist at all. If it does exist then obvious errors can be corrected equally at law as errors in deeply technical esoteric matters. If the jurisdiction to sit in appeal and correct errors does not exist then the error cannot be corrected as an error, be it ever so demonstrable, be it ever so obvious. 15. In Amalendu Santra’s cse the Kanpur University was referred to and relied upon in para 17 at page 157. Also in the case of Somenalh Bandopadhyay Justice T. K. Bsu said in para 49 at page 759 (referred to above) that the justifiability of model answers is a result of the Kanpur University case. With the greatest of respect to the learned judges deciding the above cases, I do not think that there was any proposition of law that was laid down in the Kanpur University case which could have been followed by their lordships on the basis of the binding nature of a superior precedent. What the Supreme Court did in the particular case of Kanpur University was a matter of complete irrelevance in finding out the ratio of that case. The ratio of a case does not depend upon the result reached by a particular court of law. It is the reasoning in arriving at the result which gives the ratio of the case, as indeed the meaning of the word 'ratio' itself implies. 16. Why did their lordships of the Supreme Court in the Kanpur University case examine the questions and the answers as to their accuracy ? It is the reasoning in arriving at the result which gives the ratio of the case, as indeed the meaning of the word 'ratio' itself implies. 16. Why did their lordships of the Supreme Court in the Kanpur University case examine the questions and the answers as to their accuracy ? Was it that their lordships thought such an examination to be a constitutional mandate to a court of law ? It is impossible from a reading of the Kanpur University case to spell that out and answer that question in the affirmative. Could it be that their lordships permitted admission to certain students as a matter of fairness and justice in the general sense of the terms ? It is quite possible. Since the review of examination papers is not expressed in the Kanpur University judgment to have been undertaken on the basis of any particular formation of any principle embodied either in the administrative law or in the constitutional law in India, it is impossible to say that their lordships permitted admission to students in the Kanpur University case on any principle other than that embodied in the general ideas of the propriety and merciful justice. 17. (a) A few other cases must be referred to before we pass on to the next topic. The first is the case of Abhijit Sen reported in AIR 1984 SC p. 1402. This case was also relied upon in Amalendu Santra’s case along with the case of Kanpur University. Abhijit Sen’s case is no more than an off-shoot or the Kanpur University case itself, which the first paragraph of the judgment makes amply clear. The case of Abhijit Sen concerned four failed students who were in the same group as the students of the Kanpur University case and the case of these four students was assigned to the bench deciding the case of Abhijit Sen. It was clarified that the decision of Abhijit Sen was being arrived that on the same basis as was laid down in the case of Kanpur University. It was stated that if no reasonable body of men well versed in the particular subject can record an answer to be correct then deducting the students’ marks on the basis of such an answer would be unfair. It was stated that if no reasonable body of men well versed in the particular subject can record an answer to be correct then deducting the students’ marks on the basis of such an answer would be unfair. We are a division bench inferior to the Supreme Court but we have nothing to do with what the Supreme Court declares as factually unfair in a particular case. We have, however, everything to do with the declaration of unfairness by the Supreme Court in a particular case when such declaration is by way of a declaration of an instance of a particular Constitutional principle. Not every unfairness is a breach of Article 14. The degree, the circumstances and the curial controllability of the unfairness, all these have to be assessed for pronouncing the unfairness to be unconstitutional. 17. (b) Short of the Supreme Court laying down that questions and answers in examinations can be and should be reviewed for ensuring constitutional fairness by a court of law, exercising the writ jurisdiction, and for ascertaining the correct marks that should be allowed to students, according to the finding of the court of law, I am not prepared to say that the law as to writs is completely different with regard to University examinations and that the courts will sit in appeal over facts and opinions relating to the numerous students who might come forward before the court with their grievances as to numerous questions and support the grievances with numerous authorities and expert opinions. 18. The case of (19) Pradeep Jain which was referred (and is reported in AIR 1984 SC 1420 ) does not deal with the point of review and appeal from assessment of University marks but is concerned with seat reservation. 19. (a) The case of (10) Sanjay Gulati reported in AIR 1983 SC 580 was declared by the same learned judges who decided hesitated to cancel admission at the final stage of hearing s the students had already pursued their studies for a substantial period. We have followed, with respect, the same approach in our case with regard to the provisionally admitted students. We have followed, with respect, the same approach in our case with regard to the provisionally admitted students. The merciful approach of the bench, and I say this with respect, is also seen in the observation at paragraph 11 where their lordships did not take the logically extreme step of cancelling admission even though their lordships were satisfied that seven wards of employees of the colleges were admitted contrary to the rules and regulations. Their lordships were considering a sensitive human issue and their lordships said so in the beginning of the fourth paragraph. 19. (b) In the case of Sanjay Gulati we find observation about increase of seats in case admissions are directed by court and we also find observations about the courts not necessarily leaving admission in tact if the same are granted contrary to rules and regulations (see paragraphs 5 and 6). We do not find however, any laying down of the law to this effect that court will also supervise as to the errors of admitting authorities even if such errors are committed bona fide in the matter of selection of appropriate model answers or in the matter of grant of marks to students on the basis of such selected model answers. The writ Jurisdiction 20. We have heard again and again that disputed questions of fact are not ordinarily gone into by the Court in its writ jurisdiction. It should be emphasized that the exercise of the writ jurisdiction has nothing to do with whether the jurisdiction is invoked by way of presentation of a petition (as is usual and in accordance with the rules framed by this court for applications under 226), or whether the writ jurisdiction is invoked in a suit by filing a plaint. The grant of a writ is under the constitutional permission as such constitutional permission is not dependent upon the procedural difference between an application and a suit. It is a matter of substance. Where the relief asked for is itself in the nature of a writ, of the types mentioned under Article 226, then and in that event the court is not ordinarily to enter into disputed facts. It will be the same whether the origin of the proceeding is in an application or is in a suit. The rules is that, for issuance of, say, a writ of certiorari, the court is not enter into facts ordinarily. It will be the same whether the origin of the proceeding is in an application or is in a suit. The rules is that, for issuance of, say, a writ of certiorari, the court is not enter into facts ordinarily. That rule will remain the same where certiorari is prayed for by way of an application or where it is claimed by way of a suit. It matters where writs are prayed for in the interest of keeping authorities within jurisdiction or for keeping authorities within the constitutional boundaries, the courts should not ordinarily be involved with facts. The cases of jurisdiction or the overstepping of the constitutional limits must ordinarily appear on the face. Sometimes in extreme cases the court might in the interest of justice go into facts. It is not possible to complete an exhaustive categorization of such exceptional cases. But the rule is clear that where facts have to be examined in detail, the courts shall not be approached for grant of a writ of the nature contemplated under article 226. 21. What is the reason for all this ? Why should the Court not enforce any justice in writ matters even when the same entails an examination of facts ? The answer of practical necessity. There are many instances where the court refuses to go into facts. The courts will not commence a second appeal on facts even though the facts might be very much in favour of the second appellant. The Courts will not set aside an award by entering into facts even though the facts might be very good for the party against whom the award has gone. In the original formulation of the administrative law it was said that the courts will set aside which has error apparent on the face of itself. It is the same as an award. The courts did not go into facts the courts did not grant an injunction which would entail a day to day supervision because the courts cannot go into facts regarding day to day violation which might be alleged in case such injunctions re granted. Where a discretionary judicial order is passed the courts do not ordinarily go into the facts in appeal unless a case can be made out that the discretion has been improperly exercised. Where a discretionary judicial order is passed the courts do not ordinarily go into the facts in appeal unless a case can be made out that the discretion has been improperly exercised. In the same manner in the matter of issuance of jurisdictional writs and enforcing the constitutional and the administrative guarantees, the Courts cannot go into detailed facts for these matters. Otherwise it would be the Courts that would have to run the country in each of its governmental and administrative wings. 22. If the courts will generally go into the facts, in writs, then the courts will examine each and every service incident of all the many service matters that are disposed of by the State and its departments. The Courts would then go into the facts of each and every University examination. The courts would go into the facts of each and every administrative decision of the State so as to examine about its accuracy and subtenability on the facts in issue. It is not possible or desirable for the Courts of law to do this. Indeed, going into facts in detail in exercise of the writ jurisdiction would mean the taking up of the executive job by the judiciary. Just as the judiciary shall not legislate, so also shall the judiciary not take up or try to replace or try to sit in appeal over the executive functions of the State and the Article 12 authorities and their various officers and departments. It is for this reason that I am of the firm opinion that the courts in writ matters are not to go into factual details about examination questions, examination answers and marking on examination papers. 23. There is another angle from which this most important point is to be looked at. The Courts in disposing of suits and original matters usually decide upon the conflicting rights of contesting parties. The parties may be private parties, and they might well be in these modern days, the State or other public authorities, because they engage in business and trade very widely now. In writ matters however, the Court is not so much concerned with balancing of conflicting rights as it is concerned with examining the propriety of function of a particular state body. In writ matters however, the Court is not so much concerned with balancing of conflicting rights as it is concerned with examining the propriety of function of a particular state body. Mostly in writ matters the Court is to see whether a particular body or authority has acted within jurisdiction and within the constitutional boundaries. It is rather an act of a jurisdictional supervision than an act of detailed fact finding. In an action for land trespass the court goes into the factual details, if necessary by appointing a commissioner. In matters of engineering contracts the court again goes into details regarding the techniques, opinions and methods of production it is not so in writ matters. The court will see whether the authority in question has acted within the mandates of the Indian administrative law and within the mandates of the Indian Constitutional Law. It is more as a by product, so to speak, that the writ petitioner, or the plaintiff before the court claiming the writ, is benefited by reason of exercise of such jurisdictional supervision by a court of law. Some person has been affected by an order without jurisdiction. That order is set aside and he benefits. But is not primarily his right that has been in issue before the court, it is the authority of the ordering body that has been questioned in the main. So also with a writ for mandamus. Some body has not done something. That body should have done so. The court mandates its doing. Many people are benefited. But the court has not done it primarily for their benefit. The court has done it for enforcing the duty of that body which it had to discharge in the proper exercise of its jurisdiction. Provisional Admission 24. In these matters of admission of students to different course a provisional admission works in practice as a final admission. Because of the unavoidable delays of the law the final disposal of a matter takes place at a point of time far distant from the time of the interlocutory grant of provisional admission. By that time the provisionally admitted student has, in most cases, completed a large part of his study programme. He is, perhaps, about to take the final examination. By that time the provisionally admitted student has, in most cases, completed a large part of his study programme. He is, perhaps, about to take the final examination. For the pursuit of his studies he has not been differentiated from the other in any manner because of the provisional nature of his admission. He has read like a normally admitted student. He expects to take his final examination like his other fellow students and obtain a fair assessment of his performance in that examination. In such a situation the court is extremely reluctant to cut off the almost completed course of the provisionally admitted students. 25. If we look at what has happened in our case we find that the order for provisional admission was passed on 16th March, 1990 and that in six cases appeals even were not preferred from such provisional orders of admission. There was a dismissal of appeal by the Appellate Court in case of two other candidates and that (see 1990 (1) CLJ 492 ) was on 26th April, 1990. It is not disputed that these eight (8) students have made substantial progress in their studies. It is not possible to discount all this and simply call of the provisional admission even if we feel that originally the provisional admission should have been successfully resisted by the University, as appears after the detailed final hearing. 26. In the case of (11) Lucknow University, reported in AIR 1984 SC 186 the Supreme Court, with respect, very wisely, laid down that a provisional admission is not to be granted excepting in cast Iron cases. The wisdom of this rule is manifest. A provisionally admitted student cannot in practice be later taken out. So the Court should not in the first place grant a provisional admission to a student who might be found to be underserving, even in some slight doubtful degree, later on. 27. I cannot resist the temptation of drawing a parallel in this regard with a case that was decided a long time ago and in a completely different context, regarding grant of an injunction against a proposed house building. The argument before the Court was that an undertaking would be given that in case the litigation was lost the house to be constructed would be pulled down. The argument before the Court was that an undertaking would be given that in case the litigation was lost the house to be constructed would be pulled down. Sir Asutosh said, placing reliance upon two English authorities, that even if such undertaking is given and the house is built the court cannot at the final hearing simply order demolition on the basis of that undertaking. The building of the house has to be taken into account as a fait, accompli in spite of the undertaking. The equities will change because of the factual completion of the house in spite of the undertaking. An interesting passage occurs in the judgment at pages 443 (Israil v. Shamser, ILR 41 Cal. 436). 