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Allahabad High Court · body

2010 DIGILAW 1699 (ALL)

ANURAG TIWARI v. UNION OF INDIA

2010-05-21

DILIP GUPTA

body2010
JUDGMENT Hon’ble Dilip Gupta, J.—Thirty six out of the fifty candidates who had appeared at the MD/MS Merit Screening Test-2010 for Institutional candidates conducted by the Institute of Medical Sciences, Banaras Hindu University, Varanasi (hereinafter referred to as the ‘Institute’) have sought the quashing of the order dated 6th April, 2010 passed by the Vice-Chancellor of the University as also the consequential notification dated 13th April, 2010 issued by the Institute for cancelling the Merit Screening Test held on 10th February, 2010 and for holding of a fresh ‘Merit Screening Test’ for Institutional candidates on 26th May, 2010. The petitioners have also sought a direction upon the respondents to hold the counselling of the petitioners for admission to the MD/MS course as per the merit list declared on 19th February, 2010 on the basis of the Merit Screening Test held on 10th February, 2010. 2. The Institute awards degree of MD/MS in several disciplines/subjects and admission to these courses is made through an All India Test but a separate test called ‘Merit Screening Test’ is conducted by the Institute for Institutional/Internal Candidates who have passed the Final Professional Examination from the Institute. 3. There were 134 seats available for the MD/MS Course in the Institute for the Academic Year 2010, and the breakup of the seats is as follows : (i) DGHS Quota : 67 Seats (i.e. 50% of the total intake) (ii) Institutional Quota : 43 Seats (50% of the MBBS intake) (iii) All India Entrance Test Quota : 24 seats 4. The Merit Screening Test for admission against the 43 Institutional seats was held by the Institute on 10th February, 2010 and the All India Entrance Test for the 24 All India Entrance Test Quota seats was held on 21st February, 2010. For the purpose of conducting the Merit Screening Test for the Institutional/Internal candidates, the Vice-Chancellor of the University, by the order dated 9th November, 2009, appointed Professor L.D. Mishra, Department of Anesthesiology, as the Professor In-Charge of the MD/MS Entrance Examination-2010, while Professor S.K. Gupta, Department of General Surgery, was appointed as Co-Incharge of the MD/MS Entrance Examination-2010. For the purpose of conducting the Merit Screening Test for the Institutional/Internal candidates, the Vice-Chancellor of the University, by the order dated 9th November, 2009, appointed Professor L.D. Mishra, Department of Anesthesiology, as the Professor In-Charge of the MD/MS Entrance Examination-2010, while Professor S.K. Gupta, Department of General Surgery, was appointed as Co-Incharge of the MD/MS Entrance Examination-2010. A Co-ordination Committee was also constituted for conducting the aforesaid MD/MS Entrance Examination-2010 and in its meeting held on 12th November, 2009, the Co-ordination Committee at Item No. 9 resolved that the evaluation of OMR Sheets, preparation of result sheets and its pasting on the University Website will be done with the help of the Computer Centre of the University. The schedule of the MD/MS Test for Institutional candidates was also discussed and it was resolved that as per the procedure practiced last year, the date of Screening Test will be 14th February, 2010 and the date of result on website will be 3rd week of March, 2010. Alongwith the application form provided to the candidates, Information Leaflet about the Merit Screening Test-2010 for MD/MS admission to Institutional candidates was also provided to the candidates and the relevant information contained in the leaflet is as follows : “1. Eligibility: (i) Internal candidates who have passed Final Professional MBBS Examination from Institute of Medical Sciences, BHU in December, 2008 and Supplementary Examination in April, 2009 are eligible. (ii) The Completed one year Compulsory rotating Internship by 30th April, 2010. ......................... 3. Evaluation, Result & Selection: (i) There will be only one test paper common to all the subjects. The test paper will consist of 200 objective questions from the subject taught in MBBS. 1 mark will be awarded for each correct answer. The qualifying marks shall be 50% of the aggregate for general candidates and 40% for SC/ST candidates. (ii) Selection will be made on the basis of the merit index prepared according to the guidelines provided by the Institute/University for MD/MS selection-2010. Final Merit Index = aggregate % of marks obtained in all the professional examinations+ (1.5 x number of distinctions)-(1.5 x number attempts) + % of marks obtained in the Merit Screening Test-2010. (iii) Notwithstanding anything to the contrary contained anywhere in the ordinances of the University, no scrutiny/revaluation of the answer sheet shall be allowed on any ground. Final Merit Index = aggregate % of marks obtained in all the professional examinations+ (1.5 x number of distinctions)-(1.5 x number attempts) + % of marks obtained in the Merit Screening Test-2010. (iii) Notwithstanding anything to the contrary contained anywhere in the ordinances of the University, no scrutiny/revaluation of the answer sheet shall be allowed on any ground. (iv) Roll number of qualified candidates will be displayed on the institute Notice board. (v) Selected candidates will have to appear before the admission committee for counselling. In case of equal merit index the inter-se ranking of the candidates should be determined in the following order. (vi) In case of equal marks the merit shall be decided on the basis of the aggregate of all the Professional Examinations of MBBS. Hence, candidates should clearly and correctly full up the marks obtained and the total marks of all the professional MBBS Examinations in item 11 of the application form (to be verified at the time of counselling). Otherwise any claim for correctness of inter-se merit shall not be entertained. (vii) If the marks at the above also happens to be the same, the date of birth would be the basis i.e. the candidate senior in the age would rank higher.” (emphasis supplied) 5. Fifty internal candidates appeared at the Merit Screening Test for MD/MS course-2010 which was held on 10th February, 2010 and the result of the Merit Screening Test for internal candidates was declared on 19th February, 2010 after manual checking of the OMR Sheets. Two candidates namely Dr. Rohit Kumar and Dr. Arpit Jain filed applications under the Right to Information Act, on 23rd February, 2010 demanding their OMR Sheets and Answer Keys as well as the OMR sheets of the whole batch. Dr. R. Bharadwaj also moved an application on 9th March, 2010 under the Right to Information Act with a similar prayer. This request was denied but the Two Member Committee constituted by the Vice-Chancellor of the University consisting of two Professors took a decision to re-check the OMR sheets of these three candidates and on manual checking found that in one OMR sheet a major error had occurred because the candidate had actually obtained 135 marks as against 108 marks calculated earlier, but the marks in the other two OMR Sheets remained unchanged. The Committee brought this fact to the notice of the Director of the Institute and sought his approval for rechecking all the OMR Sheets by the Computer Centre through a Scanner. The Director gave his approval but also advised for a fresh manual checking of all the OMR Sheets. Subsequently, manual rechecking of all the OMR Sheets was done by the Two Member Committee and a few more mistakes were detected. The rechecking through the scanner was also done on 1st April, 2010 and the revised merit list of the Merit Screening Test was put up on the notice board in which there was a change in the marks of 7 out of the 50 candidates. 