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Orissa High Court · body

2011 DIGILAW 262 (ORI)

NIHAR RANJAN PARIDA v. STATE OF ORISSA

2011-04-27

M.M.DAS

body2011
JUDGMENT : M.M. Das, J. - Since all the aforesaid writ petitions involve similar questions of fact and law, they were heard together and are disposed of by this common judgment. 2. The short facts relevant for deciding these cases are that, an entrance examination was held on 23.01.2011 by the Convenor, P.G. Medical Selection Committee, 2011-cum-Dean and Principal of V.S.S. Medical College, Burla for selecting candidates to take admission to P.G. (Medical) Course 2011. The petitioners were candidates in the said entrance test. The questions set in the entrance examination were multiple choice questions, each question having four suggested answers. The candidates were required to mark the most appropriate answer in the question answer book-let. The petitioners, being not selected for admission to P.G. (Medical) Course, 2011 and having found from the model questions and answers, which were available in the website by the examining body as per Clause - 10.17 of the Prospectus, that many of the answers suggested to be correct answers to the questions set in the entrance examination, were wrong, have raised objections to such evaluation of the answers given by them. Clause -10.17 of the Prospectus reads as follows:- 10.17. The Model Question & Answer will be made available in the website i.e. www.orissa.gov.in (Click views for all advertisement) on the next day of examination and accordingly the candidates will be given scope to file objection, if any, within 7 (seven) days from the date of completion of the examination before the Chairman, who will take up the matter with a committee of experts and the decision of the Committee would be final and binding on the part of the candidates. In case the objection is found true, the marks will be awarded accordingly at the time of evaluation of the answer sheets. After the stipulated period is over, no objection in any form will be entertained and liable to be rejected. Some of the writ petitioners, pursuant to the aforesaid clause filed their objections in respect of 26 questions. Some of the other petitioners though have questioned the correctness of the answers to a total number of 63 questions and though claimed that they filed objections pursuant to the aforesaid clause, but filing of such objections has been disputed by the opposite parties. Some of the other petitioners though have questioned the correctness of the answers to a total number of 63 questions and though claimed that they filed objections pursuant to the aforesaid clause, but filing of such objections has been disputed by the opposite parties. Cases of the present nature blossom before this Court like seasonal flowers each year after the entrance examinations are conducted, which clearly exhibit the despondency on the part of the candidates and repeated interference of this Court with the system of examination and selection of candidates, exhibits the malleable and vulnerable nature of questions set and answers suggested by the examining body. Even though this Court in various decisions has prescribed guidelines and precautionary measures to be taken by the examining authorities for avoiding such repeated litigations to come up before this Court, however, again similar questions have been raised in the aforesaid writ petitions, which have been earlier raised time and again before this Court in respect of entrance tests conducted in previous years. This itself tells upon the efficiency of the examining body with regard to setting questions and suggesting answers in the entrance examination where candidates are required to answer 300 multiple choice questions within three and half hours meaning thereby that each question is to be answered within less than a minute time. 3. Before adverting to the specific disputes raised by the petitioners in the writ petitions, it would be appropriate to note that by now it is well settled that multiple choice and objective test is different from traditional system of examination and in a multiple choice/objective test, one of the answers indicated is the correct or most appropriately correct answer and the rest are answers either wholly incorrect or incorrect though appear to be correct. It is also well settled that the answers' to the question, as indicated must not carry two correct answers enabling the examiner to select one as the key answer, as this would introduce an element of gamble. The above proposition was laid down by this Court in the case of Priyadarshini Acharya and Others Vs. State of Orissa and Others. In the said case this Court was examining the allegation of wrong evaluation of answers on the basis of wrong suggested answers to multiple choice questions. The above proposition was laid down by this Court in the case of Priyadarshini Acharya and Others Vs. State of Orissa and Others. In the said case this Court was examining the allegation of wrong evaluation of answers on the basis of wrong suggested answers to multiple choice questions. This Court laid down that if the expert body takes a view, which no reasonable person can take, or