JUDGMENT Arun Kumar Goel, J.—Before dealing with the contentions and pleas urged on behalf of the parties at the time of hearing of this appeal, admitted facts regarding which parties were not at variance need to be noted. 2. Appellant, hereinafter referred to as the plaintiff, appeared in the entrance examination of MBBS course during 1984-85 session. This entrance examination was known as Pre Medical Test. It was held in the month of August and September, 1984. Plaintiff obtained 221 marks. She alongwith a number of other candidates filed CWP No. 514 of 1984. All the petitioners in this petition challenged their non selection as well as the selection of respondents No. 5 to 51 on a number of grounds. 3. For the purposes of present appeal relevant ground is that the answers given in the key answers on the basis of which answer sheets were marked were demonstrably wrong. In this behalf it may also be appropriately observed that questions were in the nature of multiple choice questions. To each question there were four answers. Candidate was required to mark the correct answer. Thereafter on the basis of the key-answers provided by the paper-setter(s), answer sheets were assessed by the defendant No. 1 University. 4. Entire case file of CWP No. 514 of 1984 was placed in evidence as Ex. P-9 and was referred to by the learned Counsel for the parties who appeared at the time of hearing of this appeal besides other documents on file. 5. During the pendency of the writ petition No. 514 of 1984, vide order dated 1.6.1987, names of respondents No. 5 to 51 were ordered to be deleted and, in our opinion, rightly because by that time these respondents had completed three years of their academic studies having joined the MBBS course during 1984-85 session. 6. On 9th June, 1987 in this writ petition, following order was passed: "In this writ petition, the only ground of attack which is being pressed on behalf of the petitioner is that key answers of question Nos. 2, 7,10, 42, 64, 80, 84 and 94 of the Biology paper are demonstrably wrong. By the consent of parties, the Court passes the following order : (1) The Court has selected 3 Professors of Botany and 3 Professors of Zoology in order of preference. 2, 7,10, 42, 64, 80, 84 and 94 of the Biology paper are demonstrably wrong. By the consent of parties, the Court passes the following order : (1) The Court has selected 3 Professors of Botany and 3 Professors of Zoology in order of preference. A list containing the names of the above mentioned Professors has been placed in a sealed cover under the signatures of the Private Secretary attached to this Court. This envelop will be handed over to Shri Bhawani Singh, learned Counsel for Himachal Pradesh University for being handed over in turn personally to the Vice Chancellor. The Vice Chancellor will contact and inform the Professor of Botany indicated at Sr. No. 1 and similarly the Professor of Zoology indicated at Sr. No. 1 to ascertain and certify whether the key answer(s) of any one or more of the questions indicated above is (are) demonstrably wrong, that is to say, such as no reasonable body of men well versed in the particular subject would regard as correct. The Vice Chancellor would also ensure that the material (compilation of the questions to be considered by the Examiner Annexure P-2/ 1=19 pages, extract from the various text books in support of Annexure P-l/1 = 42 pages and the petitioners reasons by way of reply of Prof. R.P. Roys opinion = 5 pages) made available to Mr. Bhawani Singh, learned Counsel for Himachal Pradesh University by Mr. K.D. Sood, learned Counsel for the petitioner along with the question paper, original key answers and the reasons adduced by the Examiner in support of the accuracy of those answers are made available to the Professor concerned who would take the same into consideration along with such other material as they may themselves like to do. (2) In Case the professor indicated at Sr. No. 1 is not available, or declines to take up the assignment, the Vice Chancellor would entrust the above-mentioned work to Professor at Sr. No. 2, with respect to the questions pertaining to his subject and so on. (3) If the Professors, after checking, come to the conclusion that any one or more of the key answers are demonstrably wrong, they will further ascertain and certify whether any of the alternative key answer of such question is the correct answer. If not, they will indicate the correct answer. (3) If the Professors, after checking, come to the conclusion that any one or more of the key answers are demonstrably wrong, they will further ascertain and certify whether any of the alternative key answer of such question is the correct answer. If not, they will indicate the correct answer. (4) The Professors will submit their reports to the Court through the Vice Chancellor in a sealed cover within a period of 15 days from the date of communication by the Himachal Pradesh University (5) Upon receipt of the report of the Professor, the question papers of the petitioner will be re-examined in light of such reports, if any one or more of the key answer is found to be demonstrably wrong. (6) The Court will consider the grant of appropriate relief to the petitioner in light of such re-evaluation, if any, subject, however, to the condition that the admission already granted will not be disturbed. (7) The parties have agreed to abide by the result of the re-evaluation, if any, undertaken on the strength of the directions given above. (8) Remuneration payable to the professors will be determined by the Himachal Pradesh University in accordance with its rules/ regulations/instructions on the subject. An ordinary copy of this order, duly authenticated by the Deputy Registrar (Judicial), be furnished to the learned Counsel for Himachal Pradesh University during the course of the day today. Let the case be now listed before the Court on July 8, 1987." 7. After receipt of the report of professors in terms of order dated 9th June, 1987 supra, court observed that after having glanced through the reports, it appeared that petitioner is liable to be awarded more marks. This was followed by an order dated 21st July, 1987. This order is also reproduced hereinbelow:— “The facts which are relevant for the purposes of this interim order are that petitioner Keeran Malhotra (and five others who are stated to be no longer interested in the petition) had challenged the correctness of the result declared for admission to the non-graduate MBBS Course for the year 1984-85 of Indira Gandhi Medical College, Shimla through a writ petition inter-alia on the ground that the key answers to as many as 9 questions of Biology paper were demonstrably wrong. This led to the passing of the following order on June 9, 1987 by the consent of the parties:— "In this writ petition, the only ground of attack which is being pressed on behalf of the petitioner is that key answers of question Nos. 2, 7, 10, 42, 64, 80, 84 and 94 of the Biology paper are demonstrably wrong. By the consent of parties, the Court passes the following order:— (1) The Court has selected 3 Professors of Botany and 3 Professors of Zoology in order of preference. A list containing the names of the above mentioned Professors has been placed in a sealed cover under the signatures of the Private Secretary attached to this Court. This envelop will be handed over to Shri Bhawani Singh, learned Counsel for Himachal Pradesh University for being handed over in turn personally to the Vice