6. The declaration of the revised result on 1st April, 2010 led to the filing of a representation by ten candidates before the Vice-Chancellor of the University on 3rd April, 2010 with a prayer that the counselling should be done on the basis of the result earlier declared on 19th February, 2010 and not on the basis of the result subsequently declared. 7. On 4th April, 2010, the Vice-Chancellor of the University constituted a Five Member Committee consisting of the Director of the Institute, the Dean Faculty of Medicine, Controller of Examinations and the Deputy Registrar to inquire into the complaints made against the subsequent revision of the examination result and the Committee was asked to submit its report within three days. This Five Member Committee, in turn, asked the Two Professors who had conducted the Merit Screening Test to submit a report. The Two Member Committee then submitted a report dated 5th April, 2010 and it will be useful to reproduce the entire report which is as follows : “The Rector Date: 5.4.2010 Banaras Hindu University. Re: MD/MS Screening Test 2010 for institutional candidates Respected Sir, This is with reference to our meeting on 4th April, 2010 (Sunday) in your office (Holkar Bhawan) regarding the rescrutiny of the answer sheets of the MD/MS 2010 screening test for institutional candidates and putting up of the revised computer checked merit list. As directed by you we are herewith presenting to you the circumstance and the sequence of events leading to the above. 1. As directed by you we are herewith presenting to you the circumstance and the sequence of events leading to the above. 1. The MD/MS screening test 2010 for institutional candidate (Total 50 candidate) was held on 10th February, 2010, and the results were put up on the notice board on 19th February, 2010 after manual checking of the OMR (answer) sheets. The checking had to be done manually because (a) both the scanning machines (one in PMT Cell and other in the Controller’s Office) were non-functional and despite our best efforts we could not get either of them rectified and (b) There was immense pressure upon us to declare the results before the BHU All India MD/MS Entrance Test scheduled on February 21, 2010. In the exam in question, there were 200 questions with one mark for each correct answer. There was no negative marking. (copy of information leaflet enclosed). 2. The BHU All India MD/MS Entrance Test was held on February 21, 2010 for which 3874 candidate had applied. The result was declared on February 25th, 2010 after scanning of the OMR (answer) sheets and computing of the results in the Computer Centre of BHU. This was possible because of our continued efforts, we could get one of the scanning machines repaired and made functional. There were 200 questions with four marks for each correct answer and minus one mark for each incorrect answer (copy of information leaflet enclosed). 3. Three institutional candidates submitted separate applications under RTI Act to the Dy. Registrar (Admin.1) & CAPIO dated 23.2.2010 and 9.3.2010, which were forwarded to us on 17.3.2010 by Asstt. Registrar & CPIO, IMS. Two of these candidates wanted their OMR sheets (Answer sheets) and answer key and copy of the OMR sheets of the whole batch. We then talked to the Dy. Registrar (Admin.1) & CAPIO on the phone. He told us that OMR sheets have never been given in the past but he also said that we should talk to Dr. K.P. Upadhyay, Controller of Examinations regarding this. We then talked to Dr. We then talked to the Dy. Registrar (Admin.1) & CAPIO on the phone. He told us that OMR sheets have never been given in the past but he also said that we should talk to Dr. K.P. Upadhyay, Controller of Examinations regarding this. We then talked to Dr. Upadhyay and he told us that they had to provide the question booklet and answer key of one of the university entrance examination to one student under RTI Act some time ago based on a precedence wherein a candidate was provided the question booklet and answer key of the BHU PMT test on the directive of the Central Information Commissioner Mr. Shailesh Gandhi. Based on the above inputs, we denied the request of all the candidates citing the relevant clause mentioned in the information booklet for candidates for MD/MS 2010 Entrance Test to the same effect. 4. We, however, realized that if the above candidates appealed to the Central Information Commission or went to Court, we might be forced to provide their OMR sheets and the answer key to the Court or its representative/candidate. 5. One of the institutional candidates who had requested for the OMR sheet met us and stated that he was extremely disappointed with the results of the said examination as he had scored more marks than many of his batch mates in the All India PGME as well as in the PG entrance exam of AIIMS, New Delhi. 6. Meanwhile we got another application dated 26th March, 2010 from Shreyas Pandey (who had not qualified in the MD/MS Screening test 2010) under RTI requesting for copy of his OMR sheet, question booklet, answer key and copies of OMR sheets of the whole batch stating that he was not satisfied with his result. 7. Based on 4, 5 and 6 above, we decided that it was worth rechecking the OMR (answer sheets once again because the first time we had checked these sheets manually and had realized that manual checking was very tedious, time consuming and cumbersome and thereby suspecting that mistake might have been made. On manual rechecking of the 3 OMR sheets, we found a major error in the total marks of one of the candidates. In the rechecking he got 135 marks instead of 108 marks that he had been given earlier. The marks of the other 2 candidates were unchanged. 8. On manual rechecking of the 3 OMR sheets, we found a major error in the total marks of one of the candidates. In the rechecking he got 135 marks instead of 108 marks that he had been given earlier. The marks of the other 2 candidates were unchanged. 8. This matter was brought to the notice of our Director and we told him that in the interest of fair-play and justice we should get all the OMR (Answer) sheets rechecked by the Computer Centre. We also believed that since the Counseling had not yet been held results had to be re-declared when it was found that an error had occurred earlier. More recently, the CPMT results (combined entrance exam for entrance in the U.P. Medical Colleges) conducted by VBS Purvanchal University also had to be redeclared because of errors in the initial results. The Director gave his approval for rechecking by the Computer Centre, but at the same time asked us to check all the OMR (Answer) sheets manually before going to the Computer Centre. 