where the method adopted or decision taken is clearly unreasonable and perverse, the Court should interfere. Relying on the observations of Lord Denning in Baldwin Francis Limited v. Patents Appeal Tribunal (1959) 2 All ER 433 and quoting a passage therefrom, this Court in the said case accepted the view of Lord Denning, who observed that even on technical matters, a Court can hear argument of counsel and consult text books, technical dictionaries etc. or even be informed through assessors, and the Court's jurisdiction is not to be shut out merely on the ground of technicality of the matter. Observing thus, this Court proceeded to analyze the suggested answers to the questions, which were complained of. Referring to various text books, on the principle that an answer if shown demonstratively to be wrong, from the accepted text book, but is suggested to be correct answer, held that the Court can interfere, as otherwise a candidate who has given the correct answer, is deprived of the marks for the said question just because a wrong answer has been suggested to be a correct answer for the said question and thereby it may so happen that a meritorious candidate will be left out from taking admission. Ultimately this Court reiterated the view of the Supreme Court expressed in Kanpur University and Others Vs. Samir Gupta and Others, and recommended that henceforth the question should be modulated by a body of experts chosen by the State Government and objective type questions should be set in such a manner that questions having ambiguous import are not set. The answer should contain one correct answer and the rest should be either incorrect or nearly correct leaving no scope for reasoning or argument except merely involving tick- marking the correct answer. The answer should contain one correct answer and the rest should be either incorrect or nearly correct leaving no scope for reasoning or argument except merely involving tick- marking the correct answer. The question therefore has to be clear and equivocal and as was recommended by the Supreme Court, the Government was directed that if attention of the Government or the examining body is drawn to any defect in the key answer or to any question, timely decision should be taken to declare the exclusion of the suspected question from the paper so that no marks are assigned to it. With regard to a question being shown to be demonstratively wrong, the Supreme Court in the case of Kanpur University & others (supra) laid down that the key answers 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 process of rationalization. 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 Supreme Court further held that where it is proved that the answer given by the student is correct and the key answer is incorrect, the students are entitled to relief asked for. In case of doubt, unquestionably the key answer has to be preferred. But if the matter is beyond the realm of doubt, it would be unfair to penalize the students for not giving an answer, which accords with the key answer i.e. to say with an answer, which is demonstrated to be wrong. (emphasis supplied) 4. The first question to be dealt with in the present case is with regard to the dispute as to whether objection was raised by some of the petitioners in respect of 63 numbers of questions as per Clause - 10.17 of the Prospectus within the time stipulated. 5. In the writ petitions, which involve these 63 questions, the initial averment was that objection with regard to answers suggested to the said questions were raised before the Convenor, who assured the petitioners to look into their grievance within a short time. 5. In the writ petitions, which involve these 63 questions, the initial averment was that objection with regard to answers suggested to the said questions were raised before the Convenor, who assured the petitioners to look into their grievance within a short time. The said averment was developed further in the rejoinder affidavit by stating that written objections were filed, which were sent Under Certificate of Posting in accordance with Clause - 10.17 of the Prospectus. The Selection Committee however, has denied such allegations and has asserted that no such objections were received with regard to 63 questions. However, with regard to 26 questions, it was admitted that objections were received. 6. Mr. B. Routray and Mr. Sanjit Mohanty, learned senior counsel appearing for the petitioners, however, urged that Clause - 10.17 of the Prospectus cannot be construed to be mandatory, more so, when, the conditions mentioned in the said clause with regard to publication of the questions and the correct answers in the Government website on the next day of the examination was deviated by the Admission Committee itself and such questions with correct answers were only made available in the website on the third day of the examination. 