Chancellor. The Vice Chancellor will contact and inform the Professor of Botany indicated at Sr. No. 1 and similarly the Professor of Zoology indicated at Sr. No. 1 to ascertain and certify whether the key answer(s) of any one or more of the questions indicated above is (are) demonstrably wrong, that is to say, such as no reasonable body of men well versed in the particular subject would regard as correct. The Vice Chancellor would also ensure that the material (compilation of the questions to be considered by the Examiner Annexure P-2/ 1=19 pages, extract from the various text books in support of Annexure P-l/l=42 pages and the petitioners reasons by way of reply of Prof. R.P. Roys opinion = 5 pages) made available to Mr. Bhawani Singh, learned Counsel for Himachal Pradesh University by Mr. K.D. Sood, learned Counsel for the petitioner along with the question paper, original key answers and the reasons adduced by the Examiner in support of the accuracy of those answers are made available to the Professor concerned who would take the same into consideration alogn with such other material as they may themselves like to do. (2) In case the Professor indicated at Sr. No. 1 is not available, or declines to take up the assignment, the Vice Chancellor would entrust the above mentioned work to Professor at Sr. No. 2, with respect to the questions pertaining to his subject and so on. (2) In case the Professor indicated at Sr. No. 1 is not available, or declines to take up the assignment, the Vice Chancellor would entrust the above mentioned work to Professor at Sr. No. 2, with respect to the questions pertaining to his subject and so on. (3) If the Professors, after checking, come to the conclusion that any one or more of the key answers are demonstrably wrong, they will further ascertain and certify whether any of the alternative key answer of such question is the correct answer. If not, they will indicate the correct answer. (4) The Professors will submit their reports to the court through the Vice Chancellor in a sealed cover within a period of 15 days from the date of communication by the Himachal Pradesh University (5) Upon receipt of the report of the Professor, the question papers of the petitioner will be re-examined in light of such reports, if any one or more of the key answer is ifound to be demonstrably wrong. > (6) The Court will consider the grant of apprbpriate relief to the petitioner in light of such re-evaluation, if any, subject, however, to the condition that the admission already granted will not be disturbed. / (7) The parties have agreed to abide by the result of the re-evaluation, if any, undertaken on the strength of the directions given above. (8) Remuneration payable to the Professors will be determined by the Himachal Pradesh University in accordance with its rules/ regulations/instructions on the subject. “ The reports of the Professors given in terms of the above order were received and perused. The petitioner is likely to be awarded 7 more marks taking her total to 228 marks whereas the marks of the last candidate who got admission during the 1984-85 Court were 224 (according to Mr. Dharam Chand, Advocate, appearing vice Mr. Bhawani Singh, learned Counsel for Himachal Pradesh Univesity) and 223 (according to Mr. K.D. Sood, learned Counsel for the petitioner). The petitioner has moved the present CMP on the above facts praying that she should be allowed provisional admission in the 1987-88 Course and it has been further submitted by Mr. K.D. Sood that the Course is likely to start on 28th of this month. K.D. Sood, learned Counsel for the petitioner). The petitioner has moved the present CMP on the above facts praying that she should be allowed provisional admission in the 1987-88 Course and it has been further submitted by Mr. K.D. Sood that the Course is likely to start on 28th of this month. In the reply to this petition filed on behalf of the Himachal Pradesh University, it appears that the answer books of all those candidates who had secured more marks than the petitioner Keeran Malhotra but who had also not been successful in getting admission were got re-evaluated in the light of the revised key answers. In this manner, there are as many as 6 candidates who, according to the aforesaid reply, find places above the petitioner in order of merit. It has, therefore, been contended by Mr. Dharam Chand that the petitioner in any case would not be entitled to relief. This argument is without any force for the simple reason that the grievance of the petitioner is not qua the candidates who have thus secured more marks on re-evaluation. Her case is that the candidate who got admission during the Course 1984-85 secured 223/224 marks whereas she ought to have been awarded more marks than the said candidate and, therefore, declared successful for admission into 1984-85 Course. There can be no two opinions about the validity of the petitioners case as stated above. The cases of the other candidates who according to the Himachal Pradesh University ought to have been awarded more marks than the petitioner on the basis of the revised key answers are not before this Court but there can be no objection, so far as this Court is concerned, if the competent authorities, want to afford any relief to them as well. There is, however, no justification at all to find fault in the petitioners case on that score. Therefore, in modification of the Courts order made on July 16, 1987, directing the Medical College, Shimla to keep vacant one seat till further orders, keeping in view the fact that the studies for 1987-88 course are going to commence on or about July 28, 1987, the following directions are issued:— "1. Petitioner Keeran Malhotra will be granted provisional admission in the current academic session 1987-88 in the Indira Gandhi Medical College, Shimla. Petitioner Keeran Malhotra will be granted provisional admission in the current academic session 1987-88 in the Indira Gandhi Medical College, Shimla. This admission, however, will be subject to the final result of this writ petition; and 2. The aforesaid admission will be against a seat which will be in addition to the normal number of seats available in the 1987-88 Course. Mr. P.A. Sharma, learned Counsel for the Medical Council of India, New Delhi, is allowed three weeks time to obtain instructions and file reply after which the case be listed before the Court on August 17, 1987." Dasti copy on usual terms." 8. Finally this order passed in CWP (supra), was confirmed vide judgment of the Court dated 18th August, 1987. Operative portion of this judgment is as under:— “4. In view of the above findings, this writ petition is accepted and the order dated July 21, 1987 is made absolute and the respondents are directed to admit the petitioner, Keeran Malhotra in the current academic session 1987-88 in Indira Gandhi Medical College, Shimla, by way of increasing the total number of seats by one. In the circumstances of the case, the parties are left to bear their own costs." 9. In the aforesaid background appellant, hereinafter referred to as the plaintiff, filed a suit in forma paupris before this Court being RA. 1 of 1989. This was later on registered as Civil Suit No. 79 of 1990 after she was permitted to sue as such. However, during the pendency of this suit she affixed requisite court fee on the plaint. 