28. Similarly, in our case, in spite of the order being provisional and in spite of the admission being provisional, in the sense that the admission was finally still to be pronounced upon, and was liable to be set aside, some equities (which word is used in India as a synonym of justice) have intervened and we cannot stop the students from finishing their course. Thus far regarding provisional admission. The Medical Council and the availability of seats : 29. As I have said earlier, the number of students completing for admission to the post graduate courses far exceeds. the number of available seats. The numbers are roughly respectively 5000 and 750. ft is not that the doctors who are refused admission in the merit test are bad students or are incapable of pursuing and completing the post doctoral courses. It is just that there are not enough seats for all who are willing and able to undertake the course. 30. The Indian Medical Council has framed regulations regarding maintenance of a specified teacher students ratio in post doctoral courses for the purpose of maintaining proper standards. Roughly speaking the ratio is 1:1. It has been the case of the University that for the purpose of maintaining the norms laid down by the Indian Medical Council, they are unable to admit more students than they have decided upon, for the different particular disciplines. If indiscriminate admission is granted by the University then the violation of the medical council norms might have the ultimate result of de-recognition of the University course itself. We were told that the diploma course in cardiology has in fact being de-recognised. If indiscriminate admission is granted by the University then the violation of the medical council norms might have the ultimate result of de-recognition of the University course itself. We were told that the diploma course in cardiology has in fact being de-recognised. We did not however enquire as to when exactly or how such de-recognition took place. 31. The medical council also appeared before us and supported the above stand. Several cases in this regard were cited by the parties appearing. Mr. Nigam Kumar Chakraborty appearing for several students, submitted that the Indian Medical Council does not actually prescribe the number of seats. It merely seats down the norms. As such the introduction of a few students in some of the disciplines will not necessarily result in breach of those norms either wholesale or piecemeal. Mr. Chakraborty however, asserted that according to the materials given by him, (see the supplementary affidavit of Jayanta Kumar Bhattacharyya affirmed in C. O. No. 15467 (W) of 1989 in May, 1990-paras 10 and 11) there was sufficient infrastructure for the purpose of taking in the extra students. Mr. Chakraborty also asserted that these material were not sufficiently disputed by the University and the University did not bring forth adequate materials to show that the number of admitted students in each discipline was strictly limited by reason of the Medical Council norms and could not be increased at all. Mr. Samaresh Banerjee appearing for the University said that these materials about the infrastructure were not originally there in the writ petition and that the University had found it difficult to deal with each and every supplementary affidavit in the several writ petitions. He said that these supplementary affidavits were filed without taking any leave from Court. Be that as it may, I find that these supplementary affidavits are on record and as such I do not feel free utterly to disregard the same. But in the view I take, i.e., of not the disturbing the eight provisionally admitted students only, the existence of unused infrastructure if any, loses much of its importance. 31. Mr. Be that as it may, I find that these supplementary affidavits are on record and as such I do not feel free utterly to disregard the same. But in the view I take, i.e., of not the disturbing the eight provisionally admitted students only, the existence of unused infrastructure if any, loses much of its importance. 31. Mr. Banerjee also submitted on the basis of a recent Supreme Court decision (12) (Vinay Shankar, AIR 1991 SC 710 ) that the direction for admission of further students in a medical course should not be considered as a mandatory direction upon the Indian Medical Council regarding any additional seats but that those would be taken directory only. He also relied upon the above case and the case of (13) Minoo Naazeer ( AIR 1989 SC 1513 ) for the proposition that the statutory duty of the Medical Council is not to be interfered with by courts by ordering creation of many new seats, and that the maintenance of teaching standards by the council should not be affected by any compulsory direction of the Court to admit additional students to overfill the courses. 33. So, it might be possible in a particular case, looking at the board aspects of justice and substantial fair play that one or two students be admitted by a compulsory order upon the admitting university. But that must be treated as an exception in the view of the law that I take, it is hoped, that not many such extra admissions would be granted in future, by courts of law, either provisionally or finally, upon a re-examination of the question papers or the model answers by assuming the rule of a reviewer of examinations. But, I cannot discount the possibility of some student being illegally or unconstitutionally excluded and such unconstitutional unfairness being brought to the notice of the Court. It may be that such exclusion has taken the shape of some manifest regulation breaking or mala fide action and in that case the University might be compelled to grant admission. It is my view that even in case of grant of such extra admission by the University, the same should not in any manner be considered as any general relaxation of the norms and prescription of the Indian Medical Council. It is my view that even in case of grant of such extra admission by the University, the same should not in any manner be considered as any general relaxation of the norms and prescription of the Indian Medical Council. Such a compulsory admission would have to be treated as outside the general rules and guideline and not in any manner to be treated as a precedent either for other Universities or even for the same University in other years. The justiciability of questions and model answers 34. This is the main legal issue of these appeals. I have ventured to hold that the Court will not enter into facts or conflicting expert opinions and evaluate the propriety of the question set or the accuracy of the model answers of the University experts I hold that doing 50 is, in effect, abandoning the judicial function and taking up the executive function of the article 12 authorities. 35. In the case of Somenath Bandopadhyay Justice D. K. Sen and Justice A. K. Sengupta had difference of opinion and the matter was referred to Justice T. K. Basu. Justice Sen said in his lordship's judgment that in extremely technical matters like post graduate doctoral courses, the Court cannot be expected to opine with authority (see 90 CWN at pages 769 to 771). In the judgment of Justice Basu his Lordship said that after the Kanpur University case the questions and answers have become justiciable by Court of law. I venture to hold that the particular reading of a Supreme Court case by a division bench or by the learned third judge upon a division of a division bench is not, as a matter of precedent, binding upon another division bench of this Court. The later decision bench is free to read the Supreme Court decision itself and come to its own finding as to what that case is an authority for. 36. On such a reading of the Kanpur University case I am of the firm opinion that that learned judges in that case were administering broad and substantial justice and permitting admission of students, who, according to the finding of the three eminent judges, deserved admission in the course in question. At the end of the judgment their lordships discouraged filing of any further petitions in the High Court. At the end of the judgment their lordships discouraged filing of any further petitions in the High Court. It clearly demonstrates that their lordships were not laying down any matter of general law to be followed for all but that their lordships were exercising their supreme jurisdiction to achieve a fair result wherever the same is eminently desirable. 37. I am also of the view that in the case of Amalendu Santra, the court entered into an evaluation of questions and answers and came to conclusions about the same in the same spirit as of the Kanpur University case, i.e., of finding a just solution in the case, at hand rather than as a matter of application of formulated principles of administrative or constitutional law. My approach in the present case 38. My decision is that the court cannot enter into questions and answers and act as a head-examiner of examinations. But I could not come to this decision until the case was over. We could not hear the case piecemeal. Day after day we heard questions and answers discussed with regard to different examinees of different disciplines. Mr. Nigam Kumar Chakraborty, in particular, performed the laborious task with patience and devotion. I think it would be inappropriate for me to pass ever that labour lightly. I am compelled therefore to go through at least some questions and answers. 39. I am aware that until now the courts have not in clear term laid down that questions and answers shall not be reviewed by court. On the other hand in cases more one high authorities have in fact entered into questions and answers and their appropriateness and granted admission to student writ petitioners I would not be unlikely for a prospective student to assume on the basis of these decisions that he could also obtain a review of his marks in case he filed a writ therefor. On that basis it could be, no doubt, a little hard on these students to refuse them relief in spite of their having pursued this litigation to great lengths. But I do not think I can help it. On that basis it could be, no doubt, a little hard on these students to refuse them relief in spite of their having pursued this litigation to great lengths. But I do not think I can help it. I take heart from Justice Krishnaiyer's dictum in (14) Roshna’s case ( AIR 1979 SC 765 ) quoted at paragraph 9 of Sanjay Gulati’s case (AIR 1983 SC at 582) to the effect that persistence in litigation is not necessarily to he rewarded by admission, but that academic excellence is rather the truer test therefor. 40. The reason why I still deliberately enter somewhat into this exercise of examining questions and answer is to make it plain as to how much labour is involved and what difficulties are bound to be faced by a court in undertaking an exercise of that nature. In case it is the correct legal opinion (though I definitely for my part do not think so), that the courts should enter into the arena of disputed questions and answers, the broad outlines indicated hereafter will demonstrate what type of judicial exercise would have to be repeatedly (annually) undertaken by the courts of law. Who appeared for which students 41. Mr. Nigam Kumar Chakraborty appeared for the following candidates : M. S. (Orthopaedics) 1. Jayanta Kumar Bhattacharyya 2. Satchidananda Chatterjee M. S. (General Surgery) 1. Dhruba Ghosh 2. Raj Kumar Chhajer 3. Bijoy Kumar Gulgulia 4. Subimal Gangopadhyay 5. Tapas Kumar Kundu 6. Md. Rafiqul Alam M. S. (Ophthalmology) 1. Gautam Kanti Adak 2. Chittaranjan Shaw M. D. (Obstetrics & Gynaecology) 1. Kalyan Kumar Roy 2. Samiran Dey 3. Gautam Roy 4. Nirmal Kanti Saha 42. Mr. Sukumar Guha appeared for two candidates, being Dr. Subhash Chandra Halder and Dr. Ashok Kumar Das, but he did not press the case of Dr. Halder as he had already secured admission in a later entrance test. 43. Mr. Jaharlal Roy appeared for Dr. Prabir Kumar Mukherjee in the stream of orthopaedics but he appeared for the appellant and not for the respondents as did Mr. Chakraborty and Mr. Guha Mr. Roy said that for some explicable reason his client was not directed to given admission even though Dr. 43. Mr. Jaharlal Roy appeared for Dr. Prabir Kumar Mukherjee in the stream of orthopaedics but he appeared for the appellant and not for the respondents as did Mr. Chakraborty and Mr. Guha Mr. Roy said that for some explicable reason his client was not directed to given admission even though Dr. Satchidananda Chatterjee in the same stream of orthopaedics was directed to be given admission by the learned judge in the court below and that this was particular inexplicable because their cases, their original marks, and disputed questions and answers given are all at par. There is much truth in this. 44. Mr. Arun Prakash Chatterjee appeared for Dr. Mihir Kumar Sarkar, whose case was heard in the court below outside the bunch, resulting in Dr. Sarkar not getting a provisional admission even though his marks crossed the last qualifying marks in M. D. Gynaecology (with the additions, of course. of the Vice-Chancellor's expert's marks, assessee under the court's interim consent order). The Objections of the University 45. These were the following, raised by Mr. Balai Roy, Mr. Prodosh Kumar Mullick and Mr. Samaresh Banerjee, who at different times, argued the University's case :- 45.(1) That the court should not in writ proceedings act as an expert, or evaluate differing expert opinion on highly technical practical matters. Passages from books here and there cannot clinch the issue and a confident answer can only be given by an expert who knows the whole subject and has read the whole book. 45.(2) The writs were speculative because the student did not approach the court immediately after the examinations but waited until results were published and until they found themselves to have been unsuccessful. The answer papers of 95 questions in each stream were to be completed in 75 minutes. The students have gone on trying to justify their answers for years, which was not the spirit of the examination. 45(3) Even in case some questions are found to be ambiguous or some model answers are found to be incorrect, marks cannot be granted to the petitioning student alone but marks in that respect might well have to be granted to the last qualifying candidate also. It might well be that in this exercise the last marks will also go up. It might well be that in this exercise the last marks will also go up. Accordingly, the crossing of the last marks on a question answer revaluation of the writ petitioners' papers alone should not be the criterion for admission. 45(4) The writ applications in M. D. course admission tests have become an annual event and the University seeks for guidelines as to what must be done to avoid litigation in each and every year. They having done their best by appointing experts in the different fields, they seek for protection against vexatious and numerous litigation. 45(5) (a) The University also objected that the students who came to Court changed their questions of dispute from time to time. The questions that were made the subject matter of dispute in the original writ petition did not remain unchanged at the final hearing. After the University experts had given their comments, the students even thereafter dissected other questions and the model answers in their attempt to find out further infelicities and inaccuracies. 