7. Mr. Sanjit Mohanty, learned senior counsel further argued that even assuming that the objections with regard to 63 questions have not been filed, the case of the petitioners, who have alleged incorrect evaluation in respect of the said 63 questions cannot be thrown out solely on the basis of Clause 10.17 of the Prospectus if they successfully exhibit before the Court that the suggested answers to all those questions are demonstratively wrong. He further submitted that disallowing the prayer of the petitioners would amount to accepting an illegal and arbitrary action on the part of the State to be correct and that if this is done, many meritorious candidates will be deprived of admission, whereas, candidates with less merit, who have given wrong answers, would be selected, which would be violating the mandates of Article 14 of the Constitution. 8. Mr. Ashok Parija and Mr. Jagannath Patnaik, learned senior counsel appearing for the interveners, who are some of the selected candidates, vehemently opposed the contentions raised by Mr. 8. Mr. Ashok Parija and Mr. Jagannath Patnaik, learned senior counsel appearing for the interveners, who are some of the selected candidates, vehemently opposed the contentions raised by Mr. Mohanty and submitted that when a procedure has been laid down in the Prospectus to raise objections with regard to any wrong answers suggested by the examining body, without following such procedure, the petitioners, who have not filed objections, cannot be allowed to raise objections to the correctness of the answers suggested to said 63 questions on any ground, at this stage. In view of the decisions referred to above, this Court is of the opinion that even accepting that no objection has been filed with respect to 63 questions, in accordance with Clause - 10.17 of the Prospectus, the doors of justice cannot be shut for the petitioners, who allege that wrong answers have been suggested to such questions, if they succeed in demonstratively showing that the answers suggested by the examining committee are wrong, as otherwise, it would amount to this Court closing its eyes to apparent illegality committed by the examining body and depriving the candidates, who have given the correct answers from obtaining marks for the said questions over and above being awarded with negative marks as per the Prospectus. The objections raised therefore with regard to maintainability of such allegation by some of the petitioners, who have not filed objections in accordance with Clause - 10.17 of the Prospectus, stands overruled. 9. Before examining the objections to each of the aforesaid 63 questions, which also contain some of the questions out of the 26 questions for which, objections were filed and the Convenor by constituting a committee verified the said 26 questions and decided not to take any action with regard to 13 numbers of questions, corrected the answers earlier suggested to eight questions and found five questions to be ambiguous deciding to award full marks to all the candidates in respect of those five questions, it would be appropriate to divide the said 63 questions to different categories. 10. Before doing so, another question raised by Mr. Routray with regard to the irregularity in setting the questions, is required to be dealt with. Mr. Routray submitted that Clause - 9.2 of the Prospectus though prescribed that question papers containing 300 questions should be divided into two parts. 10. Before doing so, another question raised by Mr. Routray with regard to the irregularity in setting the questions, is required to be dealt with. Mr. Routray submitted that Clause - 9.2 of the Prospectus though prescribed that question papers containing 300 questions should be divided into two parts. The first part will consist of non-clinical and para-clinical subjects and the second part will consist of clinical subjects and it further prescribed that there should be subject-wise number of questions as given in Appendix - II of the Prospectus, the said specified number of questions, subject-wise were not set in the question paper and there was a deviation thereto. For example, he submitted that Appendix - II of the Prospectus prescribed number of questions to be set subject-wise in each part of the question paper and therefore a candidate, who is required to answer 300 questions within three and half hours, had the choice of not preparing for the entrance examination in some of the subjects thereby getting more time to concentrate on the rest of the subjects in which, more number of questions were to be set. He therefore submitted that the number of questions deviated should be eliminated. 11. The entrance test being conducted for P.G. (Medical) Course on completion of which course, the said successful doctors would be known as specialists and keeping in view Clause - 9.3 of the Prospectus, which provides that the questions in both parts shall be of MBBS standard and shall cover all the subjects of MBBS Course, this Court is unable to accept the contention raised by Mr. Routray that any deviation made with regard to appendix II of the Prospectus with regard to specific number of questions required to be set in respect of different subjects would entail such deviated number of questions to be eliminated inasmuch as this Court is of the view that when the eligibility criteria to appear in the entrance test is that the candidates must have passed MBBS degree and it was specified that all the questions shall be set from MBBS Course, it was incumbent upon a candidate, who seeks to do specialization in a particular subject in P.G. (Medical) Course, to prepare for all questions that may be set covering of all the subjects of MBBS Course. 