10. Claim of the plaintiff in this suit was that because of negligence on the part of the defendants, her three years were wasted. Key answers were demonstrably wrong and her admission was delayed, from 1984-85 session to 1987-88 session by creation of an additional seat, that too under the orders of this Court in CWP No. 514 of 1984 supra. Because of non preparation of correct merit list and because of wrong insistence on the part of the defendants that their action was correct, she was forced to first undergo to study B.Sc, and thereafter four semesters of law. She had to do so per force of circumstances, which were the creation of the defendants. Her brother, N.K. Malhotra paid for her this education and spent about 70-80 thousand rupees. She had to do so per force of circumstances, which were the creation of the defendants. Her brother, N.K. Malhotra paid for her this education and spent about 70-80 thousand rupees. In this background she claimed moderate amount of damages to the tune of Rs. 2.50 lacs as according to her she became doctor three years after her class-mates, who joined the course in 1984-85, and thus it resulted in her settling down in life late. Before filing the suit, a notice under Section 80 CPC was served upon both the defendants. As per reply of defendant No. 2, dated 9.1.1989, it denied the liability to pay damages/compensation. Interest at the rate of 12.5% per annum from the date of filing of the suit till realization was also claimed on the aforesaid amount. 11. Respondents, hereinafter referred to as defendants No. 1 and 2, when put to notice, contested and resisted claim of the plaintiff. While they admitted filing of CWP No. 514 of 1984 and the pleas set up by the petitioners therein, defendant No.1 pleaded that all possible care, precautions and prudence in the selection of experts of eminence, who had sufficient experience of paper setting in the subjects of physics, chemistry and biology was taken. Per this defendant in the prospectus of the relevant session, there was no provision of re-evaluation or rechecking. Because of her performance, name of plaintiff did not figure in the merit list of students admitted during this academic session. Thus there was no violation of any provision of University Act, Statute or Ordinance etc. Plaintiff appeared at Sr. No. 12 in the waiting list having secured 221 marks whereas last admitted candidate had secured 224 marks. It was further admitted that on re-evaluation under the orders of this Court marks of the plaintiff increased. 12. An attempt was also made to deny claim of the plaintiff as set-up in the suit by pleading that she could not have been admitted because there were other candidates who had secured higher marks than her, and case of one Kashmir Singh, Roll No. 1553 was set up as a defence. Plaintiff could not have been admitted to the academic session 1987-88. Action of the defendants was pleaded to be legally valid and without any bad faith and all averments to the contrary were stated to be unfounded and unwarranted. Plaintiff could not have been admitted to the academic session 1987-88. Action of the defendants was pleaded to be legally valid and without any bad faith and all averments to the contrary were stated to be unfounded and unwarranted. Admission of the plaintiff having been delayed was also denied. In this background defendant No. 1 pleaded that there was no negligence on its part as claimed by the plaintiff. Thus she was not entitled to any relief. In this background it was submitted that suit merits dismissal. 13. Defendant No. 2 pleaded that plaintiff was studying in 3rd year MBBS course at Indira Gandhi Medical College, Shimla and as a student was dependent upon her parents and guardian. She was getting Rs. 200 per month as stipend on the basis of her merit as all the students are paid stipend/scholarship. It was admitted that plaintiff was admitted in first year MBBS course during July 1987, but no negligence could be attributed to State of Himachal Pradesh because she was admitted to the course in question under Courts order by creating one additional seat. In replication pleadings of the defendants which were contrary to facts pleaded in the plaint were denied and thus all the facts stated in the plaint were reiterated. 14. On 14.12.1990 following issues were framed by this Court:— 1. Whether the defendants and its officers were grossly negligent in setting wrong key answers and not preparing correct merit list in time as alleged? If so, can both the defendants be held liable in torts? OPR 2. In case issue No. 1 is decided in the affirmative, whether the plaintiff suffered mental agony, pain and suffering as also pecuniary loss on account of the acts of the defendants? If so, to what effect? OPP. 3. Whether the plaintiff is entitled to damages/compensation? If so to what extent and from whom? OPP. 4. Relief. 15. With the issuance of Notification No. HHC/Admn. 6(24)74-11 dated 21st February, 1995 this suit was transferred from the file of this court to the learned District Judge, Shimla for disposal in accordance with law. 16. Plaintiff as well as her brother appeared in support of their case and Mr. K.R Dogra, Deputy Registrar, (Examination) appeared on behalf of defendant No. 1. 6(24)74-11 dated 21st February, 1995 this suit was transferred from the file of this court to the learned District Judge, Shimla for disposal in accordance with law. 16. Plaintiff as well as her brother appeared in support of their case and Mr. K.R Dogra, Deputy Registrar, (Examination) appeared on behalf of defendant No. 1. Trial Court after conclusion of the trial examination of record and after hearing the parties has dismissed the suit of the plaintiff, hence this appeal. 17. Mr. Sood, learned Counsel for the plaintiff> submitted that Chapter XIV of the Himachal Pradesh University Hand Book, Volume-I 1993 Edition, deals with faculty of Medical Science, Bachelor of Medicines and Bachelor of Surgery. This is the course with which plaintiff is concerned in this appeal. According to him there is no prohibition and/or exclusion for re-evaluation of the answer sheets in the entrance test to MBBS Course. He further submitted that trial court had gone wrong in recording findings on issues No. 1 and 2 against the plaintiff and as a fall out of it having dismissed her suit. Regarding negligence part, Mr. Sood submitted that this is not the first time that such situation has crept in the working of respondent-University where they should be permitted to say that there was no negligence. 18. By referring to earlier decisions of this court wherein answers were shown to be demonstrably wrong and after the answer sheets were got re-evaluated under this Courts orders, number of students were admitted on the basis of their merit position undergoing change. He further pointed out that plaintiff at the very outset approached this Court making grievance against the defendants. In these circumstances Mr. Sood urged that degree of duty coupled with power was higher, that was cast on defendant No. 1. Thus, he prayed for reversing the judgment and decree of the trial Court. He further pointed out that trial court had fallen into error by ignoring the orders passed by this Court during the course of proceedings in CWP No. 514 of 1984 while dismissing the suit. 19. All these pleas have been controverted by the learned Senior Counsel appearing for defendant No. 1, who stated that there is nothing wrong with the judgment and decree of the trial court and those need to be upheld. 