45(5) (b) In answer to the above Mr. Chakraborty said that when the students first left the examination room after completing the papers, they neither had with them the question paper nor did they carry with them any copy of the answers which they had given. The original writ petitions accordingly were more or less produced from memory. The sample questions quoted in this judgment would show that if any challenge is thrown on the basis of memory alone then that, for anti average person can only be rough and incomplete. The nature of the questions, the alternatives and the total number of questions make it difficult for any student but the better ones (who will probably anyway qualify) to given an accurate reproduction after the examination when neither the papers nor the answer scripts are in front of him. 45(5) (c) Mr. Chakraborty's further contention was that if the fairness of the examination or the fairness of the model answers was in issue then the student would be entitled to challenge a wrong or unfair model answer at any stage of the proceedings in case the same appearance to be unfair to him, even after further production of papers and further discovery of materials during the course of the proceeding. The holding of the examinations 46. Mr. Arun Prakash Chatterjee appearing for Dr. The holding of the examinations 46. Mr. Arun Prakash Chatterjee appearing for Dr. Mihir Kumar Sarkar said that even according to the University expert Dr. Sarkar's marks exceeded the last qualifying marks. Mr. Chatterjee and in addition that there was a point about the examinations being themselves wholly irregular. He pointed out inter alia from Sections. 22 (xix) and 24 (xii) of the Calcutta University Act, 1979) that the framing of regulation as to examinations for admission was possible only through the sanction of the Syndicate. He referred to the circulated leaflet regarding the general information for 1989 published by the University for these examinations, (see pages 1 to 7 of the papers handed up by Mr. Guha to Court in the matter of Dr. Anindya Kr. Das & Ors., F.M.A.T. 1384 of 1991), and said that the decisions as to these examinations were not manifestly taken by the Syndicate. 47. Mr. Samaresh Banerjee for the University laid that this point was never urged in the court below and that a wholesale cancellation pf examinations at this distance of two years would mean that many third parties who are not present before the court would have their courses of studies disturbed seriously by reason of Cancellation of the examinations held nearly two years ago. I fully agree with Mr. Banerjee that this is a wholly impermissible procedure. We cannot affect the rights of third parties in their absence and we cannot permit a point to be raised at the late appellate stage to the prejudice of the appellant University all well as to the prejudice of these absent third parties. 48. Mr. Banerjee also faced the problem squarely and did produce before us documents which seemed to indicate that the Syndicate did have the occasion for fixing the holding of these examinations. These documents included the University notification No. CSR/14/87 dated 27.8.87 and excerpts from the minutes of the Syndicate's meeting held on 12.3.91. I am not minded to scrutinize the role of the Syndicate by starting another fresh line of inquiry at this belated stage Even Mr. Chatterjee's own attack went no further than saying that the Syndicate had not manifestly framed the regulations; Mr. Chatterjee had no materials to urge that the Syndicate manifestly had not framed the regulations. M. S. (Orthopaedics) 49. Chatterjee's own attack went no further than saying that the Syndicate had not manifestly framed the regulations; Mr. Chatterjee had no materials to urge that the Syndicate manifestly had not framed the regulations. M. S. (Orthopaedics) 49. Let us start with the entry test for M. S. Orthopaedics or, more accurately, M. S. (Orthopaedic Surgery). The questions were 95 as in other disciplines, five marks being reserved for rural service privately rendered by non-government sponsored doctors. The dissatisfied candidates are Jayanta Bhattacharjee (JB), Satchindananda Chatterjee (SC) and Prabir Kumar Mukherjee (PKM). Of these, JB and SC have secured orders for admission by the judgment of the Court below; they are thus respondents before us and Mr. Nigam Kumar Chakraborty has represented their case. PKM was not allowed admission in the Court below; his counsel Mr. Jaharlal Roy has said that his case is at part with that of SC so that there was no material distinction that could be made by the Court below as between them. It is quite true that the impugned judgment is totally silent as to why SC was admitted but PKM, though their cases are indeed very similar. 50. Amongst these three, JB, SC, and PKM, question numbers 2, 3, 5, 19, 27, 56, 65, 72 and 76 were disputed. These questions are set out below : Mark the most appropriate answer in the answer sheet 2. Maduramycosis is characterised by : (a) Sulphur granules, (b) Caseous material, (c) Sequestrum, (d) Black granules. 3. The portal of entry of polio virus is : (a) Nasopharynx, (b) Oropharynx, (c) Upper gastro intestinal tract (d) Unknown. 5. Syringomelia is characterised by involvement of : (a) Posterior columns of spinal cord, (b) Anterior Spinothalamic traet (c) Dssociated sensory loss (d) All of the above. 19. Dupuytren’s contracture is best treated by : (a) Total fasciectomy, (b) Partial fasciectomy, (c) Fsciotomy (d) All of these. 27. Fracture clavicle in the adult is treated with : (a) Cuff and Collar, (b) Abduction frame, (c) Figure-of-eight bandages, (d) Straping. 56. The best treatment for chronic osteomyelitis is : (a) Saucerisation, (b) Antibiotics, (c) Preention, (d) Bone grafting. 65. The nutrition of mature articular cartilage is by : (a) Diffusion through perichondrium, (b) Blood vessels, (c) Underlying bone and diffusion from Synovial fluid, (d) Synovium. 72. 56. The best treatment for chronic osteomyelitis is : (a) Saucerisation, (b) Antibiotics, (c) Preention, (d) Bone grafting. 65. The nutrition of mature articular cartilage is by : (a) Diffusion through perichondrium, (b) Blood vessels, (c) Underlying bone and diffusion from Synovial fluid, (d) Synovium. 72. Which of the following is used for his joint : (a) Trendelenburgh test, (b) Trendelenburgh sign, (c) Trendelenburgh operation, (d) None of the above. 76. The features of femur in children are treat by : (a) Closed reduction and splinting, (b) Open reduction, (c) External fixator, (d) Gallow traction. 51. These re the questions whose model answers we are to test on the basis of certain text books and certain opinions of experts. That is the direct consequence of holding the questions and answers in such tests, or any tests, to be justiciable. The difficulty of the job, or the deep technicality of the subject cannot matter, because the law cannot be one for easy subject tests and another for esoteric subject tests. Article 14 fairness cannot depend on whether low category students are being treated unfairly or whether high category students are being treated unfairly. If the low I have laid down is wrong, then every year many exercises will have to be performed like theones we are about to indicate. Plaintly speaking, it is quite absurd that the law courts must discharge this function. In our glib formulations of the ambit of Article 14, we have sometimes let our tongue run a little to wild. 52. I can dispose of question 76 because the University expert Professor B. K. Datta said that the University model answer was wrong. The University has agreed that if that view is accepted then the marks of JB, SC, and PKM will each go up by 1.5, 1 for a correct answer and 0.5 for compensating for the wrong deduction. Though Dr. Datta wrote his report about M. D. Orthopaedics, he could only have written about M. S. Orthopaedics. Such mistakes make our task tougher. 53. In question 2, Maduromycosis has been wrongly spelt (we were told by Mr. Chakraborty) as Maduromycosis. In this judgment of mine, I apologize for any spelling mistakes that might creep in. I cannot help it, because of my lack of knowledge. Such mistakes make our task tougher. 53. In question 2, Maduromycosis has been wrongly spelt (we were told by Mr. Chakraborty) as Maduromycosis. In this judgment of mine, I apologize for any spelling mistakes that might creep in. I cannot help it, because of my lack of knowledge. The model answer was (d) and both SC and PKM answered (a) JB did not attempt it as he was, he says, baffled by the ambiguity of the question and the answers, the following passages were placed from Andrews’ Diseases of the skin 7th edition : MYCETOM Synonyms, Madura foot, maduromycosis. Mycetoma is a clinical entity but not an etiologic one. It comprises actinomycetomas caused by Streptomyces, Nocardia, or Actinomyces species, and cumycetomas caused by true fungi : Madurella, Cephalosporium or Allescheria. Clinical Manifestations. Mycetoma generally begins as a sub-cutaneous swelling, usually occurring on the instep or the toe webs. The tumor is 8 to 10 m.m. painless, non-tender, firm, and of rubbery texture. The overlying skin may be normal or attached to the underlying tumor. The mature, fully developed lesion is a tumefaction accompanied by the formation of nodules, tubercles, and draining sinuses, usually on the foot or ankle. * * * * Diagnosis, Mycetoma may be diagonosed by keeping in mind a triad of sighs, namely : Tume action, sinuses, and granules. Pus gathered from a deep sinus will show the granules when examined with the microscopes. The slide containing the specimen should have a drop of 10 percent sodium hydroxide added and a coverslip placed on top : Grins may be light-coloured (white, pearly, creat sulfur), red or black or dark-colored light colored grains are cused by Actinomyces israelii, Nocardia Sp., Streptomyces somaliensis, Allescheria boydil, Cephalosporium Sp. and Neotestu dina rosatil. Red grains are produced only by Streptomyces pelletierii. Black or drk-grains are produced by Curvularic geniculate, Helminthosprium spoiciferum, Keptosphaeria senegalensis, Madurella griesea and mycetomi, Phialophora jeanselmii, and Pyrenochaeta romerai. 54. Should I conclude from the above passage that the answer to question 2 could be either (a) or (b) ? Should I hold that the expert who set the model answer, and the Vice-Chancellor’s appointed expert Professor B. K. Datta, were both wrong and the most appropriate answer could be either sulphur granules (as SC and PKM contend) or black granules (as the two above experts, at lest impliedly, say) ? Should I hold that the expert who set the model answer, and the Vice-Chancellor’s appointed expert Professor B. K. Datta, were both wrong and the most appropriate answer could be either sulphur granules (as SC and PKM contend) or black granules (as the two above experts, at lest impliedly, say) ? Should I try to improve my common sense and think that sulphur granules is a wrong answer because, according to the book, the granules are sometimes sulphur (Sulphur for the Western Atlantic) coloured and sometimes pearl coloured but are never sulphur granules any more than pearl granules? 55. I do not think that the above is the correct approach. One should not think oneself to have become wise by reading a few passages in a few books, especially when the subject concerned is basically an empirical science of highly sophisticated development. They only way a Court can form a reasonable opinion on the subject is by examination of several experts in open Court with the assistance of Counsel producing relevant recent authorities on the subject. I have explained why a writ cannot ordinarily be had where such a disputed opinion as to a scientific fact is in issue. I refuse therefore to be guided only by a mere passage in a book, or several mere passages in several mere books. 56. Since this is what I hold, there is no point in quoting in extenso any of the other passages relied upon in Orthopaedics and reproduced in the supplementary paper book filed in that regard relating to SC and JB, the cases being FMAT 1486 of 1991 and FMAT 1884 of ’91. PKM did not even file his paper book; his counsel was content to fire his gun by resting it on the shoulders of Mr. Nigam Kumar Chakraborty, in whose able hands the cases of SC and JB, along with the cases of many others, received the most careful and efficient nursing. If I cannot grant much relief to the clients of Mr. Chakraborty, believe me, I refuse with a heavy heart. 57. I indicate below the questions and page numbers in the supplementary paper book that Mr. Chakraborty took us through, and that we examined as carefully as we could, not knowing in what manner our ultimate decision would have to be moulded : q. 3 (Pp. Chakraborty, believe me, I refuse with a heavy heart. 57. I indicate below the questions and page numbers in the supplementary paper book that Mr. Chakraborty took us through, and that we examined as carefully as we could, not knowing in what manner our ultimate decision would have to be moulded : q. 3 (Pp. 45, 46, 47, 48––Mercer’s Orthopaedic Surgery, 8th edition, and John Crawford Adams’ Outline of Orthopaedics, 9th edition). 57. (a) Before proceeding further I should point out that Mercer and Adams formed the suggested books by the University, as will appear from page 47 of the main paper book of JB in FMAT 1484. Mr. Chakraborty rightly commented that ever the names of the books have not been correctly reproduced in the University suggestion. 57. (b) Even then, even relying on the passages of the suggested books, I cannot and should not hold experts to be wrong. Books are like a beautiful model cat made of the finest mahogany; but to kill a mouse, you need a live cat, however scraggy might it be. 57. (c) Their lordships of the Supreme Court in the Kanpur University case ( AIR 1983 SC 1230 at para 18 at p. 1234) as well as Justice Chittatosh Mookherjee (Subrta Mukhopadhyay’s case, 1986 (1) C. H. N. 169 t para 14 last part at page 176) expressed the desire for standard text books, wherefrom model answers could be checked without any possibility of difference of opinion. If such books can be made to exist for post-doctoral medical entrance tests, or any other tests––then very good indeed. Disputed questions of facts would disappear, conflicts of opinion would vanish––the writ jurisdiction would smile with open arms to receive examination disputes. But until then, and surely our case now is nowhere near where answers can be as well found out by tallying clerks as by judges or assisting experts, the writ shall not lie to turn a Court into a reviewing body. Justice Mookherjee had held to that effect in the first Court in Amalendu Santra’s case ( AIR 1984 Cal 330 ), but as we have seen, the appeal court reviewed the papers proceeding to do substantial justice on the lines of Kanpur University and Abhijit Sen (see paragraphs 9, 15 and 17 above). Also see paragraph 78 below (read along with 77) about the difficulty of having exact ‘book answers’. 57. Also see paragraph 78 below (read along with 77) about the difficulty of having exact ‘book answers’. 57. (d) I can only wonder with respect at the hardihood of the learned Judge in the Court below when his lordship added 5 marks to SC and 4 marks to JB (and several marks to many others) by only remarking that his lordship ‘has found the increase of marks in respect of the following candidates’. Why 5 ? How 5 ? How 4 ? I hope, with respect, I do not ask these questions unfairly or unjustly. 57. (e) Well, the rest of the questions impugned and the rest of the material pages were q. 5 (Pp. 49, 50, 51, 52, 54 and 55); q. 19 (Pp. 36, 37); q. 27 (Pp. 56, 57, 58, 61, 62 and 63; also 64) q. 56–– I have to pause here again. 57. (f) For this question 56, the material pages referred were Pp. 40, 41, 42, 43 and 44. This is the question that Mr. Chakraborty started his attack with. He said, how can model answer (c) be right ? How can prevention be the best treatment for chronic osteomyclitic ? Indeed, it does puzzle me a little how prevention cap ever be considered to be a treatment, the former being a general effect and the latter being a special method, be it prophylactic, or be it therapeutic. But I prefer to remain puzzled than pronounce upon an expert opinion. It may be that chronic osteomyclitic is so bad a malady that the three alternatives a, b and d are even more useless than the initial advice to prevent the occurrence. Indeed, some uselessness of antibiotics is mentioned at p. 43 for the chronic stage of the disease. 57. (g) The questions subsequent to q. 56 were q. 65 (Pp. 65, 66) and q. 72 (Pp. 30, 31, 32 and 33). Again, regarding q. 72, which is about testing hip joint stability it appears after regarding the materials that the hip joint is tested by asking one to stand on one leg after the other––the bad hip is demonstrated by a sagging of the opposite buttock. 