9. On manual rechecking a few more mistakes were detected in the results which reinforced the need of a computerized checking to prevent hardship to affected students as well as future litigation. The rechecking was done on 1st April, 2010 using the OMR scanner and revised merit list of the screening test was put up on the notice board on 2nd April, 2010. There was a change in the marks of 7 out of 50 candidates. We trust, this clarifies the sequence of events and the circumstances which made us embark upon this course of action.” 8. The Five Member Committee thereafter submitted a report dated 5th April, 2010 to the Vice Chancellor of the University. It found, on a comparison of the scores announced on 19th February, 2010 and 1st April, 2010, that there was a change of scores in the case of seven candidates. In one case there was a decrease of three marks while in the case of the remaining six candidates, the increase was of one mark each in four cases, three marks in one case and 27 marks in the case of Dr. Rohit Kumar. The Committee also compared the scores contained in the list announced on 1st April, 2010 with that of the computer generated list and both the lists tallied and were in order. Rohit Kumar. The Committee also compared the scores contained in the list announced on 1st April, 2010 with that of the computer generated list and both the lists tallied and were in order. The Committee submitted its report dated 5th April, 2010 to the Vice-Chancellor of the University with following ‘Analysis and Findings’ and ‘Conclusion’. “Analysis and Findings It may be seen that Professor Incharges of the MD/MS screening test had reiterated that no revaluation can be done in response to the RTI applications of some of the candidates. However, without any formal request they themselves decided to reevaluate the OMR sheets without seeking permission of the competent authority. After having done this they obtained the permission of the Director, IMS, for computer evaluation of the OMR sheets, without informing him about the RTI applications and their disposal. Further, they were fully aware that the rule 3(iii) of the test does not permit such scrutiny/reevaluation. The rule 3(iii) of the said screening test reads as under: 3(iii) “Notwithstanding anything to the contrary contained anywhere in the ordinance of the university no scrutiny/reevaluation of the answer sheet shall be allowed on any ground.” (Annexure I) In addition, there are several disturbing facts/questions pertaining to the whole affair, some of which are noted below : 1.The candidate protested on 25.2.2010 i.e. 6 days after declaration of the scores on 19.2.2010. 2.The Professor Incharges themselves evaluated the OMR sheets together and did not bother to have the scores verified, preferably, by some independent persons. 3.They have not bothered to maintain any record of either the first or the second manual evaluation. 4.They undertook reevaluation on 26.2.2010 without any formal request for the same, and that too after they had denied the same to RTI applicants in view of rule 3(iii). 5.It is difficult to understand as to how one can miss evaluation of 50 questions of an OMR sheet. Conclusion We feel that the entire process of the test including evaluation of OMR sheets for admission to various courses in IMS needs an expert review and possible lacunae need to be identified and corrective measures taken. We are forced to conclude that the evaluation process of the OMR sheets was done without due care required in such a sensitive matter, and in total contravention of the relevant rules. We are forced to conclude that the evaluation process of the OMR sheets was done without due care required in such a sensitive matter, and in total contravention of the relevant rules. There are three possible options with regard to the MD/MS internal screening test of 2010 in question. (a) The entire test may be cancelled and fresh test may be conducted. This would, however, mean penalizing the candidates for no fault of theirs and may arouse genuine protests from them. (b) The result declared on 1.4.2010 may be cancelled since this is in contravention of the explicit rule 3(iii) of the said test. However, this would lead to acceptance of the Mark list which has been shown to be incorrect on subsequent computer verification. (c) The mark list declared on 19.2.2010 may be withdrawn and that declared on 1.4.2010 may be declared as valid. However, in this case, rule 3(iii) will stand violated.” (emphasis supplied) 9. The Vice-Chancellor of the University thereafter passed an order on 6th April, 2010 for cancellation of the MD/MS Entrance Examination held for internal candidates and for holding of fresh examination and the relevant portion is as follows : “After carefully considering the entire matter, the facts of the case on record, the report of the committee constituted to find out the facts of the case under reference, legal opinion of Senior Standing Counsel at High Court, Allahabad in the matter and having regard to the sanctity of the examination and the results thereof and to the fact that the fairness, transparency and adherence to the established norms in the entire examination process are of paramount importance for the credibility of it and the slightest of slackness or deviation from the established norms vitiates the entire process and raises doubts on the credibility of the system. I have come to the conclusion that in order to maintain the sanctity and the credibility of the examination, it would be in the fitness of the things and would be in all fairness to cancel the entire MD/MS Entrance Examination 2010, IMS, BHU (for internal candidates) and to hold it afresh expeditiously. I have come to the conclusion that in order to maintain the sanctity and the credibility of the examination, it would be in the fitness of the things and would be in all fairness to cancel the entire MD/MS Entrance Examination 2010, IMS, BHU (for internal candidates) and to hold it afresh expeditiously. The entire MD/MS Entrance Examination 2010, IMS, BHU (for internal candidates) is therefore cancelled and the said examination be conducted afresh expeditiously only for those eligible applicants who have applied in response to the advertisement for the above said MD/MS Entrance Examination 2010, IMS, BHU (for internal candidates). All the applicants of the said examination be informed individually accordingly. The Professor Incharges of the said MD/MS Entrance Examination 2010, IMS, BHU be not involved in the fresh conduct of examination. A circular giving direction to all bodies entrusted with the job of Examination/Test to ensure the keeping of Answering Sheets etc. in sealed cover signed by authorized Committee be issued. A Committee of the following is constituted to suggest curative measures to eliminate such recurrence in the examination in future: 1. The Rector -Chairman 2. The Director, IMS - Member 3. Prof. K.M. Srivastava Dept. of Geophysics - Member 4. Prof. B.N. Singh, Dept. of Zoology - Member 5. The Controller of Examinations or his nominee - Member 6. Prof. I/c, PMT Cell - Member 7. The Asstt. Registrar (UET) - Member Secretary An inquiry committee consisting of the following is constituted to inquire into the entire episode and to fix the responsibility for the lapses: 1. The Rector -Chairman 2. Prof. K.M. Srivastava Dept. of Geophysics - Member 3. Prof. B.N. Singh, Dept. of Zoology - Member 4. The Dy. Registrar (RAC) - Member secretary” (emphasis supplied) 10. Pursuant to the aforesaid order passed by the Vice-Chancellor of the University, a notification dated 13th April, 2010 was issued by the Institute for holding the fresh Merit Screening Test for Institutional candidates for admission to the MD/MS course on 26th May, 2010. 