19. All these pleas have been controverted by the learned Senior Counsel appearing for defendant No. 1, who stated that there is nothing wrong with the judgment and decree of the trial court and those need to be upheld. He further pointed out that his clients did not violate any of the provisions of prospectus, subject to which plaintiff had undertaken entrance examination during the relevant session. According to him if his client had deviated from the prospectus, plaintiff could have made a grievance. Despite there being no provision either for re-checking and re-evaluation, the court allowed it. While doing so, the court did not hold this condition to be void or ultra vires while deciding CWP No. 514 of 1984. 20. By referring to Exts. D-3 to D-5, he urged that University did all what was within its power by engaging people of eminence in their respective fields as paper setters. Thus the plaintiff was not entitled to any relief whatsoever in this appeal. Referring to the reliefs claimed in the writ petition he has urged that the plaintiff had given up all other reliefs except the relief of her admission to the course. No negligence of duty on the part of defendant No. 1 is also covered as a ground for upholding the impugned decree. With a view to contest claim of negligence set-up by the plaintiff, Mr. Mittal urged that there was nothing to establish the failure on the part of his client to carry out any duty caste upon the University. University did everything which a reasonable and prudent man would do. So far examiners were concerned, Mr. Mittal pleaded that University had no control over them, therefore, he submitted that this appeal deserves to be dismissed with costs. 21. Learned Additional Advocate General pointed out that defendant No. 2 had no role in the matter of setting up of the question papers as well as in the marking of those answer sheets. This job is entrusted to the expert body, i.e. defendant No. 1. He, however, submitted that dismissal of the suit needs to be upheld. 22. 21. Learned Additional Advocate General pointed out that defendant No. 2 had no role in the matter of setting up of the question papers as well as in the marking of those answer sheets. This job is entrusted to the expert body, i.e. defendant No. 1. He, however, submitted that dismissal of the suit needs to be upheld. 22. After having considered the respective submissions of learned Counsel for the parties and the record of suit, the core question in this appeal is whether the University was careful and cautious in its action in the matter relating to setting up of the question papers and its key answers or not; and whether in the circumstances of this case negligence can by inferred or taken to have been established or not? 23. In this context plea put up by Mr. Sood with reference to the earlier decisions of this court assumes significance. In all these cases in the prospectus of the concerned academic year there was no provision for re-evaluation/ rechecking. Despite that when this court on the basis of the various text books was satisfied that the key answers were demonstrably wrong, it intervened, thereafter answer sheets were got re-evaluated and students admitted. With this background, the degree of care and caution required of the University was much higher and greater, which in our considered view was lacking in the present case. We shall refer to some of the decided cases by this court prior to 1984-85 as well as subsequent academic sessions. 24. In CWP 237 of 1981, Kapil Sharma and others v. H.P. University, after having got the answer sheets re-evaluated the provisional admission of petitioner No. 2 was regularised. 25. In Rahul Verma and another v. The Himachal Pradesh University and others, 1983 SLC 45, while dealing with the contention of the petitioner that the marks were not properly awarded, on examination of the whole matter found, that he was entitled to one more mark and thus he was entitled to be admitted subject to other rules like physical fitness etc. and his petition was allowed by holding as under:— "38. Mr. Anjani Kumar who had set the question paper in Biology for the Pre-Medical Test, 1982, was questioned by us with regard to the questions. Question No. 60 reads: "Portugese-man-of war is known as". Then followed four alternatives. and his petition was allowed by holding as under:— "38. Mr. Anjani Kumar who had set the question paper in Biology for the Pre-Medical Test, 1982, was questioned by us with regard to the questions. Question No. 60 reads: "Portugese-man-of war is known as". Then followed four alternatives. A candidate was required to tick the correct alternative. One of the alternatives given was "Sea anemone". Rahul Verma, petitioner in Civil Writ Petition No. 201 of 1982, while answering this question gave a note "none of the above answers is correct" and the correct answer was "Physalia member of Coclentrata" Mr. Anjani Kumar agree that indeed Physalia was the word by which the Portugese-man- of war was known and that sea anomone is the group of animals under which it falls. He stated that his intention was to find out the group of animals. It was pointed out to him that the question required a candidate to give the name by which it was known and not to specify the group of the animals in which it fell. He readily agreed that it would have been better if he had asked an out the group of animals. We, therefore, find that Rahul Verma petitioner was justified in understanding the question as it was put and answering it correctly. He was, therefore, entitled to one mark more. This will take his total of marks to 187." "40. Now Ved Kumar petitioner on re-checking of that total of the marks, had to be awarded one more mark taking his total marks to 187. This tie between him and Rahul Verma is to be broken in terms of the following para 5 of the TProspectus: "Merit shall be determined on the basis of aggregate number of marks obtained by the candidates and a merit list shall be prepared by the Controller of Examination. The inter-se-ranking of the candidates obtaining equal aggregate marks in the competitive examination shall be according to the aggregate marks obtained by the candidates in Physics, Chemistry and Biology qualifying examination/ Comparison of aggregate marks in Physics, Chemistry and Biology of the qualifying examination shows that Rahul Verma petitioner gets more marks and so he is entitled to be selected/ "50. The result is that except the petition of Rahul Verma (one of the petitioners in Civil Writ Petition No. 201 of 1982) all other writ petitions fail and are dismissed/ "51. Before parting with these petitions we must observe that whereas under para-V- "Details of competitive test/examination" on page 4 of the prospectus it is stated : "The merit list indicating marks in respect of all the candidates appearing in the Pre-Medical Test will be declared and displayed on the Notice Board by the University" (emphasis supplied), we find that the University for reasons best known to it did not display the merit list in respect of all the candidates. The result was that a candidate whose name and marks had not been displayed on the notice board did not known where he stood and when this chance could come if anyone who was nominated by the University for admission failed to take advantage. If this list was displayed, each candidate would have known where he stood in the merit list. In our opinion it is the duty of the University to display such a list on its notice board and we hope that in future it will be duly displayed." "52. Another fact which we must highlight is this. This University does not allow any candidate to even have his totalling of marks re-checked. In as many as three cases we have found that the totalling of the marks was not correct. In one case, which we have earlier decided, the candidate achieved quite a higher position in the merit list. It will be better if the University can make some provision so that no candidate suffers on this account." 