65, 66) and q. 72 (Pp. 30, 31, 32 and 33). Again, regarding q. 72, which is about testing hip joint stability it appears after regarding the materials that the hip joint is tested by asking one to stand on one leg after the other––the bad hip is demonstrated by a sagging of the opposite buttock. It appears to the lay mind that the test of standing produces the sign of sagging and both (a) and (b) should have got full marks––or even an unanswered question, because one may be in doubt about a or b and leave the question out to save a half mark deduction. But I am not to tamper with expert opinion by reading a book only, or two; I believe in the old aged that a little learning is a dangerous thing. This is why I say that these questions and answers are not justiciable. They cannot be, because a remedy by way of a writ is the prayer before the Court. The Court does not ordinarily embark upon a lengthy evidentiary inquiry for the purpose of issuing writs. If it were to do so, it would be attempting to do more than it possibly can, and thus defeat its own purpose and the reason for existence of the writ Court. 58. Thus, even allowing an extra 1 or even 1.5 for q. 76 in orthopaedics, as the case may be neither JB nor SC nor PKM crosses the last mark 61.5 s they had respectively scored only 59.5, 56.5 and 56.5. One need not feel to sorry for the close miss, because there are many such close misses in these tests, and there re many who do not come to Court for trying to produce a sympathetic judicial tear or two in their aid. M. S. (General Surgery) 59. Next we come to M. S. (General Surgery). For this discipline and for the discipline of Ophthalmology, we were addressed only by Mr. Chakraborty on behalf of his several clients. I have already indicated that another student than the clients of Mr. Chakraborty was involved in Orthopaedics, and as I have already said, in the stream of Gynaecology and Obstetrics, along with the clients of Mr. Chakraborty there were two others, whose cases were pressed one represented by Mr. Sukumar Guha (being Dr. Ashok Kumar Das) and another represented by Mr. Chakraborty was involved in Orthopaedics, and as I have already said, in the stream of Gynaecology and Obstetrics, along with the clients of Mr. Chakraborty there were two others, whose cases were pressed one represented by Mr. Sukumar Guha (being Dr. Ashok Kumar Das) and another represented by Mr. Aurn Prakash Chatterjee (being Dr. Mihir Kumar Sarkar). 60. The questions disputed in General Surgery paper were q. 4, 31, 36, 51, 62, 63, 66, 75, 79, 83, 89. The questions were as follows : 4. The Optimum treatment of carcinoma of breast stage T2 M1 M0 in a premenopausal patient is : (1) Modified radical mastectomy, (2) Modified radical mastectomy plus adjuvant chemotherapy, (3) Radiotherapy only, (4) Radical mastectomy plus radiotherapy. 31. In acute intestinal obstruction of the following signs are present except : (1) Absolute constipation, (2) Absence of bowel sounds, (3) Visible Paristalsis, (4) Abdominal distension. 36. Retroperitoneal lymph node dissection is particularly indicated in : (1) Seminoma of testis, (2) Non-seminomatous malignant tumour of testis, (3) Carcinoma of prostate, (4) Lymphoma of testis. 51. A third degrae (Sic) burn is characterised by : (1) Full thickness burn of skin, (2) Full thickness burn of skin and subcutaneous tissue, (3) Muscles are also burnt, (4) Burn involves nerves vessels and bone. 62. Which one of following investigation is least reliable for the diagnosis of gall stones : (1) Plain X-ray of abdomen, (2) Ultrasonography, (3) Oral cholecystography, (4) Intravenous cholangiography. 63. The optimum time for repair of a nerve injury caused by a stabs injury is : (1) Immediate repair, (2) Repair at 3-6 weeks, (3) Repair at 6 months, (4) Repair at 2 years. 66. Which of following intractanial tumours most common (Sic) : (1) Meningioma, (2) Pituitary adenoma, (3) Glioma, (4) Craniopharygioma. 75. Which one of the following abdominal lumps most common in infants : (1) Wilm’s tumour, (2) Hydronephrosis, (3) Polycystic kidney, (4) Neuroblastoma. 79. Which one of the following is the single most effective drug in the treatment of breast cancer : (1) Methotrexate, (2) 5-Fixoracil, (3) Cyclophosphamide, (4) Adriamycin. 83. The operation for congenital vaginal atresia is best done at the age of : (1) At birth, (2) Between 4-6 years, (3) After 12 years, (4) Just before marriage. 89. 79. Which one of the following is the single most effective drug in the treatment of breast cancer : (1) Methotrexate, (2) 5-Fixoracil, (3) Cyclophosphamide, (4) Adriamycin. 83. The operation for congenital vaginal atresia is best done at the age of : (1) At birth, (2) Between 4-6 years, (3) After 12 years, (4) Just before marriage. 89. Which of the following signs are associated with a poor prognosis is Hodgkins disease : (1) Loss of weight, neigh seats and fever, (2) Pruritus, loss of appetite and vomiting, (3) Lymph nodes large in size, (4) Abdominal lymph node involvement. 61. Such were the questions of which we were supposed to judge the most appropriate answer; the argument went that the Courts have held such (and, indeed, all other types of) questions to be justiciable. With due respect to all concerned, we were shocked to find that we would have to go through the questions and the materials, as, in some instances high authorities have examined the appropriateness of answers in the interest of broad justice. We could not find any straight cut authority which had earlier settled the point of justiciability of questions and answers in a clear, authoritative and democrative way, as I am venturing (I hope rightly) now to do. So these questions were to be tested for the answers of no fewer than four General Surgery candidates (Dhruba Ghosh, (DG), Raj Kumar Chhajer (RKC), Subimal Gangopadhyay (SG) nd Tpas Kumar Kundu (TKK) not all of whom had answered and disputed questions in the same manner, and not all of whom were interested in the identical questions with the identical materials. It was like going over the questions four times, with of course, large overlaps. If the questions and answers are justiciable in law, and I am wrong, many future Courts will go over many such questions and answers and materials many times over, with or without any fortunate large overlaps. 62. There were two other General Surgery clients of Mr. Chakraborty, whose erudition, pleasantness and patience, and devoted application to work were welcome companions to us in our unenviable task, without which, we have grave doubts if we would have ever completed the journey through facts, which was so necessary to make, if only to hold and show, that, such journeys re not to be undertaken in future. Chakraborty, whose erudition, pleasantness and patience, and devoted application to work were welcome companions to us in our unenviable task, without which, we have grave doubts if we would have ever completed the journey through facts, which was so necessary to make, if only to hold and show, that, such journeys re not to be undertaken in future. The two other students, to come back to the point, were Dr. Bijoy Kumar Gulgulia (BKG) and Dr. Md. Rafiqul Alam (MRA). 63. So far as BKG is concerned, he secured the same marks s the lowest candidates after his marks were improved by the Vice-Chancellor expert. The University did not give BKG provisional admission upon the interlocutory order of the first court dated 16.3.90, as his marks had only equalled the last marks, but had not exceeded it s in the case of say Dr. Ananda Mondal on Dr. Nikhilendu Khawas, in which two latter cases, amongst six others, no appeals were preferred by the University from the interlocutory order of provisional admission. The appeal from the order for provisional admission preferred by the University failed in the case of BKG and one Dr. Nikhilendu Mahapatra of the stream of Gynaecology and obstetrics. Thus, BKG was admitted and has participated in the course continuously since the dismissal of the appeal on 26th April, 1990; the judgment is reported at (15) 1990 (1) CLJ 492 . We have already said why cannot pluck out the student from his courses at so nearly ripe a stage. 64. Regarding MRA, Mr. Chakraborty said that to the best of his information, this candidates had secured a subsequent admission thus, though he was not formally giving up the case, yet his arguments and presentation of case in regard to MRA were advisedly left at a very sketchy stage. 65. (a) One word must be said about the provisional admission granted to the two students in the order of the Appellate Court reported in the above decision (see para 63 above). The two students were admitted provisionally because their marks had equaled the last candidate’s marks. Their lordships of the division bench quoted the test laid down in the Supreme Court case of the University of Lucknow (at para 8) that provisional admission was to be ordered only where there was a cast iron case. The two students were admitted provisionally because their marks had equaled the last candidate’s marks. Their lordships of the division bench quoted the test laid down in the Supreme Court case of the University of Lucknow (at para 8) that provisional admission was to be ordered only where there was a cast iron case. The University has contended before us that if the Amellorating exercise of re-examination through the Vice-Chancellor’s nominated experts was undertaken in case of all the appearing candidates, it might well have been that the last marks would also have gone up substantially in each discipline. As such the equaling of marks by the two writ petitioners was not conclusive for the finding that their entry to the post-doctoral courses had been unfairly refused to them. 65. (b) The appeal course refused to interfere with the exercise of discretion of the court below which had granted provisional admission in the case of these two ‘equal’ marks obtaining candidates. (see the last sentence of para 30 of 1990 (1) CLJ at p. 507). With the greatest of respect, I would have thought that just because of these two students obtaining equal marks, after increase of their marks, it could not be said that they had a cast iron case for success at the final hearing of the writ. In the absence of the majority examinees and in the absence of the examinees obtaining the last qualifying marks and in the absence of drawing up of a complete fresh and distinct merit list on the basis of any expert report as per court’s order, it could not be said that any student had a cast iron case for admission, in spite of his failure at the examination itself. 65. (c) The Courts are not set up somehow to pass failed candidates however tough the examination and however narrow the margin of failure might be. I have hesitated to interfere with the candidates who accrued provisional admission not because I find at the final hearing that the cases of the candidates were cast iron on merits, but because I am extremely hesitant and reluctant to remove these students from nearly completed course, thus ruining about two years of their lives. 65. I have hesitated to interfere with the candidates who accrued provisional admission not because I find at the final hearing that the cases of the candidates were cast iron on merits, but because I am extremely hesitant and reluctant to remove these students from nearly completed course, thus ruining about two years of their lives. 65. (d) Thought an interlocutory order is never a res judicta at the final hearing, I feel hesitant on the basis of analogous principles to upset a provisional admission granted at the interlocutory stage on a finding of a cast iron case, since such a finding has been acted upon by both sides for two years or so. If the provisionally admitted student is now thrown out can he not ask how his case was cast iron two years ago and is no longer so ? Can he not claim protection under actus curiae neminem gravabit for preservation of his two years of study ? I think he can. 66. Now we go back to the questions. In attacking the model answers and in supporting the answers given by his clients to these questions. Mr. Chakravorty relied upon the supplementary paper book containing the documents in respect of General Surgery as well as to several supplementary affidavits. The first supplementary affidavit that he referred to was that the Dhruba Ghosh affirmed on 8th May, 1990. As I have said, the University objected to reliance being placed on these supplementary affidavits as no specific leave had been obtained for relying upon them. It was also the case of the University that in the several matters pending in respect of the several students supplementary affidavits were filed again and again from time to time and that the University found it difficult to keep up with the same and go on filing affidavits in answer to these supplementary affidavits. I think that there is much substance in this difficulty faced by the University. 67. It is because of such difficulties as these that writ applications re to be discouraged in the extreme where facts involved are disputed and are of a ramificatory nature. These facts the court should not go into in any matters where the relief claimed is of the nature of a Royal prerogative writ. 67. It is because of such difficulties as these that writ applications re to be discouraged in the extreme where facts involved are disputed and are of a ramificatory nature. These facts the court should not go into in any matters where the relief claimed is of the nature of a Royal prerogative writ. Nor can facts of this nature be investigated in constitutional actions where the procedural limitations relating to prerogative writs apply equally well for the same practical reasons. I am of the opinion that the permission to file the several supplementary affidavits, regarding disputes as to questions, even if not expressly granted, was implicit, and the same, with respect, was a part of the error of entering into the facts and complicated conflicting expert opinions in the matter of a decision involving the grant of a writ or a remedy for enforcement of fairness in authorities s a fundamental right. 68. The first question that Mr. Chakraborty attacked in the general surgery stream was question 66 and he referred to the passage in Bailey and Love’s Short Practice of Surgery (see out in Dhruba Ghosh’s supplementary affidavits from page 15/16 thereof). On the basis of the said passage and the other passage from the principles of Surgery by Sehwariz mentioned in page 14 of Dhruba Ghosh’s supplementary affidavit, I am unable to conclude that the University model answers is not right and I am also unable lay down as a finding of fact that the most common intracranial tumour is not Meningioma but is Glioma. On the basis of books if I were to coke to the above conclusion I would be doing, in my opinion, something that is improper. 69. I say that the above in spite of the fact that the books that might have been relied upon by the various candidates in these different disciplines were specially suggested by the University. In this case for example, the book of Bailey and Love was a specially reserved text book recommended by the University. 69. I say that the above in spite of the fact that the books that might have been relied upon by the various candidates in these different disciplines were specially suggested by the University. In this case for example, the book of Bailey and Love was a specially reserved text book recommended by the University. We were also referred to passages, in the nature of, with respect, judicial suggestions (see 57(c) above) wherefrom it was pointed out that, if specially recommended text books are there, then questions and answers can be verified as against them, and the court could have an easier task in saying if the model answer is wrong or if the model answer is in fact right. This question No. 66 illustrates the point well. Let us assume that Dhruba Ghosh’s answer is borne out by a superficial rending of the above passage in preference to the key-answer of the University. Balance against the same the original expert choice which formed the model answer of the University paper as well as the return opinion of the University expert appointed under order of Court; the Letter is dated 10th January, 1990 and is by Dr. Pradip Majumder annexed at page 22 of the said supplementary paper book relating to General Surgery. According to Dr. Majumdar question No. 2 was defective, but that the remaining questions were not ambiguous, and that the model answers of all those other questions were not ambiguous, and that the model answers of all those other questions were the only correct answers. Am I to read the text books and go against these expert opinions ? I am afraid I cannot be a party to that. I would thus again, with due respect to all concerned, and feeling that there is no other course, be compelled to say that in these matters of evaluation of questions and answers the court is not to go into conflicting facts or conflicting opinions at all and is not to assume the authority of finally determining the accuracy of the answers, or the unambiguity of questions, irrespective of whether there are suggested standard books prescribed by the examining authority or not. Reviewing the University's question papers and answer papers through the machinery of a court of law is as impermissible as supervising the many executive actions of the Government for their accuracy and correctness through the appellate jurisdiction of a writ court, which jurisdiction, needless to say, does not exist. 