11. The petitioners have sought the quashing of the order dated 6th April, 2010 passed by the Vice-Chancellor of the University as also the consequential notification dated 13th April, 2010 issued by the Institute. 12. 11. The petitioners have sought the quashing of the order dated 6th April, 2010 passed by the Vice-Chancellor of the University as also the consequential notification dated 13th April, 2010 issued by the Institute. 12. It needs to be mentioned that eight candidates who had appeared at the aforesaid Merit Screening Test on 10th February, 2010, filed an application in this petition for impleadment as respondent Nos. 6 to 13. This application was allowed by the order dated 11th May, 2010. These newly added respondents have supported the order of the Vice-Chancellor of the University for holding the fresh examination on 26th February, 2010 after the cancelling the earlier Merit Screening Test held on 10th February, 2010. 13. Another application has been filed by these newly impleaded respondents with a prayer that in the examination to be conducted, the respondents should supply the copies of the OMR sheets with carbon paper so that the carbon copy can be retained by the candidates and the result should also be published on the internet so that they can compare the marks awarded to them in oder to maintain complete transparency and sanctity of the examination. 14. I have heard Sri Ashok Khare, learned Senior Counsel appearing for the petitioners assisted by Sri Kamal Kumar Singh. Sri V.K. Singh, learned Senior Counsel assisted by Sri Hem Pratap Singh has made submission on behalf of the respondent-University and the Institute. Sri P.N. Saxena, learned Senior Counsel assisted by Sri G.K. Tripathi has made submissions on behalf of the candidates subsequently impleaded as respondents. 15. Sri Ashok Khare, learned Senior Counsel appearing for the petitioners stated at the time of hearing of the petition that instead of pressing the second relief claimed by the petitioners for holding counselling on the basis of the result declared on 19th February, 2010, the petitioners would be satisfied if the counselling is held on the basis of the result declared on 1st April, 2010 since the petitioners have now realised that there were mistakes in the result earlier declared on 19th February, 2010. It is his submission that the Vice-Chancellor of the University, in the facts and circumstances of the case, particularly in view of the report submitted by the Two Member Committee and the Analysis, Findings and Conclusion of the Five Member Committee, was not justified in cancelling the Merit Screening Test held on 10th February, 2010. It is his submission that the Vice-Chancellor of the University, in the facts and circumstances of the case, particularly in view of the report submitted by the Two Member Committee and the Analysis, Findings and Conclusion of the Five Member Committee, was not justified in cancelling the Merit Screening Test held on 10th February, 2010. He has submitted that the mistakes that had occurred in the manual checking had been subsequently rectified and no mistake whatsoever has been pointed out after the declaration of the result on the basis of the evaluation done by the scanner. He further submitted that in any case, the entire examination could not have been cancelled in view of the decision of the Supreme Court in Inderpreet Singh Kahlon and others v. State of Punjab and others, AIR 2006 SC 2571 and the Division Bench of this Court in State of U.P. and others v. Pawan Kumar Singh and others, 2009(3) ADJ 166 . 16. Sri V.K. Singh, learned Senior Counsel appearing for the respondent-University and the Institute, however, submitted that the Vice-Chancellor of the University has passed the order after a thorough examination and careful consideration of the facts and circumstances of the case as well as the report of the Inquiry Committee in order to maintain sanctity and credibility of the Examination and this decision of the Vice-Chancellor of the University does not call for any interference by this Court under Article 226 of the Constitution. It is his submission that even if two views are possible, then the view taken by the Authority should not be interfered with by the Court while exercising powers of judicial review in view of the decisions of the Supreme Court in S. Sethuraman v. R. Venkatraman and another, (2007) 6 SCC 382 and Onkar Lal Bajaj and others v. Union of India and another, (2003) 2 SCC 673 . He further submitted that purity in examination has to be maintained and for this he has placed reliance on the decisions of the Supreme Court in Director (Studies), Dr. Ambedkar Institute of Hotel Management Nutrition and Catering Technology, Chandigarh and others v. Vaibhav Singh Chauhan, (2009) 1 SCC 59 and in Manish Ujwal and others v. Maharishi Dayanand, (2005) 13 SCC 744 . Ambedkar Institute of Hotel Management Nutrition and Catering Technology, Chandigarh and others v. Vaibhav Singh Chauhan, (2009) 1 SCC 59 and in Manish Ujwal and others v. Maharishi Dayanand, (2005) 13 SCC 744 . It is also his submission that an Examiner has to be very careful and cautious in the evaluation of the answer sheets to maintain the faith in the examination and so the Vice-Chancellor of the University was justified in cancelling the examination. In support of this contention he has relied upon the decision of the Supreme Court in Sahiti and others v. Chancellor, Dr. N.T.R. University of Health Sciences and others, (2009) 9 SCC 599. 17. He further pointed out that when specific directions had been issued by the Co-ordination Committee on 12th November, 2009 that the evaluation of the OMR sheets and preparation of the result sheet should be done with the help of the Computer Centre of the University, there was no occasion for the two Professors who held the MD/MS Merit Screening Test to check the OMR sheets manually and declare the result in haste on 19th February, 2010 even though the Co-ordination Committee had taken a decision to declare the result on the website by the third week of March, 2010. According to him, the Two Member Committee could not have taken a decision to recheck the answers after the result was declared on 19th February, 2010 and that too without obtaining any order from the Competent Authority in view of Clause 3(iii) of the Rules supplied with the Information Leaflet which provides that notwithstanding anything to the contrary contained anywhere in the Ordinances of the University, no scrutiny/re-evaluation of the answer sheet shall be allowed on any ground. 18. Sri P.N. Saxena, learned Senior Counsel appearing for the newly impleaded students has adopted the submissions advanced by the learned Senior Counsel for the University and has submitted that in the facts and circumstances of the case, the order passed by the Vice-Chancellor of the University for cancelling the examination is justified and does not call for any interference by the Court under Article 226 of the Constitution. 19. I have considered the submissions advanced by learned Senior Counsel for the parties. 20. 19. I have considered the submissions advanced by learned Senior Counsel for the parties. 