26. In Kanpur University, through Vice Chancellor and others v. Samir Gupta and others and connected matter, (1983) 4 SCC 309, after examining the matter relating to wrong key answers, Honble Supreme Court held as under:— "1. These appeals raise a somewhat awkward question: If a paper-setter commits an error while indicating the correct answer to a question set by him, can the students who answer that question correctly be failed for the reason that though their answer is correct, it does not accord with the answer supplied by the paper-setter to the University as the correct answer? The answer which the paper-setter supplies to the University as the correct answer is called the key answer. The answer which the paper-setter supplies to the University as the correct answer is called the key answer. No one can accuse the teacher of not knowing the correct answer to the question set by him. But it seems that, occasionally, not enough care is taken by the teachers to set questions which are free from ambiguity and to supply key answers which are correct beyond reasonable controversy. The keys supplied by the paper-setters in these cases raised more questions than they solved." "2. The respondents in these appeals applied for admission to the medical colleges in the State of Uttar Pradesh. There are 7 medical colleges in the State of H.P., to which admission is granted on the basis of the result of a Combined Pre-Medical Test which is held in pursuance of the orders passed by the State Government under Section 28 of the U.P. State Universities Act, 1973. The Government nominates one of the Universities in the State for holding the Test every year. In the year 1982, the Kanpur University, the appellant herein, was entrusted with the task of holding the Test. By any standard, it is a stupendous task because, 20,000 applications are received every year for admission to a total number of 779 seats in the 7 medical colleges, out of which 50 per cent are reserved seats and the remaining 50 per cent are open. Physics, Chemistry, Zoology and Botany are the four subjects which are prescribed for the Test. One paper is set for each subject and the pattern of the examination is what is called the multiple choice objective-type test. For persons belonging to yester generations, thisus a new-fangled concept. Hundred questions are set in each paper and four alternative answers are indicated against each question. The candidates are required to tick the correct answer from out of those four. If he ticks the correct answer, he secures 3 marks and if a candidate ticks an incorrect answer, he loses 1 mark. Each paper is of a duration of 3 hours." "3. So far so good. The snag lies in determining which out of four suggested answers is the correct answer. That duty is naturally assigned to the paper-setter, who is required to supply to the University the correct answer to each question, called the key answer. Each paper is of a duration of 3 hours." "3. So far so good. The snag lies in determining which out of four suggested answers is the correct answer. That duty is naturally assigned to the paper-setter, who is required to supply to the University the correct answer to each question, called the key answer. The difficulty involved in the evaluating a very large number of answer-books is solved by the State Government, quite successfully, by computerising the result. The key answers are fed into a computer and the marking computerised." "4. The difficulty which arose in these cases is not due to the failure of the computer, which is quite encouraging. The habit of man is to blame the machine. The difficulty arose because the key answers furnished by the paper-setters turned out to be wrong. The students to know the key answers out of the generosity of the University. It wanted, rightly, to be frank and fair. Therefore, it published the key answers alongwith the result of the Test. Respondents, whose names did not figure in the list of successful candidates, filed writ petitions in the High Court of Allahabad, contending that the answers ticked by them were correct and the key answers wrong. The High Court has accepted their contention and that is how the Kanpur University has come to file these appeals. There cannot be a more telling instance of Shishyat Ichhet Parajayam (Wish for defeat from your pupil). But the Gurus contend that the Shishyas are wrong and do not deserve to win." "15. The findings of the High Court raise a question of great importance to the student community. Normally, one would be inclined to the view, especially if one has been a paper-setter and an examiner, that the key answer furnished by the paper-setter and accepted by the University as correct, should not be allowed to be challenged. One way of achieving it is not to publish the key answer at all. If the University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. But that is not a correct way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional courses. If the University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. But that is not a correct way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students would have had to suffer the injustice in silence. The publication of the key answer has unravelled an unhappy state of affairs to which the University and the State Government must find a solution. Their sense of fairness in publishing the key answer has given them an opportunity to have a closer look at the system of examinations which they conduct. What has failed is not the computer but the human system." "16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a keyanswer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledge text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect." "17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance test for admission to the medical colleges in U.R Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong." "18. If the State Government wants to avoid a recurrence of such lapses, it should compile under its own auspices a text-book which should be prescribed for students desirous of appearing for the Combined Pre-Medical Test. Education has more than its fair share of politics, which is the bane of our Universities. Numerous problems are bound to arise in the compilation of such a text-book for, various applicants will come forward for doing the job and forces and counter-forces will wage a battle on the question as to who should be commissioned to do the work. If the State can succeed in over-Coming those difficulties, the argument will not be open to the students that the answer contained in the text-book which is prescribed for the Test is not the correct answer. Secondly, a system should be devised by the State Government for moderating the key answers furnished by the paper-setters. Thirdly, if English questions have to be translated into Hindi, it is not enough to appoint an expert in the Hindi language as a translator. The translator must know the meaning of the scientific terminology and the art of translation. Fourthly, in a system of multiple choice objective-type test, care must be taken to see that questions having an ambiguous import are not set in the papers. That kind of system of examination involves merely the tick-marking of the correct answer. It leaves no scope for reasoning or argument. The answer is yes or no. That is why the questions have to be clear and unequivocal. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it." "20. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it." "20. Twenty-seven students in all were concerned with these proceedings, out of whom 8 were admitted to the B.D.S. course,, 3 were admitted to the M.B.B.S. course last year itself in place of the students who dropped out and 5 have succeeded in getting admission this year. Omitting 8 of the respondents who have been already admitted to the M.B.B.S. course, the remaining 19 shall have to be given admission as directed by the High Court. If the key answer was not wrong as it has turned out to be, they would have succeeded in getting admission. In view of the findings of the High Court, the question naturally arose as to how the marks were to be allotted to the respondents for the three questions answered by them and which were wrongly assessed by the University The High Court has held that the respondents would be entitled to be given 3 marks for each of the questions correctly ticked by them, and in addition they would be entitled to 1 mark for those very questions, since 1 mark was deducted from their total for each of the questions wrongly answered by them. Putting it briefly, such of the respondents as are found to have attempted the three questions or any of them would be entitled to an addition of 4 marks per question. If the answer-books are reassessed in accordance with this formula, the respondents would be entitled to be admitted to the M.B.B.S. course, about which there is no dispute. Accordingly, we confirm the directions given by the High Court in regard to the reassessment of the particular questions and the admission of the respondents to the M.B.B.S. course." 27. In Anil Minhas and others v. H.P. University and others, 1986 SLC 268, while dealing with the matter relating to re-evaluation where key-answers were shown to be demonstrably wrong, orders were passed by this court from time to time. In Anil Minhas and others v. H.P. University and others, 1986 SLC 268, while dealing with the matter relating to re-evaluation where key-answers were shown to be demonstrably wrong, orders were passed by this court from time to time. On 30.10.1985 direction as under was given for re-evaluation:— (1) From amongst the University Professors, other than the Professors of the respondent University and these of the Universities in the States of Punjab, Haryana and Jammu and Kashmir, the Court will constitute three separate Committees of Experts, one each for the subjects of Chemistry, Physics and Biology, for the purposes of ascertaining and certifying whether the key answer(s) to any one or more of the objective-type question(s) in the concerned subject is (are) demonstrable wrong, that is to say, such as no reasonable body of men well versed in the particular subject would regard as correct. The petitioners and the respondent-University will be at liberty to suggest the names of Experts to be nominated on each of the Committees/ (2) The respondent-University will refer the question paper together with the key-answers in each of the subjects of Chemistry Physics and Biology to the concerned Committee of Experts for the aforesaid purposes. If the Committee comes to the conclusion that any one or more of the key answers is demonstrably wrong, it will also further ascertain and certify whether any of the alternative key-answer of such question is correct answer. If not, the committee will indicate the correct answer/7 (3) The Committees will submit their reports to the Court within a period of 15 days from the date of the communication by the respondent-University of their appointment as the Members of such Committees. (4) Upon receipt of the report of the Committees, the question papers of the petitioners will be re-examined in light of such reports, if any one or more of the key-answer(s) is found to be demonstrably wrong/ And finally after receipt of the report of the expert, following order was passed : "In view of the report submitted by the Committee of Experts pursuant to the interim order made on October 30, 1985, it becomes apparent that the petition survives only qua petitioner No. 8 (Kumari Taruna Nayyer) whom upon re-evaluation, has secured 218 marks, which are equivalent to the marks obtained by the last candidate admitted in the First Year MBBS Course in the academic Session 1985-86. The question of granting relief to the said petitioner, therefore, survives. In order that an equitable relief can be granted to her by directing that she be admitted in the first year MBBS Course in the academic session 1985-86, the presence of the Medical Council of India before the Court is essential since the question of increase of the sanction strength of seats may require consideration. Let notice issued to the Medical Council of India, New Delhi, returnable on December 31, 1985 to show cause why the court should not direct that one seat be increased in the First Year MBBS Course in the Indira Gandhi Medical College, Shimla, for the academic Session 1985-86. If no cause is shown by the Medical Council of India on or before the returnable date, the Court will presume that the Council has no objection to the increase of one seat and consequential orders will be made on the basis of such presumption. Service of the notice to be effected on the Secretary of the Medical Council of India. Dasti service permitted. The packet containing the notice to be handed over to the learned Counsel for the petitioners in the Course of the day today." 28. Similarly, in Asheesh Sharma and another v. Himachal Pradesh University and others and other connected cases, 1990(1) SLC 113, a Division Bench of this Court emphasised the need for publication of key answers and thereafter directed the University to disclose the key answer on the basis whereof answer sheets of the candidate had been evaluated in different subjects as under:— "38. We are, however, of opinion that the respondent-University is liable to be directed to disclose the key-answers on the basis whereof the answer sheets of the candidates have been evaluated in different subjects. We direct the Himachal Pradesh University to do so within a period of one week from today It will be open to the petitioners to seek appropriate remedy, by approaching the University, within a week of the publication of the key answers. We also observe that the State would make suitable alteration in the Prospectus, about the P.M.T. Test to be held in future, in regard to re-checking of the answer sheets for any mistakes in totalling and non-marking of any answer given by a candidate, bringing it in line with Ordinance 6.69, of the University." 29. We also observe that the State would make suitable alteration in the Prospectus, about the P.M.T. Test to be held in future, in regard to re-checking of the answer sheets for any mistakes in totalling and non-marking of any answer given by a candidate, bringing it in line with Ordinance 6.69, of the University." 29. Again in Nishant Singh Sipehia and Piyush Kaushal v. Regional Engineering College, Hamirpur, 2000 (2) SLC 83, a Division Bench of this Court held that in case of wrong key answers, those can be re-evaluated. This was exactly the situation in the suit out of which this appeal has arisen. And on the basis of the re-evaluation, plaintiff was ordered to be admitted in MBBS Course, as aforesaid. This order is final and conclusive between the parties, which was admitted at the time of hearing of this appeal. 