70. I give below the questions and the pages in the supplementary affidavits that were relied upon by Mr. Chakraborty, who found it necessary to refer thereto for the purpose of evaluating the correctness of the model answers or the straightforward and unambiguous nature of the questions: Q. 89 (P. 8-10 of Raj Kumar Chhajer's first supplementary affidavit affirmed on 22nd December, 1989). Q. 63 (Dhrubo Ghosh's supplementary affidavit, pages 19-21 Bailey and Love, Schwartz). Q. 79 (p. 26-28, 18th edition of Bailey and Love). Q. 75 (p. 29-31, referring inter alia to Nelson's Text Book of Paediatrics, Campbell's Urology). Q. 4 (pages 48, 54 and 55, 59, 50). Q. 83 (pages 12 and 13 of Subimal Gangopadhyay's/Ganguly's suppl. affidavit affirmed on 22.12.1989). 71. Apart from the aforesaid affidavit of Dr. Chhajer affirmed on 22.12.1989 he had also affirmed a further or a second supplementary affidavit on 5.3.1990. Two expert opinions, from the student's side also were annexed to the first affidavit. Those opinions are both dated 5th December, 1989 and both relate to twenty questions which are somewhat confusingly numbered from 1 to 20 and do not bear the numbers of the questions as in the original paper. These opinions from the students's side come from Dr. Debabrata De and Dr. Mrs. Ratna Sen, whose designations and qualifications are mentioned in the third paragraph of Chhajer's first affidavit. Accordingly we now have a conflict of opinion amongst two experts on the University side, first, who originally put the answer as model and is unnamed (but was from Delhi according to what we gathered from the University), the second University expert being the one appointed by the Vice-Chancellor, and as against this, we have Doctors De and Sen. Is the writ court to balance these opinions and to enter into the different text books quoting excerpts and then give the finding as to which answer is right and which model answer is wrong? If that is the business of the writ Court then I frankly confess, whatever the authorities, I do not understand the business right. Is the writ court to balance these opinions and to enter into the different text books quoting excerpts and then give the finding as to which answer is right and which model answer is wrong? If that is the business of the writ Court then I frankly confess, whatever the authorities, I do not understand the business right. I can, with respect again, only wonder at the learned judge's statement in the court below where his lordship said, by referring to the answer scripts, the key-model answers, expert reports and copies of the text books and the books of authority that his Lordship had 'found' the increase of marks for the successful candidates writ petitioners. I have no hesitation in admiring his lordship's success at coming to numerous and definite conclusions in this regard, but, again with respect I feel compelled to hold that his lordship went wrong in at all undertaking that job, though painstaking and arduous it must have been, even what appears to me to be an impossible exercise excepting for a trained high expert abreast of all the current developments on the many subjects. 72. For the candidate Tapas Kumar Kundu (in general surgery) no separate paper book has been filed, we went on with the bearing of the appeals without finalized formal paper books, permitting parties to produce papers with copies to the other side, as we thought that expedition was more necessary them formality, as the possible future of the students was involved. They should know where they stand as quickly as possible even if they stand not so well as they would like to. An instance of the result of the informal procedure is that in the case of Dr. Kundu not even a paper book got filed. However, in arguing his ease, Mr. Chakraborty had referred us to the general supplementary paper book on general surgery as well as to the supplementary affidavit of Dr. Kundu affirmed on 10th January, 1990. In this supplementary affidavit there are again annexed two more opinions from two more doctors, they being prof. B. N. Ghosh and Prof. A. K. Banerjee, who have again given their opinions on 20 questions, again separately numbered from the answer papers. For example, q. 31 of the question paper has been numbered as question No. 6-in these opinions. In this supplementary affidavit there are again annexed two more opinions from two more doctors, they being prof. B. N. Ghosh and Prof. A. K. Banerjee, who have again given their opinions on 20 questions, again separately numbered from the answer papers. For example, q. 31 of the question paper has been numbered as question No. 6-in these opinions. The other point one cannot help noticing is that both the opinions are dated 6.1.90 and both are apparently copies of each other (see pages 4.5 of the suppl. affd. of TKK). Indeed, the two opinions of the two other doctors referred to in paragraphs 71, above are also, surprisingly, copies of each other (see p. 5, 6 of the suppl. affid. of Mr. Chhajer, affirmed on 22.12.1989). 73. The various questions would be found dealt with, and materials discussed in extenso in the annexures to the affidavit of TKK. We went through all that, we had to. For example, in relation to question 83 the materials placed before us were at pages 12 and 13 of the suppl. affidavit of TKK, the said question 83 having been numbered as question number 4 for the purpose of the opinions of the said two professors and for the purpose of said supplementary affidavit of said TKK. The question related to, as I understood, a vaginal treatment, which, it was argued, could be treated at different times, depending on whether the female had a uterus with menstrual flows from, say, 12 years or whether there was no uterus present. Such decisions are for the doctors, I dare, say, and not for the judges sitting in the writ courts I do not want to burden this judgment unnecessarily by referring to the different questions as these may be referred to if found necessary at any point of time, quite easily from the affidavit itself, or a copy of it. 74. I leave the subject to general surgery with only this last remark that out experienced principal Court Officer Mr. Haldar adopted without leave the systematic procedure of bunching together the different original pleadings that were referred to us from time to time, like the supplementary affidavits. These we have kept in a separate file and TKK's supplementary affidavit is, for example, marked (k) amongst the papers in that file. M. S. (Ophthalmology) 75. Haldar adopted without leave the systematic procedure of bunching together the different original pleadings that were referred to us from time to time, like the supplementary affidavits. These we have kept in a separate file and TKK's supplementary affidavit is, for example, marked (k) amongst the papers in that file. M. S. (Ophthalmology) 75. The text discipline is of Ophthalmology and the degree is M. S. According to the judgment of the court below four students have been directed to be admitted, as would appear from page 146 of the paper book in the appeal to Dr. Anindya Kumar Das (FMAT 1384 of 1991). Out of these four, the cases, of Dr. Subrata Guha Thakurta and Dr. Abhrajit Chatterjee have not been argued. The learned judge in the Court below added 4 and 6 marks respectively, to the marks of these two students who had not secured anything extra at all on the basis of the review by the expert appointed by the Vice-Chancellor. I have, with respect no hesitation in allowing these two appeals in favour of the Calcutta University and I would set aside the orders of admission as to these two students. There is no justification for addition of these marks of 4 and 6. To ask the old questions, why 4 ? Why 6 ? How 4 ? How 6 ? If for wrong answers 1.5 are to be added, 1 for the correct answer and 0.5 for removing the effect of deduction of .5 for a wrong answer then it is not easy to see how the mark 4 was arrived at by the learned judge at all. It could only be if, say, a particular question had been left unanswered because a candidate thought the question to be ambiguous and did not answer the question for avoiding deduction of marks. These are matters of great detail. A third column cannot just be appended as his lordship did in the court below, and this I say with all respect, and one cannot go on to direct admission to post doctoral courses without any apparent rhyme or reason. If this third column were not appearing in a judgment of one of my learned brother judges I would have had no hesitation in calling the said third column a whimsical exercise. 76. If this third column were not appearing in a judgment of one of my learned brother judges I would have had no hesitation in calling the said third column a whimsical exercise. 76. So far as the other two students of Ophthalmology are concerned, that is, Chittaranjan Shaw and Gautam Kanti Adak, in each of the cases the learned judge in the Court below added six marks; again no reason was given. These two cases were argued at length by Mr. Chakraborty with the same thoroughness as in the other matters. The questions disputed for Ophthalmology were 1, 4, 6, 25, 38, 67, 87 and 92. The said questions are set out below :–– Mark the most appropriate answer in the answer sheet. 1. The cut off best corrected visual actuity on Snellen's charts for economic blindness in India: (1) Finger Counting 6 meters, (2) 3/60, (3) 6/60, (4) 6/36. 4. Hutchinson's pupil in a case of head injury means: (1) Ipsilateral pupillary construction followed by dilatation, (2) Ipsilateral and contralateral pupillary constriction, (3) Ipsilateral and contralateral dilatation, (4) Ipsilateral dilatation of pupil followed by contralateral dilatation. 6. Swellings in the parotid gland and lacrimal glands can occur in all except one of the following : (1) Mumps, (2) Sareoidosis, (3) Heerford's disease, (4) Mickulicz's syndrome. 25. The treatment of choice in a case of Keratoconus is : (1) Spectacle correction, (2) Contact lenses, (3) Keratoplasty, (4) None of the above. 38. All except one of the following systemic disorders is associated with cataract. (1) Hypoparathyroidism, (2) Hypothyroidism, (3) Atopic eczema, (4) Steven's Johnsson syndrome. 67. Secondary glaucoma in anterior uveitis results from all except one of the following: (1) Increased formation of aqueous humour, (2) Seclusio Pupillae, (3) Total posterior synechiae, (4) Fibrinous exudated in anterior chamber, blocking the filtration angle. (1) is found in the area around embryonic nuclears, (2) may be associated with rickets, (3) has characteristic riders, 4) visual disability is early. 92. Dacryocyspectomy is indicated in all except one of the following: (1) Rhinosporiodosis of lacrimal sac, (2) Malignancy of lacrimal sac, (3) Tuberculosis of lacrimal sac, (4) Chronic dacryocystitis. 77. For Ophthalmology Prof. Ranabir Mukherjee was appointed the University expert; the entire report of Prof. Mukherjee is set out below: From: Prof. Ranabir Mukherjee M. S., DDMS, Ph.D Retd. Head of the Department of Ophthalmology, Calcutta National Medical College. 77. For Ophthalmology Prof. Ranabir Mukherjee was appointed the University expert; the entire report of Prof. Mukherjee is set out below: From: Prof. Ranabir Mukherjee M. S., DDMS, Ph.D Retd. Head of the Department of Ophthalmology, Calcutta National Medical College. Views on M. S. (Ophthalmology) Entrance Examination questions (1989) of the Calcutta University. In the matter of writ application of Dr. Amit Kumar Mukherjee and 32 others, filed in the Calcutta High Court against the Calcutta University, Shri Subhas Bhattacharyya, advocate sent me the following papers and requested me to give my opinion about the alleged ambiguity of the questions set for the above examination. (1) Copy of the Court's order (2) Question paper for M. S. (Ophthalmology) 1989 Entrance Examination. (3) Answer key (4) Answer Scripts of a) WNO-038 b) WNO-133 c) WNO-093 d) WNO-648 e) WGO-236 f) WNO-001 I have gone through the documents carefully and have pleasure to give my comments only in respect of alleged ambiguity of questions. All the questions, in my opinion are by and large simple, basic and non-ambiguous. Altogether 95 questions were set and the candidates were instructed to "choose only one most appropriate answer against each question". The question Nos. 17, 46, 48 and 49 have been repeated in question Nos. 57, 81, 78 and 76. But these repetition of questions might have been done wilfully to confuse the candidates who are to complete all answers in a short time. The examiner might have thought this as part of the examination. But truly, it puts the erring candidates in a most disadvantageous position as ½ mark is deducted for each mistake. For the same mistake he is to sacrifice here 1 mark. In respect of question No. 64 which was wrongly interpreted by an invigilator in the examination hall–– it appears that the University has awarded one mark to each candidate admitting the fault. On careful scrutiny of all the questions, answers given by the candidates and arguments in support of their allegations,–– it appears that they missed the important guideline that they are "to choose most appropriate answer" and in a number of cases they failed to understand the question properly. An example can be cited in respect of question No. 5. QUESTION : The treatment of choice in a case of congenital Dacryocystitis is (1) massage and antibiotic drops (2) Syringing and probing (3) Antibiotic drops (4) Dacryocystorhinostomy. An example can be cited in respect of question No. 5. QUESTION : The treatment of choice in a case of congenital Dacryocystitis is (1) massage and antibiotic drops (2) Syringing and probing (3) Antibiotic drops (4) Dacryocystorhinostomy. The allegation is that all four are true for congenital Dacryocystitis because the standard text books have outline all these as treatment in this condition. The text books have certainly mentioned all but there cannot be any second opinion that treatment of choice in a baby with congenital Dacryocystitis should start initially with massage and antibiotics because all these books have mentioned that the passage usually clears up with the conservative treatment. Hence it should be the most appropriate answer of this question and there is no wrong in it. This type of question can further be elucidated by a similar type of simple question which is understandable even by a layman. QUESTION : The antibiotic to be used in Typhoid fever is : 1) Chloramphenicol 2) Ampicillin 3) Trimethoprim 4) Sulpha Methoxazono The appropriate answer to this is obviously 'chloramphenicol' which is well known. Mention has been made about 3 drugs as effective against typhoid fever in Test Books. (Harrison's Principles of Internal Medicine, 9th Edition, P-644. Surely, on this pretext this question cannot be challenged as ambiguous or wrong. In my opinion, it is really difficult, if not impossible to set question in medicine which was only one unanimous answer in the way the students want it in a multiple choice question with 33 years background in teaching and examining the students of Medicine, I strongly feel that the answers to questions for any qualifying examination should be viewed only from academic angle and a teacher should have a prerogative to decide which answers are correct and appropriate. I take to add that in my opinion there is no ambiguity in the questions set in the Entrance Test for Post Graduate Medical Degree and Diploma Courses (Ophthalmology) and the model answers are only the correct answers. Sd/- Prof. RANABIR MUKHERJEE 78. On behalf of the students the report was attacked because of its extensive nature; it was also said that Prof. Mukherjee was not directed to be given the writ petitions and was not to deal with the case of the students like dealing with allegations in an affidavit. Sd/- Prof. RANABIR MUKHERJEE 78. On behalf of the students the report was attacked because of its extensive nature; it was also said that Prof. Mukherjee was not directed to be given the writ petitions and was not to deal with the case of the students like dealing with allegations in an affidavit. Be that as it may, I think the report is illuminating and that it does show the types of ways in which a particular trained man in an expert discipline might assess a particular answer to be the most appropriate. If we were to say that questions with such 'assessment choices' are not to be set at all, then perhaps we would be trying to introduce by legal methods certainty to a degree which is not achievable in practice. It is not improbable that in matters of high technical opinion there will be differences even amongst the trained experts. Such differences may result from a difference in style or a difference in adoption of the more novel or yet half-tried methods of the curative art. In a post doctoral medical course such differences of opinion might well have a bearing on the result of the students who appear for the entrance examination. How are we to remove to such differences? Are the Courts to say that prior to appointment of the expert who will set the model answers the courts permission is to be obtained? Indeed these questions occur to me in that the very act of challenging examination results in a writ petition seeks to remove the judiciary to the arena of the executive, and surely such removal is not to be encouraged in the least. 