20. There can be no dispute that purity and fairness in examination is of paramount importance and has to be maintained at all costs and that an examiner has to be careful and cautious while evaluating the answer books so that no doubts are cast on the credibility of the examination. 21. In the present case, it is not in dispute that the Merit Screening Test for internal candidates of the Institute which was held on 10th February, 2010 consisted of 200 objective questions set out in the OMR Sheet with four answers to each question and the candidates were required to select the most appropriate answer. One mark was to be awarded for the correct answer and there was no negative marking. The qualifying marks for the General Category Candidate was 50% while that for the Reserved Category Candidate was 40%. Fifty internal candidates appeared at the said MD/MS Merit Screening Test-2010 and the result for admission to the 43 seats was declared on 19th February, 2010. The Five Member Committee considered the report submitted by the Two Member Committee and also examined the record. It found that there was a change in the marks of seven candidates in the two results declared on 19th February, 2010 and 1st April, 2010 and what is important is that it also found that the scores contained in the list announced on 1st April, 2010 and the scanner generated list were identical and in order. 22. A perusal of the Analysis and Findings of the Five Member Committee shows that it felt highly disturbed by the fact that when Clause 3(iii) of the Rule did not permit scrutiny/re-evaluation of the answer sheets, the Two Member Committee, which conducted the Merit Screening Test, should not have re-evaluated the OMR Sheets without seeking permission of the Competent Authority. The Five Member Committee also noted the following additional disturbing facts pertaining to the whole affair : “1. The candidate protested on 25.2.2010 i.e. 6 days after declaration of the scores on 19.2.2010. 2. The Professor Incharges themselves evaluated the OMR sheets together and did not bother to have the scores verified, preferably, by some independent persons. 3. They have not bothered to maintain any record of either the first or the second manual evaluation. 4. The candidate protested on 25.2.2010 i.e. 6 days after declaration of the scores on 19.2.2010. 2. The Professor Incharges themselves evaluated the OMR sheets together and did not bother to have the scores verified, preferably, by some independent persons. 3. They have not bothered to maintain any record of either the first or the second manual evaluation. 4. They undertook re-evaluation on 26.2.2010 without any formal request for the same, and that too after they had denied the same to RTI applicants in view of rule 3(iii). 5. It is difficult to understand as to how one can miss evaluation of 50 questions of an OMR sheet.” 23. After having noted the aforesaid, the Five Member Committee concluded that the evaluation process of the OMR sheets was done without due care required in such a sensitive matter and was also in total contravention of the relevant Rules. It is for this reason that it gave three options to the Vice-Chancellor of the University namely : “(a) The entire test may be cancelled and fresh test may be conducted. This would, however, mean penalizing the candidates for no fault of theirs and may arouse genuine protests from them. (b) The result declared on 1.4.2010 may be cancelled since this is in contravention of the explicit rule 3(iii) of the said test. However, this would lead to acceptance of the Mark list which has been shown to be incorrect on subsequent computer verification. (c) The mark list declared on 19.2.2010 may be withdrawn and that declared on 1.4.2010 may be declared as valid. However, in this case, rule 3(iii) will stand violated.” 24. The Vice-Chancellor of the University in his order dated 6th April, 2010 observed that fairness, transparency and adherence to the established norms in the entire examination process are of paramount importance for its credibility and any slackness or deviation from the established norms vitiates the entire process and raises doubts in the credibility of the system. He, therefore, in order to maintain the sanctity and the credibility of the examination, decided to cancel the entire MD/MS Entrance Examination 2010 held for the internal candidates and ordered for holding of a fresh examination expeditiously. He, therefore, in order to maintain the sanctity and the credibility of the examination, decided to cancel the entire MD/MS Entrance Examination 2010 held for the internal candidates and ordered for holding of a fresh examination expeditiously. This order of the Vice-Chancellor of the University has, therefore, to be examined in the light of the conclusion arrived at by the Five Member Committee that the “evaluation process of the OMR sheets was done without due care required in such a sensitive matter and in total contravention of the relevant Rules”. 25. However, before proceeding to do so, it is necessary at this stage to consider the scope of judicial review in such matters. The Supreme Court has repeatedly emphasized that an Authority has to pose to itself a correct question so as to arrive at a correct finding and a wrong question may lead to a wrong answer. An error of fact touching the merit of the decision vis-a-vis the decision making process will also come within the purview of the power of judicial review, apart from other factors like, illegality, irrationality and procedural impropriety. The concept of error of law includes the giving of reasons that are bad in law or inconsistent, unintelligible or substantially inadequate and that all actions of public functionary must be guided by reasons and not by whims or caprice of the persons entrusted with the task. 26. In this connection, reference needs to be made to the decision of the Supreme Court in Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 , in which the Supreme Court pointed out: “It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer............... Errors of fact can also be a subject-matter of judicial review. (See E. v. Secy. of State for the Home Deptt.) Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. titled “Judicial Review, Appeal and Factual Error” published in 2004 Public Law, p.788.” (emphasis supplied) 27. Errors of fact can also be a subject-matter of judicial review. (See E. v. Secy. of State for the Home Deptt.) Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. titled “Judicial Review, Appeal and Factual Error” published in 2004 Public Law, p.788.” (emphasis supplied) 27. In S.N. Chandrashekar v. State of Karnataka, (2006) 3 SCC 208 , the Supreme Court also observed: “It is now well known that the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate. (See de Smith’s Judicial Review of Administrative Action, 5th Edn., p. 286.) The Authority, therefore, posed unto itself a wrong question. What, therefore, was necessary to be considered by BDA was whether the ingredients contained in Section 14-A of the Act were fulfilled and whether the requirements of the proviso appended thereto are satisfied. If the same had not been satisfied, the requirements of the law must be held to have not been satisfied. If there had been no proper application of mind as regards the requirements of law, the State and the Planning Authority must be held to have misdirected themselves in law which would vitiate the impugned judgment.” (emphasis supplied) 28. The Supreme Court in State of Kerala and others v. K. Prasad and another, 2007 AIR SCW 4884, held as follows : “This Court in Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212 , held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us, arbitrariness being the negation of the rule of law. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power.” (emphasis supplied) 29. In Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite-Patil, AIR 2009 SC 2975 , the Supreme again examined the scope of judicial review and observed: “Even in applying the standard of judicial review, we are of the opinion that the scope thereof having been expanded in recent times, viz., other than, (i) illegality, (ii) irrationality and (iii) procedural impropriety, an error of fact touching the merit of the decision vis-a-vis the decision making process would also come within the purview of the power of judicial review.” (emphasis supplied) 30. In this connection reference can also be made to the decisions of the Supreme Court in Indian Airlines Ltd. v. Prabha D. Kanan, (2006) 11 SCC 67 and Meerut Development Authority v. Association of Management Studies and another, 2009 (6) SCC 171 . 31. It is in the light of the aforesaid principles stated by the Supreme Court that the order passed by the Vice-Chancellor of the University has to be examined. 32. The Vice-Chancellor of the University had constituted a high powered Five Member Committee to examine the complaint made by the students about the revised declaration of result on 1st April, 2010. What transpires from the ‘Analysis and Findings’ and the ‘Conclusion’ of the Five Member Committee is that it found fault in the evaluation process of the OMR sheets by the Two Member Committee as manual evaluation of the OMR Sheets was done instead of evaluation by the Scanner as was recommended by the Co-ordination Committee and that manual re-evaluation was done on 26th February, 2010 in contravention of the provisions of Rule 3(iii) under which no scrutiny/re-evaluation of the answer sheets can be allowed on any ground. Learned Senior Counsel appearing for the respondent-University has also placed much emphasis on Rule 3(iii) and has contended that in view of the clear provisions contained in this Rule, it was just not possible for the Two Member Committee to re-evaluate all the OMR Sheets first manually and then by the Scanner. 33. Such observations of the Five Member Committee and the submissions of learned Senior Counsel for the respondent-University cannot be accepted. Rule 3(iii) will not apply if the Authority holding the examination considers it necessary, in the facts and circumstances of the case, to re-evaluate the OMR Sheets. 33. Such observations of the Five Member Committee and the submissions of learned Senior Counsel for the respondent-University cannot be accepted. Rule 3(iii) will not apply if the Authority holding the examination considers it necessary, in the facts and circumstances of the case, to re-evaluate the OMR Sheets. The fairness in the conduct of an examination has to be ensured and for the credibility of the examination to be maintained, the Authority will be justified in rectifying any mistake that they may have crept in while evaluating the OMR Sheets. This is precisely what has happened in the present case. The Two Member Committee felt the need to re-evaluate the OMR Sheets as three candidates had filed applications under the Right to Information Act and on re-evaluation of these three OMR Sheets it was found that there was a mistake in one out of the three OMR sheets. They then sought the approval of the Director of the Institute for re-evaluation of all the OMR Sheets by Scanner so that if there was any other discrepancy, it could also be rectified. The Director of the Institute, by way of abundant caution, also directed the Two Member Committee to first conduct a manual re-evaluation of all the OMR Sheets before the Scanner re-evaluation was done. On manual re-evaluation, the Two Member Committee found mistakes in seven OMR Sheets. It needs to be emphasized that after the manual re-evaluation of all the OMR Sheets was done, the OMR Sheets were also scanned by the Scanner and no mistake was detected by the Scanner in the manual result. In such circumstances Rule 3(iii) is not violated. 34. The Supreme Court in Sahiti and others v. Chancellor, Dr. N.T.R. University of Health Sciences and others, 2008 AIR SCW 8194, has also observed that such a Rule only prohibits the student from applying for re-evaluation and does not prohibit the University from re-evaluating the answer sheets. The portion of the order of the Supreme Court dealing with this issue is quoted below : “................The plea that there is absence of specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts and, therefore, the Judgment impugned should not be interfered with, cannot be accepted. Re-evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. Re-evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the Court should consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the Court should show due regard to the opinion expressed by the authority..................It was admitted before the Supreme Court that the regulation of the Board of Secondary education, Orissa did not make any provision of re-evaluation of answer books of the students. The Supreme Court was of the opinion that the question whether in absence of any provision to that effect an examinee is entitled to ask for re-evaluation of his answer books was examined by the Supreme Court in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, (2004) 6 SCC 714 . It was noticed by the Supreme Court that in the said decision it was held that in absence of rules providing for re-evaluation of the answer books no direction should be issued because a direction for re-evaluation of the answer books would throw many problems and in the larger public interest such a direction must be avoided. Therefore, the Supreme Court expressed the opinion that the order of the High Court directing re-evaluation of the answer books of all the examinees securing 90% or above marks was clearly unsustainable in law and set aside the same. The above decision deals with the right of the student or candidate to claim re-examination/re-evaluation of his answer sheet and the power of the High Court to order revaluation of answer sheets. It does not deal with the power of the Board to order re-evaluation of answer books if factual scenario so demands. Award of marks by an examiner has to be fair and considering the fact that re-evaluation is not permissible under the Statute at the instance of candidate, the examiner has to be careful, cautious and has the duty to ensure that the answers are properly evaluated. Therefore, where the authorities find that award of marks by an examiner is not fair or that the examiner was not careful in evaluating the answer scripts re-evaluation may be found necessary. Therefore, where the authorities find that award of marks by an examiner is not fair or that the examiner was not careful in evaluating the answer scripts re-evaluation may be found necessary. There may be several instances wherein re-evaluation of the answer scripts may be required to be ordered and this Court need not make an exhaustive catalogue of the same. However, if the authorities are of the opinion that re-evaluation of the answer scripts is necessary then the Court would be slow to substitute its own views for that of those who are expert in academic matters.” (emphasis supplied) 35. It is true that Scanner evaluation would have been more desirable since there is no scope for any mistake, but the Two Member Committee has given reasons that the Scanner evaluation was not possible since both the Scanners were out of order. It cannot, by any stretch of imagination, be said that the sanctity of the examination has been vitiated because manual evaluation was done since the mistakes that had been crept in the manual evaluation had been subsequently rectified when the revised result was declared on 1st April, 2010. 