30. Similarly in Rajan Yadav and Another v. Himachal Pradesh University and another, 2000 (3) SLC 27, on re-evaluation of the answer sheets this Court held as under, when key answers were demonstrably wrong:— "36. In the instant case, it is not disputed that as per the text book prescribed by the University and published by NCERT, correct answer is antennae (option b) and not receptors (option c). The petitioners have given answer on the basis of the said book. This court in Miss Ruchika Verma has held that when key answers were prepared from a book prescribed by NCERT, the University was right in doing so and it was not open to the petitioners to justify options given by them by relying on other books." "37. Applying the ratio of two decisions of the Supreme Court in Samir Gupta and Abhijit Sen and in Miss Ruchika Verma of this Court, in our considered opinion, the argument advanced on behalf of the petitioners deserves to be accepted by holding that when they have given option b antennae as per the text-book prescribed by the University and published by NCERT, they are entitled to one mark for such answer and it was incumbent on the University to give one mark to each of the petitioners/7 "38. For the foregoing reasons, the petition deserves to be allowed and is, accordingly allowed. For the foregoing reasons, the petition deserves to be allowed and is, accordingly allowed. The respondent-University is directed to give one mark to each of the petitioners for giving correct answer of question No. 39 in the subject of Biology and to prepare merit-list of Combined Pre-Medical Entrance Test afresh. It is also directed that if on the basis of such merit-list, the petitioners are entitled to get admission to MBBS/BDS course, the University will take appropriate consequential action in accordance with law. The petition is, accordingly, allowed to the extent indicated above. In the facts and circumstances of the case, however, there will be no order as to costs." 31. Again to similar effect is the decision of this Court in CWP 980 of 2001, Pradeep Kumar v. H.P. University and others, and other connected cases, wherein on 4.12.2001, it was held as under:— "For the reasons aforesaid, the petitions deserve to be partly allowed. For question No. 60, both the responses A as suggested by the paper-setter and recorded in first key answer and C as suggested by the first as well as Second Committee are held to be correct. On all other questions, the action taken by the University on the basis of report of the expert Committees cannot be termed as illegal or contrary to law. The respondent-University is directed to prepare merit list of Combined Pre-Medical Entrance Test afresh keeping in mind the directions issued and observations made hereinabove. All consequential actions will be taken on the basis of such fresh merit list. Petitions are partly allowed to the extent indicated above. In the facts and circumstances, there will be no order as to costs." 32. In this background plea of the University that- there was no lack of adequate care and due caution cannot be accepted. As an expert body, it was for the University to have ensured that the mistakes noticed in the previous years (prior to 1984-85 Session), were not repeated. Because admittedly this was not for the first time when the omission was noted. Particularly in the face of the decisions prior to 1984, referred to herein above. Thus negligence can be safely inferred on the part of the University There is nothing to the contrary in the statement of DW-1 in that behalf. Thus no benefit can be derived from Exts. D-3 to D-5 relied upon by Shri Mittal. Particularly in the face of the decisions prior to 1984, referred to herein above. Thus negligence can be safely inferred on the part of the University There is nothing to the contrary in the statement of DW-1 in that behalf. Thus no benefit can be derived from Exts. D-3 to D-5 relied upon by Shri Mittal. Another reason to take this view is the decisions of this Court subsequent lo 1984-85 till date (supra). 33. Here argument of Mr. Sood that the degree of power coupled with duty is also noteworthy. In our view this has merit and substance. Because what was extent of check and counter check adopted by the defendant No. 1 University to ensure that not only the papers are properly set and checked, but the key answers are also correct. Degree of duty was much higher for the reasons given in the preceding para. No legal evidence to that effect is there on record produced by the University during trial that it took all requisite precautions before holding of examiantion of the session of 1984-85. Statement of DW examined by it also does not advance the case of defendant No. 1 in any manner. He has tried to show that after the CWP 514 of 1984 was filed, matter was referred to paper setters vide Exts. R-3 to R-5. Their replies are Exts. R-6 to R-8. This resulted in reduction of marks of the plaintiff from 221 to 220. However, on the basis of available record of University, he admitted that the marks of the plaintiff increased to 226, after her papers were re-evaluated under the orders of this Court. 34. This re-assessment was not disputed by the University either in CWP 514 of 1984 or in this appeal and in our opinion rightly so, because the key-answers were not correct. Otherwise there was no reason to have not objected to the increase of marks in the case of the plaintiff after re-evaluation and her answer sheets. Similarly either prior to 1984-85 or subsequent to it, legality of the orders of this court ordering re-evaluation of answer sheets (despite there being no provision to that effect in the prospectus) was also never questioned before any court of competent jurisdiction. 35. Here plea of Mr. Similarly either prior to 1984-85 or subsequent to it, legality of the orders of this court ordering re-evaluation of answer sheets (despite there being no provision to that effect in the prospectus) was also never questioned before any court of competent jurisdiction. 35. Here plea of Mr. Mittal that plaintiff will only be entitled to compensation if she could show that the act of setting papers was a fortuitous act tainted with negligence also fails in view of what has been observed hereinabove. We may also observe that had the petitioners not come to court in CWP 584 of 1984, the matter would have remained in dumps. 36. Mr. Mittal also urged that the petitioner could not have been admitted as her admission was contrary to the decision of the Honble Supreme Court of India in the case reproted in Punjab Engineering College, Chandigarh through its Principal v. Sanjay Gulati and others arid other connected cases, 1983 (3) SCC 517. Thus, her admission being contrary to law of the land, plaintiff has no right to maintain the suit. 37. This plea has been raised simply to be rejected. Reason being that in case defendant No. 1 was serious, it would have immediately challenged the decision of this Court dated June 9, 1997 before the competent Court when provisional admission was allowed to the petitioner. No challenge was admittedly made to this order and in our opinion rightly because it was an order passed with the consent of the parties. 