79. The aforesaid questions and the report of Prof. Ranabir Mukherjee would be found in the supplementary paper book containing documents relating to M.S. Ophthalmology. In the said paper book is also included a report of Dr. Debaprasad Ganguly supporting some of the answers given by the students and criticising some of the questions, five in number. For the reasons mentioned earlier I am of the opinion that the Court in these matters should not set out to evaluate the conflicting opinions of the experts for arriving at the appropriate model answers for the disputed questions. It is not because the Court cannot pronounce on conflicting expert opinions. For the reasons mentioned earlier I am of the opinion that the Court in these matters should not set out to evaluate the conflicting opinions of the experts for arriving at the appropriate model answers for the disputed questions. It is not because the Court cannot pronounce on conflicting expert opinions. Indeed, when the point truly arises in a legal dispute, and when the point involves a decision upon conflicting expert opinions, the court cannot sit silent and uncomprehending. The court must give an answer by taking into consideration expert opinions, and if necessary, by appointing its own independent experts and also by examining the experts in the witness box. Be the subject ever so abstruse, over so technical, it is possible, with the written report and oral examination of several experts to come to a reliable opinion, on the part of even a lay judge when be is taking up the particular legal matter involving the decision on the said technical point. 80. No, it is not for the difficulty in the matter that I refrain from undertaking this exercise. It would be possible to call these students to the box, it would be possible to all the paper setter doctors to the box, it would be possible also to call Prof. Mukherjee and Dr. Ganguly to the box, and may be also other experts, and examine them with regard to each and every disputed question of Ophthalmology and then come to the conclusion whether the model answer was in fact the most appropriate or not. But that is not the function of a Court which is concerned in the issuance of a writ either on a jurisdictional issue or on the issue of enforcement of a constitutional right. The writ Courts would cease to function because of the overwhelming weight of litigation challenging executive appropriateness of action if the courts were to entertain such disputes in a writ matters. 8. One word clarification, and may be also repetition. The above difficulty of the courts not ordinarily examining facts in a writ matter cannot be got rid of simply by filing a suit instead of presenting an application. It is not the law that the judiciary shall discharge executive function in suits but shall not discharge an executive function in a writ application. It is a matter of substance. The above difficulty of the courts not ordinarily examining facts in a writ matter cannot be got rid of simply by filing a suit instead of presenting an application. It is not the law that the judiciary shall discharge executive function in suits but shall not discharge an executive function in a writ application. It is a matter of substance. When sometime the courts see that the writ is inappropriate and that a suit should have been filed, may be even for the purpose of obtaining a writ ultimately (as a claim in the suit), what the court directs is, that though certain disputed questions of facts are involved, yet those are not such questions as re utterly not entertainable in writ matters. Such writs from the grey area between those writs which do not lie at all, because of the disputed questions of fact, and those writs which definitely lie because facts are not much in dispute and questions of jurisdiction and law are involved. 82. These writs in the grey area which call for determination of some facts not involving say, determination of accuracy of executive work on the part of the judiciary, are, to my mind, extremely rare, I do not claim to have had a most excellent practice on my part, nor am I a Judge of any very long standing, but in whatever experience I have, I have never personally come across a writ being issued in a suit. Only recently have I seen reports of what seem to be writ suits (AIR 1991 SC 2219 and AIR 1992 SC 111 ). Rare indeed is the case where a writ is claimed in a suit because some such disputed question of facts is involved as the writ court in its extraordinary jurisdiction does choose to determine. What would those writs be ? Where are writ suits more appropriate than writ application ? I need not tarry to consider this in any detail; the question does not arise in this case because the facts of the nature canvassed before us cannot be canvassed for redress by way of a writ. If the students think that they can claim damages against the University for any tort then they might institute an action and try for establishment of their claim. I do not know, nor do I want to know, what the outcome will be. If the students think that they can claim damages against the University for any tort then they might institute an action and try for establishment of their claim. I do not know, nor do I want to know, what the outcome will be. But the remedy sought for is a mandamus for admission. These facts are not to be gone into in a writ court as against an authority not properly functioning (allegedly), whether the writ is prayed for by way of an application or as a claim in a suit. 83. I do not want to give the exact pages in the supplementary paper book of Ophthalmology which were referred to by Mr. Chakraborty with reference to each of the above disputed questions. There is no point in doing so, only to demonstrate that we went through these pages trying to understand the nature of the conflict of opinions involved. Suffice it to say that we entered upon these facts relating to Ophthalmology on the 18th of Nov. 1991, which was the 16th day of hearing of these appeals, a good number of which 16 days having already been absorbed in examination of materials relating to Orthopaedics and General Surgery. Apart from referring to the said supplementary paper book. Mr. Chakraborty also referred to be the supplementary affidavit of Gautam Kanti Adak affirmed on 11th January, 1990 which we have marked with the letter (f) in the bunch of our additional files. Dr. Debaprasad Ganguli’s opinion in support of the students is annexed to this supplementary affidavit. Mr. Chakraborty also referred to the supplementary affidavit of Chittaranjan Shaw affirmed on 10th January, 1990 (which we have marked with the letter (i) in the file of additional papers) as well s to several flag marked materials relating to Chittaranjan Shaw’s case which we have marked with the letter (g) in the additional papers. As Chittaranjan Shaw’s affidavit in reply (filed in the Court below) was not included in the paper book Mr. Chakraborty caused production of the same before us and we kept it in the file of additional papers marking it with the letter (h); it had been affirmed on 10th May, 1990. 84. As Chittaranjan Shaw’s affidavit in reply (filed in the Court below) was not included in the paper book Mr. Chakraborty caused production of the same before us and we kept it in the file of additional papers marking it with the letter (h); it had been affirmed on 10th May, 1990. 84. Regarding one question and answer I would like to place some materials, which were shown to us, on record, if only to indicate the type of work that would be involved in coming to proper decisions on the issue of choosing the appropriate model answers. The question that I select is question 25. Here the University’s model answer was that the treatment of choice for Keratoconus was contact lenses; whereas Chittaranjan Shaw and Adak had chosen the third alternative, which was keratoplasty. The notes in this regard are at pages 17 and 18 of the supplementary paper book of Ophthalmology. The same are set out : Q. 25. The treatment of choice in case of Keratoconus is : (1) Spectacle correction (2) Contact lenses (3) Keratoplasty (4) None of the above Model answer (2) My answer (3) Notes : The treatment of choice in a case of Keratoconus is Keratoplasty (Ans. 3). (i) Person’s diseases of the eye, 17th Edition, (ii) The eye and its disorders by P. D. Trevor-Roper/P. V. Curran, 2nd Edition, (ii) Principles and Practice of Ophthalmology by G. Peyman, D. Saunders & Mr. Goldberg, Edition 1987, Vol. I. Reference 1. Person’s diseases of the eye, p. 145, Enclr-I. “In the early stage vision may be improved with spectacles but contact lenses are more beneficial...............if, however, the disease progresses and the cone becomes hydrated, the most satisfactory treatment is the removal of a large whole thickness disc from the central area of the Cornea and its replacement by a corneal graft. Corneal transplants (Keratoplasty) are particularly successful in this condition, and should be considered in progressive cases and whenever visual loss has become considerable.” Reference 2. P. D. Trevor-Roper/P.V. Curran : The eye and its Disorders p. 404, Enclr.-2. “There is no evidence that contact lenses act as a form of trust in containing further protrusion of the cone. Corneal transplants (Keratoplasty) are particularly successful in this condition, and should be considered in progressive cases and whenever visual loss has become considerable.” Reference 2. P. D. Trevor-Roper/P.V. Curran : The eye and its Disorders p. 404, Enclr.-2. “There is no evidence that contact lenses act as a form of trust in containing further protrusion of the cone. In the end contact lenses cannot be tolerated because the corneal distortion reduces the comfortable wearing time to only an hour or so, a day; this combined with the onset of apical soarring, indicates the need for a penetrating Keratoplasty as radical cure. Reference 3. Principles and practice of Ophthalmology : Peyman Vol. I p. 444, Enclr.-3. “Penetrating Keratoplasty is quite successful in this condition and clear grafts may be obtained in more than 90% of patients. INFERENCE : From the above references, it is evident that in the treatment in a case of Keratoconus contact lenses are only beneficial in the early stages. It only improves the vision temporarily cannot control the disease process and also cannot be used in advanced cases. As, Keratoplasty (Choice-3) is the only method which radically cures the conditions even in advanced cases, also results are most encouraging. So, it should be the treatment of choice and not contact lenses (Choice––2). Therefore, the model answer is demonstrably wrong and my answer is demonstrably correct. 85. Without examining any expert from the box, the little that I understood was that Keratoconus is a disease where the cornea, that is the visible portion of the eye, becomes like a cone. In the perfect eye, the surface of the cornea is smooth, like a segment of a sphere. The case of the students was that in the changed condition of the cornea, contact lenses on the cornea would be in appropriate because it would cause apical scarring, meaning thereby scarring of the apex of the corneal cone. Thus, they said, Keratoplasty would be better. I confess that my understanding may be wrong but I also have to say that this understanding was not arrived at because of any other technical help from counsel appearing; they could help merely be reading reports and books. Am I to hold on this flimsy understanding that Keratoplasty is better ? What surgical treatment is exactly involved in Keratoplasty ? What are its possible bad effects ? Am I to hold on this flimsy understanding that Keratoplasty is better ? What surgical treatment is exactly involved in Keratoplasty ? What are its possible bad effects ? Can it be done again and again ? Are all contact lenses of all materials equally bad ? Are there any practical experiences of any Indian experts showing Keratoplasty to be a definitely better treatment than contact lenses, and if so, for which patients at which age group did that method of treatment appear to be better ? If I were to embark on a fact finding expedition these would be some of the preliminary questions to which I would like to have definite answers. I have no hesitation in coming to the conclusion that the writ court is not to sit for determining such diverse facts for so many different students,–– either those who re before us or those who might well be before us in future if we do embark upon these facts with a view to finding that most appropriate answers. In that event, we the Judges, would be doing the executive work of the University. Gynaecology 86. We come to the next and the last stream of Gynaecology which is the degree for M.D. (Obstretrics and Gynaecology); the maximum number of candidates were admitted in the Court below in this stream. It is in this stream that the case of Dr. Mihir Kumar Sarkar also falls, which was argued by Mr. Chatterjee. This case of Dr. Sarkar I tke up first, passing on them to the clients of Mr. Chakraborty who were in the stream of Gynaecology. 87. Dr. Sarkar stands apart in that Dr. Sarkar did not obtain, or get, an order for provisional admission. It is also the admitted case with regard to Dr. Sarkar that after the review by the Vice-Chancellor’s expert Dr. Sarkar’s marks went above the last qualifying marks for M.D. Gynaecology. Mr. Chatterjee therefore did not enter into the factual aspect of the questions set in the Gynaecology paper at all. The simple case of Mr. Chatterjee was since his client had crossed the last marks his client should be admitted. 88. There were many arguments of Mr. Chatterjee which were made only by them. First Mr. Chatterjee said that the crossing of last marks should be sufficient to be sure an admission for his client. The simple case of Mr. Chatterjee was since his client had crossed the last marks his client should be admitted. 88. There were many arguments of Mr. Chatterjee which were made only by them. First Mr. Chatterjee said that the crossing of last marks should be sufficient to be sure an admission for his client. To the objection of the University that the crossing of the last qualifying candidate’s marks is not an absolute indication that Mr. Chatterjee’s client would also have crossed the last marks if all the papers of all the appearing candidates had been given the benefit of review by the Vice-Chancellor’s appointed expert, Mr. Chatterjee’s reply was that the other candidates have already got admission and therefore why should their papers be reviewed. With respect, this misses the point. The point is to see whether Mr. Chatterjee’s client has been excluded wrongly from the merit list. That point cannot be conclusively determined in favour of Dr. Sarkar unless the merit list is fully reviewed by the Vice-Chancellor’s expert. Without such a full scale review Dr. Sarkar cannot be said to have a cast iron case for admission. 89. Secondly, Mr. Chatterjee raised a dispute about the examinations at all being properly held, which I have already dealt with in paragraphs 46-48 (and 12) above. 