36. It also needs to be mentioned that even in the ‘Conclusion’ part of their report, the Five Member Committee only observed that it was the evaluation process of the OMR Sheets that was done without due care and in contravention of the Rules. The Five Member Committee has not found any defect in the holding of the Entrance Examination and there is no finding that it suffered from any illegality or that the students had resorted to use of unfair means. Comments have only been made on the manual evaluation mode adopted by the Two Member Committee but whatever mistakes had occurred in this evaluation process had been rectified after manual re-evaluation and Scanner re-evaluation. Such manual re-evaluation and scanner evaluation had been done by the Two Member Committee after seeking approval of the Director of the Institute and it cannot be said that permission had not been taken. 37. Such manual re-evaluation and scanner evaluation had been done by the Two Member Committee after seeking approval of the Director of the Institute and it cannot be said that permission had not been taken. 37. These are the factors that were required to be examined by the Vice-Chancellor of the University, but a perusal of the order passed by the Vice-Chancellor of the University shows that he has only made general observations about the fairness and transparency in holding of examinations though he was required to deal with the findings and the conclusion arrived at by the Five Member Committee. The broad and general observations made by the Vice-Chancellor of the University are no doubt true, but he failed to address himself to the correct questions so as to arrive at correct findings. In fact, one of the option that was given by the Five Member Committee was to make admissions on the basis of the merit list declared on 1st April, 2010 and the only reservation expressed was that it will result in violation of Rule 3(iii). This reservation expressed by the Five Member Committee has not been found to be correct. While dealing with the option for cancelling the entire examination and holding fresh examination, the Five Member Committee itself pointed out that this will penalize the candidates for no fault of theirs and may arouse genuine protests from them but this has not been taken note of by the Vice-Chancellor of the University. 38. The Vice-Chancellor of the University without making any specific reference to any fact that may have persuaded him to hold that the sanctity of the examination had been vitiated and fairness and transparency had not been maintained, ordered for cancellation of the examination. What was required to be seen was whether there was any defect in the holding of the examination or there was any mistake in the evaluation of the OMR Sheets because any mistake in the evaluation of the OMR Sheets could be corrected and was indeed corrected but any defect in the holding of the examination could not have been rectified, except by cancellation of the examination. The Analysis and the Conclusion of the Five Member Committee highlight only the defects in the evaluation of the OMR Sheets and do not mention any defect in the holding of the examination. The Analysis and the Conclusion of the Five Member Committee highlight only the defects in the evaluation of the OMR Sheets and do not mention any defect in the holding of the examination. Thus, in the absence of any finding about any defect/irregularity in the holding of the examination, the Vice-Chancellor of the University was not justified in cancelling the examination. 39. Thus, the Vice-Chancellor of the University failed to address himself to the correct issue that was required to be decided. He not only committed an error of fact touching the merit of the decision but also committed an error of law as the decision taken by him is not only arbitrary and unjustified but has been taken without application of mind to any of the relevant consideration. He could not have taken such a drastic action as cancellation of the entire examination and even according to the Five Member Committee this would have meant penalizing the candidates for no fault of theirs. 40. Sri V.K. Singh, learned Senior Counsel appearing for the respondent-University has, however, placed reliance upon the decision of the Supreme Court in Onkar Lal Bajaj and others v. Union of India and another, (2003) 2 SCC 673 , in support of his submission that if two views are possible then the view expressed by the Vice-Chancellor of the University should be accepted and should not be interfered with. 41. As noticed hereinabove, the present is a case where there was no need at all to cancel the examination and it is not a case where, in the facts and circumstances of the case, any other view except ordering for declaration of the result on the basis of the list declared on 1st April, 2010 could possibly have been taken. 42. In fact in Onkar Lal Bajaj (supra) the Supreme Court set aside the decision taken by the Government for en masse cancellation of allotments of petrol pumps since it was unjustified and arbitrary and taken without application of mind to any of the relevant consideration. 42. In fact in Onkar Lal Bajaj (supra) the Supreme Court set aside the decision taken by the Government for en masse cancellation of allotments of petrol pumps since it was unjustified and arbitrary and taken without application of mind to any of the relevant consideration. The Supreme Court further held that a decision has to be tested on the touchstone of justice, equity and fair play and if the decision has taken into consideration other matters, though on the face of it, the decision may look legitimate, if the reasons are not based on values but to achieve popular accolade, the decision cannot be allowed to operate. It further held that mere reason that a “controversy” has been raised cannot itself clothe the Government with the power to pass such a drastic order for en masse cancellation. The relevant portion of the judgment is quoted below : “Article 14 guarantees to everyone equality before law. Unequals cannot be clubbed. The proposition is well settled and does not require reference to any precedent though many decisions were cited. Likewise, an arbitrary exercise of executive power deserves to be quashed is a proposition which again does not require support of any precedent. It is equally well settled that an order passed without application of mind deserves to be annulled being an arbitrary exercise of