12. 12. The 63 questions in respect of which, objections have been raised can be categorized into four categories, such as, (i) Questions/answers with spelling mistakes; (ii) Questions set out of MBBS Course; (iii) Number of questions set in deviation to Clause - 9.2 and Appendix II of the Prospectus, and (iv) Questions with more than one correct answers; 13. It is relevant to mention here that with regard to the correction made by the Convenor in respect of 13 questions after its verification by a Committee constituted for that purpose, as uploaded to the website were question Nos. 22, 32, 34, 75, 140, 147, 152, 163, 176, 189, 269, 275 and 297. Out of the above 13 questions, in respect of five questions, i.e., questions Nos. 75, 140, 163, 176 and 269, the Committee decided to award full marks to all the candidates as the said questions were found to be ambiguous. Under the first category, i.e., questions with spelling mistake, some of the petitioners have alleged the following questions to be containing spelling mistake of such nature, which cannot be ignored and, therefore, it is asserted that all candidates should be awarded marks for those questions. The said questions are, question Nos. 69, 197, 22, 133, 86, 156, 67, 216, 177, 141, 247, 159, 84, 161, 261, 246, 271, 36, 03, 169, 76, 155, 91, 38, 110, 280, 231, 278, 18, 81, 41, 57, 179, 284, 124, 137, 37, 60, 158, 186 and 224. 14. In order to appreciate the contentions raised by the learned counsel for the respective parties, it would be appropriate to deal with each of the above questions. Question No. 22 This was one of the questions in regard to which, objection was raised by the candidates alleging that the answer "B" suggested is wrongly spelt as, instead of "stretch reflex", it has been printed as "stress reflex". The petitioners further contended that the correct answer to the question is "stretch reflex", but the expert committee constituted after objections were filed suggested answer "A", i.e., "flexor reflex" is the correct answer. Mr. Routray, learned senior counsel for the petitioners also submits that the exact question was set in the P.G. Entrance Examination of the year 2010, which was also challenged before this Court. Mr. Routray, learned senior counsel for the petitioners also submits that the exact question was set in the P.G. Entrance Examination of the year 2010, which was also challenged before this Court. In the said year, the suggested answer was "stretch reflex" and when some of the candidates, who answered "flexor reflex", i.e., answer "A" as correct, were denied from getting any marks for the said question. Mr. R.C. Mohanty, learned counsel for the Convenor, on the other hand, contended that as the said answer has been spelt as "stress reflex", which is not a correct answer and answer "A", i.e., "flexor reflex" is the correct answer and, therefore, the expert committee corrected the original suggested answer "B" to "A". The question no.22 was "During the recovery of the spinal shock which of the following reflex appears first ? A. Flexor reflex B. Stress reflex C. Extension reflex D. Postural anti-gravity reflex. Both the parties in support of their respective cases filed extracts from the text book of Medical Physiology by Arthur C. Guyton, and John E. Hall, which is an accepted authority in medical psychology. The said book with regard to the above question mentions that the first reflexes to return are the stretch reflexes followed in order by the progressively more complex reflexes: flexor reflexes, postural anti-gravity reflexes and remnants of stepping reflexes. This Court, therefore, finds that when the question was specific with regard to the first reflexes that appears while recovering from spinal shock, answer "A" i.e., "flexor reflex" as corrected by the expert committee is shown to be demonstratively wrong. The only correct answer to the above question appears to be "stretch reflex" which was never suggested as one of the answers. In view of the above, all the candidates are entitled to get full marks for this question. Question No. 86 The allegation is made that the word "clarification" mentioned in the question is wrong and it should have been "classification". Reference is made to the text book of forensic medicine and toxicology by Krishnan and Modi's text book of medical jurisprudence and toxicology. As contended by the petitioners, the question should have been Gordon's "classification of death" and not "clarification of death". As it is demonstratively shown that the question becomes ambiguous due to the spelling mistake, all the candidates should be awarded with full marks. As contended by the petitioners, the question should have been Gordon's "classification of death" and not "clarification of death". As it is demonstratively shown that the question becomes ambiguous due to the spelling mistake, all the candidates should be awarded with full marks. Question No. 155 The allegation is made that the question involves a wrong spelling. Instead of "corclinoma", it has been spelt as "carcelinoma". The question is type of "corclinoma" lung