90. Thirdly, Mr. Chatterjee said that this was only an entrance examination and accordingly the court’s approach need not be so stringent as it would be and it been a final M.D. examination. I am afraid it is not a question of the degree of the stringency of the legal scrutiny at all. It is a question as to whether the court will assume jurisdiction at all in the matter of the executive work of the University in selecting candidates who will be permitted to read the post-doctoral courses. Unless there is some jurisdictional or administrative lapse which may be corrected or quashed on the general principles of administrative and Indian Constitutional law, the court will not rectify the University’s mere errors, assuming that the University has committed certain errors in the matters of candidates. An attempt to expose such errors would entail a detailed investigation into such facts and opinion as would be like sitting in appeal over the grant of admission by the University, which is not the business of the writ court. 91. Fourthly, Mr. Chatterjee submitted that Dr. An attempt to expose such errors would entail a detailed investigation into such facts and opinion as would be like sitting in appeal over the grant of admission by the University, which is not the business of the writ court. 91. Fourthly, Mr. Chatterjee submitted that Dr. Sarkar had raised objections with regard to the ambiguity of questions immediately after the examination and in that regard he pointed out paragraph 14 of his writ petition at page 13 of the paper book relating to him. Though the University has canvassed again and again, that if examination re to be challenged, then those must be so challenged immediately after the holding thereof, and not in a speculative manner after the results have come out and some students have found themselves to have been unsuccessful, I do not think that is a matter of any very great importance. The challenge to questions and the challenge to answers, thrown at any stage, remains subject to the same basic objections. If we were enforcing a contractual right or if we were enforcing an award the questions of waiver or delay would arise. But in these actions we are not enforcing rights so much as we are called upon to enforce the governmental responsibility of fair play. Thus, if the rule of fair play has not been followed, and article 14 has been broken, then it would little matter at what point of time the student came, be it three months early or be it three months late. However, on the view that I take with regard to the rest of the case it must be stated that I have found the University not to owe, so to speak, any constitutional duty to the student to set each question in a perfect way, or to set each model answer with perfect accuracy, which could be supervised by a court of law. 92. Mr. Guha appeared for Dr. Subhas Halder and Dr. Ashoke Das, who were respectively writ petitioners 2 and 4 in the petition filed by Dr. Anindya Das and 4 others. Dr. Halder having already appeared in the 1990-91 examination and having already got in, Mr. Guha argued only the case of Dr. Das. He commented upon the several questions that has been disputed already by Mr. Chakraborty while he had been arguing the cases of his clients who were examined for Gynaecology. Anindya Das and 4 others. Dr. Halder having already appeared in the 1990-91 examination and having already got in, Mr. Guha argued only the case of Dr. Das. He commented upon the several questions that has been disputed already by Mr. Chakraborty while he had been arguing the cases of his clients who were examined for Gynaecology. Amongst the clients of Mr. Chakraborty and the client of Mr. Guha, the questions that were disputed in the paper for Gynaecology where question 4, 6, 13, 14, 31, 35, 67, 86, 87, 92 and 95 which are set out below :–– 4. The most common bacteria causing puerperal thrombophlebitis is :–– (a) E. Coli, (b) anaerobic streptococcus, (c) erobic streptococcus, (d) anaerobic staphylococcus. 6. Rupture of ectopic pregnancy is earliest when the implantation is in : (a) isthumus of the tube, (b) ampulla of the tube, (c) interstitial portion of the tube, (d) ovary. 13. Normal placental barrier is normally crossed by : (a) meconium, (b) insulin, (c) fetal red cells, (d) heparin. 14. Nutrients are transported to the fetus via the placenta by the following mechanism: (a) diffusion, (b) pinosytosis, (c) osmosis, (d) passive transport. 31. Shortest distance of ureter from cervix is : (a) 0.5 mm, (b) 1.0 mm, (c) 12 mm, (d) 3 cms. 35. Approximate percentage of chromosomal abnormalities in first trimester abortions is : (a) 1% (b) 10% (c) 30%. 37. Menstrual flow is associate with : (a) withdrawal of progestcrone and or estrogen, (b) withdrawal of FSH (c) withdrawal of LH, (d) prolongemaintenance of estrogen. 67. Oligespermia is associated with : (a) psolctinomas (b) small testes, (c) klinefelters syndrome (d) testicular feminization. 86. The following hormone has a sodium retaining effect : (a) estrogen, (b) progesterone, (c) thyroxin, (d) testosterone. 87. The commonest symptom of a luteal phase defect is : (a) irregular vaginal bleeding, (b) early abortions, (c) infertility, (d) plain lower abdomen. 92. The major symptoms of restoccele is : (a) focal incontinence, (b) difficult defecation, (c) a falling out sensation, (d) dysparunla. 95. Management of prematures rapture of membrances at 36 weeks include : (a) Conservative treatment, (b) Dexamethsone, (c) syntocinon drip, (d) oral duvadilon. 93. At page 20 of the informal bunch of papers handed up Mr. Guha on behalf of his client Dr. 95. Management of prematures rapture of membrances at 36 weeks include : (a) Conservative treatment, (b) Dexamethsone, (c) syntocinon drip, (d) oral duvadilon. 93. At page 20 of the informal bunch of papers handed up Mr. Guha on behalf of his client Dr. Das, six questions are indicted of which 5 (five) are stated to have been ambiguous and one has been stated to have been defective. In any event, Mr. Guha stated before us, his client should secure 1.5 marks for each of the five questions correctly answered but treated by the University as wrong and his client should get one more mark for question 67 which his client could not attempt, as it was defective, for fear of losing ½ mark by way of deduction. 94. Before we pass on to the questions or their defects we must clear up one extra point which had been raised on behalf of Dr. Das. It was said that Dr. Das had rendered rural service and according to clause 6 of the first part of the General Information circulated by the University, he would be entitled to five additional marks. In case these 5 marks are added he would, with the added marks given by the Vice-Chancellor’s expert, equal the marks of the last successful candidate in the stream of Gynaecology which came to 77.5. 95. To examine this point it should be clarified that in the post-doctoral examination there are two streams set apart; one is the stream for general candidates and the other is stream for those doctors who are already in the West Bengal Health Service. For the West Bengal Health Service doctors there is already a quota reserved in the different streams and these Health Service doctors practically complete amongst themselves for entering into this reserved sets. It is usually the case, (without casting any aspersior upon anybody), that the last qualifying marks for the general candidates is more than the last qualifying marks for the West Bengal Health Service candidates. 96. In the 1989-90 examination for Gynaecology it so happened that the last marks for general candidates as well as for WBHS doctors were both 77.5. This means that even for the West Bengal Health Service stream 77.5 was the last mark. For keeping in store an additional mark of five, all the candidates answered only 95 questions, and not 100. 97. This means that even for the West Bengal Health Service stream 77.5 was the last mark. For keeping in store an additional mark of five, all the candidates answered only 95 questions, and not 100. 97. The 2nd and the 6th clause of the first part of the general information circulated by the University are set out below : (2) Admission will be made in order of merit the merit list being drawn up by computing marks obtained in the test examination, and weightage as per Clauses 4, 5, and 6 below provided that Govt. sponsored candidates admitted against government quota shall not be entitled to the benefit of provisions under item below. (6) That while marks will be allotted for candidates rendering rural service Armed Force Medical Service for not less than 3 years or belonging to Scheduled castes and scheduled tribes provided that the candidates secured minimum qualifying marks i.e., 30 in the written examination. 98. It is clear from the above that so far as the government sponsored candidates, re concerned they would not get the additional marks of 5 (five). This additional marks would be available only for general candidates with a rural service background which is usually always there in the case of WBHS doctors. 99. It was stated by the University before us that Dr. Das had never claimed these additional 5 marks in the writ petition in the Court below. It was said that such claim was not made because Dr. Das well knew that he was a West Bengal Health Service candidate, and the additional 5 marks he could not ever get. He well knew that he was competing amongst the West Bengal Health Service doctors for one of the reserved seats and that he could not simply get a handicap over his other fellow service doctors by obtaining an additional five marks which almost all the West Bengal Health Service doctors can claim also for rural service. 100. To prove the records as to rural service Dr. Das presented an application for receipt of further evidence under O. 41 Rule 27 of the Code of Civil Procedure. Under our High Court rules we have made the Code applicable to writs. 100. To prove the records as to rural service Dr. Das presented an application for receipt of further evidence under O. 41 Rule 27 of the Code of Civil Procedure. Under our High Court rules we have made the Code applicable to writs. I could not find any reason to allow these materials to go on record as these appeared to be unnecessary; also because they were not felt to be needed for passing complete judgment in the matter, nor for any other substantial needs in the ends of justice. It may be just as well mention that the University pointed out that the Roll no. of Dr. Das, which was WGO-973, would show that he was a Government sponsored candidate, as opposed to, say, the Roll no. of Dr. Haldar which was WNO.382. It was also mentioned that without the government sponsoring the West Bengal Health Service doctors, they cannot take this post doctoral examination because they would not be able to pursue the course without Government leave for study. 101. Regarding the materials for attacking the questions and the model answers, Mr. Nigam Kumar Chakraborty as well as Mr. Guha placed several materials before us. Mr. Guha’s materials were pages 20, 28-43, 47, 48 and 54-57 of the additional bunch of papers handed up by him. So far as Mr. Chakraborty’s clients for Gynaecology are concerned, apart from relying upon text-books, Mr. Chakraborty also relied upon the expert opinions supporting the case of those students as given by Dr. B. N. Chakraborty and Dr. Smt. Santi Dutta, which commence respectively at pages 23 and 34 of the supplementary paper book relating to Gynaecology. The expert's report in this case in so far as the Vice-Chancellor's appointment pursuant to order of Court is concerned, that came from Dr. Dilip Kumar Roy and that is at page 7 of the supplementary paper book. No. fewer than seven questions in relation to the model answers were found by the University expert to be imperfect and thus, the addition of marks because of the review by the Vice-Chancellor's expert has helped the students the most in the stream of Gynaecology. The students thus obtained additional marks anywhere between 5 and 8, I may mention in passing the stream of Cardiology, where Dr. A. Bagchi secured 14.5 additional marks because of re-examination by the University expert. 102. The students thus obtained additional marks anywhere between 5 and 8, I may mention in passing the stream of Cardiology, where Dr. A. Bagchi secured 14.5 additional marks because of re-examination by the University expert. 102. I pause here a little only to consider where the last qualifying mark would perhaps have gone, if all papers also were given the benefit of the University expert's review. In the matter, therefore, neither of provisional admission nor of final admission, is the crossing of the qualifying marks by reason of a review a final or conclusive argument for declaring the case of the unsuccessful student writ petitioner to be cast iron or fool proof. 103. On the above basis I would not be right in directing compulsory admission even of Dr. Kalyan Roy for the DMO course or even for Dr. Mihir Sarkar in the stream of Gynaecology though they have crossed last qualifying candidate's marks by reason of the Court's review of their papers. I have taken this strict view contrary to Mr. Chatterjee's submission that should not be taken in the matter of a mere admission to courses. I am of the opinion that the courts should not interfere with the University work of education at any level, least of all at the post doctoral level, unless it can be made out that the University exceeded in no uncertain terms its jurisdiction, or its statutory authority, or the constitutional limitations. Without meaning any disrespect to any of the unsuccessful candidates, I think the time has come for us to speak in plain terms and declare that the courts are not there to pass failed candidates and put them at par with the regularly successful ones. Conclusion : 104. The order for University experts being appointed was passed on 6th December, 1989 and it was made applicable with regard to the answer script of the following 32 candidates: (1) Dr. Asim Ghosh, (2) Dr. Asis Kr. Dey, (3) Dr. Sarkar Kr. Chatterjee, (4) Dilip Kumar Bhattacherjee, (5) Dr. Biplab Kr. Bhattacharyya, (6) Dr. Gargi Bandopadhaya, (7) Gautam Kr. Roy, (8) Pulak Kr. Saha, (9) Nikhil Saha, (10) Nirmal Kanti Saha, (11) Abrajit Chattopadhyay, (12) Ranjan Chowdhury, (13) Subrata Guha Thakurta, (14) Subodh Dutta, (15) Dwija Pada Saha, (16) Goutam Das, (17) Nikhileshwar Khaswas, (18) Raj Kumar Chhajer, (19) Md. Sarkar Kr. Chatterjee, (4) Dilip Kumar Bhattacherjee, (5) Dr. Biplab Kr. Bhattacharyya, (6) Dr. Gargi Bandopadhaya, (7) Gautam Kr. Roy, (8) Pulak Kr. Saha, (9) Nikhil Saha, (10) Nirmal Kanti Saha, (11) Abrajit Chattopadhyay, (12) Ranjan Chowdhury, (13) Subrata Guha Thakurta, (14) Subodh Dutta, (15) Dwija Pada Saha, (16) Goutam Das, (17) Nikhileshwar Khaswas, (18) Raj Kumar Chhajer, (19) Md. Rafikul Alam, (20) Bijoy Kumar Gulgulia, (21) Goutam Kanti Adak, (22) Chittaranjan Shaw, (23) Tapas Kumar Kundu, (24) Debendranath Mukherjee, (25) Dr. Anindya Kumar Das, (26) Dr. Pradip Kr. Pal, (27) Dr. Arunabha Das, (28) Dr. Tapas Kr. Roy, (29) Dr. Saidul Islam, (30) Dr. Aninda Kumar Mondal, (31) Dr. Trisit Kr. Chatterjee, (32) Dr. Amal Kumar Chatterjee. 105. On 16th March, 1990, the provisional admission subject to the final result of the writ was granted to the following 26 candidates, and, to repeat, Dr. Mihir Kr. Sarkar was not before the Court : a) Subimal Gangopadhaya M/s. Gen. Surgery. b) Dhruba Ghosh –do– c) Tapas Kr. Kundu –do– d) Raj Kumar Chhajer –do– e) Asim Kr. Dey –do– f) Bijoy Gulgulia –do– g) Jayanta Bhattacharyya M/s. Orthopaedics h) Rabindra Nath Josh M/D (O & G) i) Prtha Guha Roy –do– j) Subhas Chandra Haldar –do– k) Debdatta Ghosh –do– l) Ashoke Kr. Das –do– m) Kalyan Roy –do– n) Samiran Dey –do– o) Nirmal Kanti Saha –do– p) Pulak Kr. Saha –do– q) Gautam Ray –do– r) Arunava Das –do– s) Aninda Kumar Mondal –do– t) Gargi Banerjee –do– u) Subrata Guha Thakurta M/s Opthalmology v) Abharajit Chatterjee –do– w) Gautam Kumar Adak –do– x) Nikhilendu Khawas M/d. Rediotherapy y) Atindra Nath Bagchi Dip card/Cardiology z) Nikhilendu Mahapatra Gynae. Obst. 106. As I have said above, for the candidates Partha Guha Roy, Debdatta Ghosh, Pulak Kr. Saha. Aninda Mondal, Nikhilendu Khawas and Atindra Bagchi no appeals were preferred. This was so, though Dr. Guha Roy's case was not before the learned Judge at all, being filed on the Original Side. 107. So far as the Dr. Kalyan Roy is concerned, I have explained that the University succeeded in the appeal against the order for provisional admission as Dr. Roy went beyond the last marks only for the DMO course and no for the M.D. course for which provisional admission had been ordered. 108. 107. So far as the Dr. Kalyan Roy is concerned, I have explained that the University succeeded in the appeal against the order for provisional admission as Dr. Roy went beyond the last marks only for the DMO course and no for the M.D. course for which provisional admission had been ordered. 108. As far as B. Gulgulia and N. Mahapatra are concerned the appeals of the University as against their provisional admission were dismissed. 