power. At the same time, we have no difficulty in accepting the proposition urged on behalf of the Government that if two views are possible and the Government takes one of it, it would not be amenable to judicial review on the ground that other view, according to the Court, is a better view......... In the case in hand, the only reason for the en masse cancellation was that a ‘controversy’ had been raised. There was no application of mind to any case. Admittedly, none of cases was examined. In Shrilekha Vidyarthi case, this Court held that arbitrariness is writ large on the impugned circular. In State action public interest has to be the prime guiding consideration. There was no application of mind to any case. Admittedly, none of cases was examined. In Shrilekha Vidyarthi case, this Court held that arbitrariness is writ large on the impugned circular. In State action public interest has to be the prime guiding consideration. In Shrilekha Vidyarthi case, it was held that the impugned State action was taken with only one object in view, i.e., to terminate all existing appointments irrespective of the subsistence or expiry of the tenure or suitability of the existing incumbents and that by one omnibus order, the appointments of all Government Counsel in the State of Uttar Pradesh were terminated. It was also noticed that no common reason applicable to all of them justifying their termination in one stroke on a reasonable ground had been shown. The position is similar in the present case...........................The roll model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate. The mere reason that a “controversy” has been raised by itself cannot clothe the Government with the power to pass such a drastic order which has a devastating effect on a large number of people. In governance, controversies are bound to arise. In a given situation, depending upon facts and figures, it may be legally permissible to resort to such en masse cancellation where the executive finds that prima facie a large number of such selections were tainted and segregation of good and bad would be difficult and time consuming affair. That is, however, not the case. In a given situation, depending upon facts and figures, it may be legally permissible to resort to such en masse cancellation where the executive finds that prima facie a large number of such selections were tainted and segregation of good and bad would be difficult and time consuming affair. That is, however, not the case. Here the controversy raised was in respect of 5 to 10%, as earlier indicated. In such a situation, en masse cancellation would be unjustified and arbitrary. It seems that the impugned order was a result of panic reaction of the Government. No facts and figures were gone into. Without application of mind to any of relevant consideration, a decision was taken to cancel all allotments. The impugned action is clearly against fair play in action. It cannot be held to be reasonable. It is nothing but arbitrary.” (emphasis supplied) 43. Learned Senior Counsel for the respondent-University also submitted that the Two Member Committee had proceeded to declare the result in haste on 19th February, 2010 since the Co-ordination Committee had decided that the result should be declared in the 3rd week of March, 2010. The Two Member Committee in its report dated 4th April, 2010 submitted to the Five Member Committee has pointed out that the students themselves were wanting an early declaration of the result before the All India MD/MS Entrance Test of the University was to be held on 21st February, 2010. This explanation seems to be satisfactory and in any case an early declaration of result cannot be made a ground to hold that the fairness or transparency in the examination had not been maintained. 44. Learned Senior Counsel for the respondent-University has placed reliance upon the decision of a Division Bench of the Delhi High Court in Secy. D.S.S.S.B. v. Neeraj Kumar and others, 2006(3) ESC 2041 (Del)(DB), wherein it has been observed : “In our opinion in such cases where there are allegations of use of unfairness means in an examination, it is open to the authorities to cancel the entire examination if the authorities feel that the fairness and transparency in the examination could have been affected. This can be done even if there is no clinching evidence that cheating or use of unfair means was resorted to. This can be done even if there is no clinching evidence that cheating or use of unfair means was resorted to. There may be instances where the authorities get some information on the basis of which they have reasonable apprehension of use of unfairness means in the examination, but it may not be possible to find out to what extent that was done. In such cases it may not be possible to cancel the result of individual students as it may not be possible to know which particular student did cheating and which did not. Hence in such cases very often the authorities resort to cancellation of the whole examination, and this Court will not interfere in such administrative decisions as has been repeatedly held by the Supreme Court e.g. in Union of India and others v. Tarun K. Singh and others, (2003) 11 SCC 768.” (emphasis supplied) 45. This decision also does not help the respondents since there were allegations of use of unfair means in the said examination and it is for this reason that the examination was cancelled. 46. In view of the aforesaid, it is not necessary to deal with the submissions advanced by Sri Ashok Khare, learned Senior Counsel for the petitioners that the entire examination was not required to be cancelled in view of the two decisions referred to by him and nor is it necessary to pass any order on the application filed by the newly impleaded respondents for issuing directions to supply carbon copies of the OMR Sheets and other documents. 47. Thus, for all the reasons stated above, it is not possible to sustain the order dated 6th April, 2010 passed by the Vice-Chancellor of the University as also the consequential notification dated 13th April, 2010 issued by the Institute for cancelling the Merit Screening Test held on 10th February, 2010. In normal circumstances, the matter would have been remitted to the Vice-Chancellor of the University for passing a fresh order, but in view of the discussion made above, the irresistible conclusion that follows is that there is no infirmity or illegality in the declaration of Merit Screening Test result on 1st April, 2010. It is, therefore, not necessary to remit the matter to the Vice-Chancellor of the University for a fresh consideration. It is, therefore, not necessary to remit the matter to the Vice-Chancellor of the University for a fresh consideration. The University shall, therefore, proceed to make admissions on the basis of the merit list declared on 1st April, 2010. 48. In the result, the order dated 6th April, 2010 passed by the Vice-Chancellor of the University as also the consequential notification dated 13th April, 2010 issued by the Institute for cancelling the Merit Screening Test held on 10th February, 2010 are set aside and a direction is issued to the respondent-University and the Institute to make admissions to the MD/MS Course for the Institutional seats in accordance with the list declared on 1st April, 2010. The writ petition is, accordingly, allowed. —————