38. Other reason to hold so is, that again defendant had an opportunity to have challenged the order passed on 18th August, 1987, operative portion whereof had been extracted hereinabove. Last but not the least the decision in CWP No. 514 of 1984 has admittedly attained finality between the parties; besides having been implemented long ago by both the defendants to the suit. Above all the decision of this Court in CWP 514 of 1984 cannot be said to be void in any circumstances. Thus defendant No. 1 is precluded from raising such a plea. So on all these counts argument of defendant No. 1, that the admission of the plaintiff was contrary to the decision of the Supreme Court is not available to the said defendant, hence rejected. Thus defendant No. 1 is precluded from raising such a plea. So on all these counts argument of defendant No. 1, that the admission of the plaintiff was contrary to the decision of the Supreme Court is not available to the said defendant, hence rejected. As already noted in the instant case not once, but on a number of earlier occasions to the academic session 1984-85, University was made aware that it needs to take more care and caution in the matter of setting-up of papers regarding entrance test when students were admitted after the court was satisfied that the key answrers were demonstrably wrong. Despite that nothing much seems to have been done, atleast no evidence in that behalf has been produced. Claim of the plaintiff that she has become junior by three years to the candidates who were admitted in 1984-85 session cannot be ignored, particularly when her claim for admission was upheld on re-evaluation. 39. With a view to defeat her claim in the suit, an attempt was made by pleading that she could not have been admitted because there were students with higher merit as compared to her. None of them was aggrieved or has approached the court on being not admitted to the course in question or by admission of the plaintiff. In the facts and circumstances of the case, stress and strain, as well as trauma through which petitioner under-went during three years, when she was not admitted to the course in question as also her having been made to join B.Sc. as well as law course cannot be lost sight of. That being the position, findings of trial court on issues No. 1 to 3 cannot be upheld. As such the plaintiff did suffer loss on her becoming junior by three years to the students who were admitted in the academic session 1984-85 because of key answers being demonstrably wrong. 40. On an over-all examination of the whole situation as well as facts of this case, we are satisfied that there was definite negligence on the part of the University as noted in the preceding paras. 41. 40. On an over-all examination of the whole situation as well as facts of this case, we are satisfied that there was definite negligence on the part of the University as noted in the preceding paras. 41. By recording finding on issues No. 1 and 2 learned trial Court had gravely erred and in fact had sat over the decision of this Court which it had no jurisdiction to do particularly, when defendnat No. 1 had accepted the interim, as well as final orders, referred to hereinabove. Once this conclusion is arrived at, then on the basis of evidence on record, we further hold that the plaintiff is entitled to damages, as claimed in the suit. Her statement as well as that of her brother have remained uncontroverted. So far statement of DW-1 is concerned, it does not in any manner improve the case of the University as was argued at the time of hearing of this appeal. 42. Mr. S.S. Mittal, learned Senior Counsel appearing for the University submitted that there is no legal evidence so as to allow the claim made by the plaintiff. He hastened to add that this submission he is making in the alternative and without conceding and/or admitting the claim of the plaintiff. 43. On the other hand Mr. K.D. Sood, learned Counsel for the plaintiff by referring to the statement of his client who appeared as PW-1 as well of her brother stated that his client is entitled to more than Rs. 2,50,000 as claimed by her. 44. We have examined the statements of PWs 1 and 2 as well as of DW-1. From the statement of PW-1 what emerges is that after having been declared as unsuccessful in PMT Examination in 1984, she had to go for degree examination in B.Sc. (Medical) and then underwent four semesters of law per force. She was supported by her brother who spent about Rs. 70,000/80,000 for both these courses. She was also under mental tension because of her failure in PMT Examination. 45. Besides this, because of her delayed entry into service, she has been deprived of the salary of three years. She has given the figure of such loss at Rs. 2,16,000. Besides this, her promotional avenues have also been lost.When a reference is made to the cross-examination directed to PW-1, this aspect of her statement has remained unchallenged. 45. Besides this, because of her delayed entry into service, she has been deprived of the salary of three years. She has given the figure of such loss at Rs. 2,16,000. Besides this, her promotional avenues have also been lost.When a reference is made to the cross-examination directed to PW-1, this aspect of her statement has remained unchallenged. So far PW-2 is concerned, he has only stated regarding his having financially supported the plaintiff, his sister after she was declared unsuccessful in PMT Examination held in 1984. He further stated that after her being declared unsuccessful she was under mental tension. On both these aspects, again no cross examination has been directed to PW-2. 46. Similarly, DW-1 examined on behalf of the University has also not controverted what was stated by the plaintiff as PWs 1 and 2 on monetary loss etc. 47. Thus, what follows from this is that because of loss of three years earnings, plaintiff was deprived of the same. This is in addition to the fact that she underwent mental tension attributed by her because of her having been declared unsuccessful. In view of these facts, we feel that the plaintiff is entitled to compensation on account of loss of income for three years as well as on account of her being under mental tension and her future career having been delayed for three years. At the risk of repetition we may notice that both the defendants accepted the increase of marks on re-evaluation in case of plaintiff without any demur on objection and, further on these basis was admitted to MBBS Course on the basis of her having undertaken PMT test in 1984-85 session, but in the year 1987. 48. Cumulative effect of all the facts, pleadings as well as evidence on record, in our view, is that the compensation claimed by the plaintiff is just and reasonable and it needs to be awarded to her. 49. No other point is urged. 50. In view of the aforesaid discussion this appeal deserves to be allowed and it is ordered accordingly. As a consequence of it, impugned judgment and decree passed by the learned District Judge, Shimla in Civil Suit No. 23-S/l of 1997/90 is hereby set aside. Thus, the suit of the plaintiff is decreed in the sum of Rs. 50. In view of the aforesaid discussion this appeal deserves to be allowed and it is ordered accordingly. As a consequence of it, impugned judgment and decree passed by the learned District Judge, Shimla in Civil Suit No. 23-S/l of 1997/90 is hereby set aside. Thus, the suit of the plaintiff is decreed in the sum of Rs. 2, 50,000 with costs of this appeal as well as of suit against the defendant No. 1 only. Appeal allowed. -