1 have discussed this also above. 109. As pointed out in this judgment, I do not want to disturb the students already provisionally admitted and pursuing their courses either pursuant to the unappealed order of the first court, or as affirmed by way of dismissal of appeal. Trying to undo what has been done will work injustice, even though I might be of the opinion that the original order of provisional admission can in theory be upset as a final result of the concerned writs. In so for as the other students are concerned, their writs are all dismissed and prayers rejected, and they need not be admitted to any post doctoral course of the University unless, of course, any of them has already appeared and succeeded in any of the entrance tests or in future appears and succeeds in any of such tests. Though perhaps it is a matter of no importance, yet I wish them success in future for all that such wishes might be worth. We have been told that Dr. Mihir Kumar Sarkar in fact has been pursuing the DMO course, and, as far as the information went, has already passed. 110. In conclusion I mention below the remit of these appeals against the names of each of the particular students mentioned by the learned Judge in the Court below in the two orders in appeal. M. S. (General Surgery) 1. Subimol Ganguly : His case was argued by Mr. Chakraborty and we set aside order of admission as we are not in agreement with either the legality or the factual justification of increase of marks allowed by the learned judge in the court below in the third column. The University's appeal succeeds. 2. Dhruba Kr. Ghosh : The position is the same as that of Subimol Ganguly. 3. Chakraborty and we set aside order of admission as we are not in agreement with either the legality or the factual justification of increase of marks allowed by the learned judge in the court below in the third column. The University's appeal succeeds. 2. Dhruba Kr. Ghosh : The position is the same as that of Subimol Ganguly. 3. Saidul Islam : Nobody has argued the case of Saidul Islam to resist the appeal of the University against the order of his admission. We could in any event never sustain in law or in facts the addition of 7 marks granted to him by the learned Judge in the third column. The University's appeal succeeds. 4. Rafiqul Alam : Mr. Chakraborty has half abandoned the case of Dr. Alam though he refrained from abandoning it altogether. The reason was that as far as his information went Dr. Alam had already been admitted to a post doctoral course. The University's appeal succeeds. 5. Tapas Kr. Kundu : We are told by the University that Dr. Kundu came in later in the writ proceedings and was not there in the original bunch. Be that as it may, I allow the University's appeal with regard to Dr. Kundu for the same reason as allow the appeal as against Dr. Subimol Ganguly. No separate paper book was filed regarding Dr. Kundu's case, but all the relevant papers were before us. 6. Raj Kumar Chhajer : The University's appeal succeeds and the order for admission is set aside. I again mention that the addition of 5 marks given in the third column on the court's own assessment is, to my mind, unsustainable in law and totally unexplained by the learned first court on facts. 7. Asim Kumar Dey : We were told that the writ filed by Dr. Dey was withdrawn. It appears that though Dr. Dey practically equaled the marks obtained by the last successful candidate, even according to the Vice-Chancellor's expert, yet, on the basis of the above reasoning contained in the body of the judgment we would have to allow the appeal of the University as against Dr. Dey in any event. The question however does not arise, as the writ was withdrawn. The University's appeal succeeds. 8. Bijoy Kumar Gulgulia : Dr. Gulgulia was provisionally directed to be admitted by the order dated 16th March, 1990, along with many others. Dey in any event. The question however does not arise, as the writ was withdrawn. The University's appeal succeeds. 8. Bijoy Kumar Gulgulia : Dr. Gulgulia was provisionally directed to be admitted by the order dated 16th March, 1990, along with many others. The appeal of the University as against Dr Gulgulia's provisional admission failed. As such Dr. Gulgulia has pursued his studies. Even after the hearing of the case was over Mr. Chakraborty orally mentioned the matter for obtaining an order on behalf of the Dr. Gulgulia with regard to a direction upon University to accept fees on behalf of Dr. Gulgulia for successful completion of the course of studies undertaken. We allowed that prayer. I have been unable to bring myself to allow the University's appeal as against Dr. Gulgulia's studies undertaken for about 2 years. The University's appeal as against Dr. Gulgulia's final admission order fails not because I am satisfied either that the provisional admission was granted on a cast iron case or because the final admission was appropriately affirmed by the learned Judge himself giving 4 additional marks in the third column; but Dr. Gulgulia's appeal succeeds because the provisional order for admission has taken effect for two years and it cannot now be undone without serious injustice. Allowing the University's appeal in the case of Dr. Bijoy Kumar Gulgulia would in my opinion be an instance where the remedy would be worse than the disease; accordingly the University's appeal fails. M. D. (Obstetrics’ Cynaecology) 1. Rabindra Nath Jash : This case was not even before the learned Judge though his lordship granted final admission to this candidate. The writ of this candidate was filed on the Original Side and his lordship in the court below was disposing of matters only on the Appellate Side. The appeal with regard to the matter of Rabindra Nath Jash is pending before another division bench. It is a little difficult to reach an appropriate appellate order under these circumstances. I shall only say that the mention of Dr. Jash and all observations and directions with regard to him in any shape shall be treated as deleted from the concerned judgment and order under appeal. 2. Partha Guha Roy : Again this was an Original Side matter. Again the learned Judge put this name in his lordship's chart of final admission without any apparent reason. Jash and all observations and directions with regard to him in any shape shall be treated as deleted from the concerned judgment and order under appeal. 2. Partha Guha Roy : Again this was an Original Side matter. Again the learned Judge put this name in his lordship's chart of final admission without any apparent reason. With respect, I am unable to take any other course than striking out the name of Dr. Partha Guha Roy from the list of doctors listed by the learned Judge and to delete all observations with regard to him as in the case of Rabindra N. Josh. This however must be said with one reservation. Partha Guha Roy was granted provisional admission because, on the review by the Vice-Chancellor's expert, his marks' crossed the marks obtained by the last qualifying candidate. The University did not appeal from the order of provisional admission. Like Dr. Gulgulia, Dr. Guha Roy has also presumably completed or practically completed his course of study. I would not want to disturb him at the end of the course. Whatever I say with regard to Dr. Partha Guha Roy will not in any manner be construed as any permission to the University to disturb Dr. Guha Roy from completing his course. If and when however the original side writ matter of Dr. Guha Roy is finally disposed of, either in the first court or in the Appellate Court, unless it has already been so disposed of, needless to say, the courts hearing such matter would be naturally as free to proceed with the matter as we have been free to proceed with our appeal with regard to the other doctors. 3. Subhas Chandra Halder : Dr. Halder has joined the course this year. On instructions Mr. Sukumar Guha appearing for him did not defend the appeal preferred against Dr. Halder. Thus the order for compulsory admission granted in favour of Dr. Halder is set aside and the University's appeal succeeds as against him. This order will naturally not prejudice or affect Dr. Halder in any manner with regard to the admission that he has otherwise obtained outside court by taking fresh examination and will not also affect him in the pursuit of his post-doctoral studies under taken after such independent admission. 4. Debdtta Ghosh : Dr. This order will naturally not prejudice or affect Dr. Halder in any manner with regard to the admission that he has otherwise obtained outside court by taking fresh examination and will not also affect him in the pursuit of his post-doctoral studies under taken after such independent admission. 4. Debdtta Ghosh : Dr. Ghosh was admitted provisionally to the diploma course of obstetrics and gynaecology being called the DMO. He has also practically finished the course. There was no appeal by the University from the order of provisional admission granted to Dr. Ghosh. For the reasons explained in the matter of Dr. Gulgulia, the University's appeal as against Dr. Ghosh fails. 5. Ashoke Kumar Das : Mr. S. Guha appeared for Das. I allow the University's appeal with regard to Dr. Das as I do not find the addition of 5 marks in the third column with regard to Dr. Das to be sustainable in the exercise of the Court's writ jurisdiction. 6. Kalyan Roy : This client of Mr. Chakraborty might have read the DMO course if the provisional admission had been taken by him and had been granted to him on the basis of his crossing the last qualifying marks in the DMO course. That not having been done and the appeal against the order for his provisional admission to the degree course having succeeded. Dr. Roy is in the same position as the other doctors whose admissions are being set aside by us. The University's appeal succeeds as against him. 7. Samiren Dey : The appeal of the University succeeds and the order for admission is set aside. 8. Pulak Kumar Saha : Though in the chart in the judgment of the Court below Dr. Saha is shown to have only equaled the marks of the last qualifying candidate by reason of the addition of marks of the Vice-Chancellor expert yet, the University submitted that he had crossed the last qualifying marks; on a proper interpretation of the expert’s report it appeared to the University that he should get 6.5 and not 5 as additional marks. The University stated so definitely before us, though not before the Division Bench considering the appeals from the orders for provisional admission see 1990 (1) CLJ at paragraph 30 at pages 506 and 507. Dr. The University stated so definitely before us, though not before the Division Bench considering the appeals from the orders for provisional admission see 1990 (1) CLJ at paragraph 30 at pages 506 and 507. Dr. Saha was thus granted provisional admission and no appeal was preferred from the order of grant of his provisional admission. He has also studied after such admission. The appeal in respect of Dr. Saha, therefore, fails for the same reason as the appeal against Dr. Gulgulia. 9. Goutam Ray : The appeal for the University succeeds. His order for admission is set aside. 10. Arunava Das : The appeal of the University succeeds and the order for admission is set aside for the additional reason that the writ itself has been withdrawn as we were informed by the University. Like some other points we have indicated, this also, with respect, is a matter of surprise, as to how withdrawn writs were meeting with success, unless those were withdrawn subsequent to the hearing of judgment. 11. Ananda Kr. Mondal : Dr. Mondal crossed the last qualifying marks with the grant of marks by the Vice-Chancellor's expert. He was provisionally ordered to be admitted. There was no appeal therefrom. Dr. Mondal has read for about two years and the appeal as against him preferred by, the University is dismissed. Nobody argued to defend the appeal as against his final order for admission; but that is irrelevant in view of our having entered into the facts in a generally detailed way. 12. Nirmal Kanti Saha : The University's appeal succeeds and the order for admission is set aside. Like Dr. Kundu's appeal, no separate paper book was filed in this case either. I am, with respect, unable to uphold or appreciate the grant of six vital marks in the learned Judge's third column in the Court below. 13. Gargi Banerjee : We were told that Dr. Banerjee has already been otherwise admitted; that admission, if any, shall continue undisturbed by our decision in these appeals. However, the University's appeal succeeds as against Dr. Banerjee and the order for admission granted in the Court below must be set aside. Nobody appeared to defend the appeal against Dr. Banerjee's order for admission. 14. Nikhilendu Mahapatra : This case is exactly identical to the case of Dr. Gulgulia. Dr. However, the University's appeal succeeds as against Dr. Banerjee and the order for admission granted in the Court below must be set aside. Nobody appeared to defend the appeal against Dr. Banerjee's order for admission. 14. Nikhilendu Mahapatra : This case is exactly identical to the case of Dr. Gulgulia. Dr. Mahapatra also equaled the marks of the last qualifying candidate on the basis or the Vice-Chancellor's expert's marking. For the same reasons as given in the case of Dr. Gulgulia, the appeal of the University as against Dr. Mahapatra fails. 15. Mihir Kumar Sarkar : Mr. Arun Prakash Chatterjee argued the case of Dr. Sarkar. Dr. Sarkar exceeded the last qualifying marks on the basis of the report of the Vice-Chancellor's expert. But Dr. Sarkar did not get any provisional admission; no order happened to have been passed in his favour at the appropriate time. We set aside the order for admission granted in favour of Dr. Sarkar inter alia because there is no way to establish that the last qualifying marks would also not have gone up like the marks of Dr. Sarkar had all candidates' papers been also examined by the Vice-Chancellor's expert. If Dr. Sarkar has already read for the DMO course, being otherwise admitted thereto, than through interference of court, the same will naturally not be in any way affected or be liable to be disturbed by our decision in these appeals. M. S. (Opthalmology) 1. Chittaranjan Shaw : The University’s appeal succeeds. The order for admission is set aside. 2. Subrata Guha Thakurta : Same order as in the case of Dr. Shaw. Dr. Guha Thakurta's case was also not argued for the respondent doctor by anybody. 3. Abhrajit Chatterjee : The University's appeal succeeds. The case was also not argued for Dr. Chatterjee by anybody. In this case like the previous one, the third column marks must give way. 4. Gautam Kanti Adak : The University's appeal succeeds. The order for admission is set aside though Mr. Chakraborty tried his best to save his client along with all the others, like Dr. Shaw. M. D. (Paedietrics) 1. Nikhileshwar Khawas : None argued for Dr. Khawas but Dr. Khawas was provisionally admitted having crossed the last qualifying marks with the added marks of the Vice-Chancellor’s expert. The order for admission of Dr. Chakraborty tried his best to save his client along with all the others, like Dr. Shaw. M. D. (Paedietrics) 1. Nikhileshwar Khawas : None argued for Dr. Khawas but Dr. Khawas was provisionally admitted having crossed the last qualifying marks with the added marks of the Vice-Chancellor’s expert. The order for admission of Dr. Khawas must stand, and the University’s appeal preferred from the order for final admission must fail with regard to Dr. Khawas. Diploma in Cardiology 1. Atindra Nath Bagchi : The appeal of the University must fail for the same reason as in the case of Dr. Khawas. We might only mention that the University once stated, that the diploma in Cardiology has been derecognised by the Medical Council. We are however not concerned with that matter now. M. S. (Orthopaedics) 1. Satchidananda Chatterjee : The University’s appeal succeeds. The order for admission is set aside. 2. Jayanta Bhattacharjee : Same Order as in the case of Satchidananda Chatterjee. 111. Subject to the clarifications above, all the writs are dismissed and the two orders of the Court below dated 14.4.91 and 23.4.91 are set aside, along with all orders for admission contained therein, excepting for the orders for admission passed in favour of, and the writs filed by Doctors Bijoy Kumar Gulgulia, Debdatta Ghosh, Pulak Kumar Saha, Ananda Kumar Mondal, Nikhilendu Mahapatra, Nikhileshwar Khawas and Atindra Nath Bagchi. No order as to costs. (Mentioned) Let xerox copies of this judgment be given to the learned Advocates for the parties on the usual terms.