responding best to chemotherapy. The spelling mistake being such, which will mislead the candidate in answering the question, all candidates should be awarded full marks for the question. Question Nos. 247, 271, 246, 159, 84, 261, 03, 133, 76, 91, 110, 231, 18, 41, 179, 284, 60, 156 and 186, The spelling mistakes alleged in these questions appear to be clearly printing errors and very much understandable by the candidates. Therefore, the allegation in respect of the aforesaid questions that the candidates were misled by such printing error cannot be accepted. Question Nos. 69, 161, 36, 169, 38, 67, 141, 216, 177, 278, 81, 57, 124, 137, 37, 158, 197, 224 & 280. On examining the spelling mistakes alleged by the petitioners to be appearing in the suggested answers in the above questions it is found that the said printing mistakes are very much understandable by the candidates and hence no interference in this regard is called for. 15. The above conclusions of this Court are based on the ratio of the case of Chandan Mishra and others v. Convenor, M.B.B.S./B.D.S. Selection Board and others, 77 (1994) CLT 624. In the said case, dealing with similar allegations with regard to the wrong printing of the question and/ or the answers, in agreement with the submissions made on behalf of the petitioners therein, this Court concluded that there should not be any printing error, but the contention that the candidates were confused and/or prejudiced, was not accepted basing on the experts appointed by the Court, who found that the errors were of such character that any average student can know what the correct word was and would not be confused. In the facts of this case also, as concluded above, many of the questions alleged to be suffering from printing mistakes/spelling mistakes are either understandable or intelligible and will not create any confusion or prejudice to the candidates in any manner, as found above. 16. In the facts of this case also, as concluded above, many of the questions alleged to be suffering from printing mistakes/spelling mistakes are either understandable or intelligible and will not create any confusion or prejudice to the candidates in any manner, as found above. 16. As already stated, it is a settled law that the Court being not an expert in technical matters, should not ordinarily sit on judgment over the views of the examiners. But if the expert body takes a view, which no reasonable person would take, the Court should interfere and if the procedure or system is demonstratively unreasonable and operates harshly, it would not be legitimate to contend that the Court should hold its hand and refuse to interference. 17. The second type of question against which objection has been raised is alleged to be out of MBBS Course contrary to Clause - 9.3 of the Prospectus. Mr. Routray, learned counsel submitted that one question is of this type, i.e., question No.33. However, neither the syllabus of MBBS Course referring to the said subject nor any other materials have been produced before this Court to show that the said question was out of course. The contention raised by the petitioner therefore is unacceptable. 18. With regard to the questions set in deviation of Clause - 9.2 and appendix II, as already observed above, the said Clause of the Prospectus cannot be treated to be mandatory and no interference is called for in that regard. 19. Coming to the last category of questions, which are objected to, alleged to be the questions having more than one correct answer or ambiguous, the said questions are, question nos. 34, 147, 152, 189, 139, 12, 15, 275 and 32. 20. However, the above nine questions alleged to be having more than one correct answers resulting in ambiguity have not been examined by any expert committee. 21. Nothing is brought before this Court by the opposite parties that the questions after being set for the entrance examination, were examined by the Admission Committee, which consists of experienced doctors and found to be rightly set with right answers suggested thereto. 22. 21. Nothing is brought before this Court by the opposite parties that the questions after being set for the entrance examination, were examined by the Admission Committee, which consists of experienced doctors and found to be rightly set with right answers suggested thereto. 22. On perusal of the above questions and various text books by recognized authors, submitted by both the parties, this Court finds that the said questions as well as answers thereto are technical in nature and the Court should not ordinarily sit in judgment over the correctness of the suggested answers, it being not the expert in such technical mattes. However, prima facie, this Court on going through the text books produced with reference to, the answers for the above questions, is satisfied that the above nine questions are required to be examined by an expert body. 23. In conclusion, therefore, this Court is of the view that out of the first category of question allegedly having spelling mistake or wrongly printed, in respect of the question Nos. 22, 86, and 155 all the candidates should be awarded full marks. 24. With regard to the last category of questions, i.e., nine questions having allegedly more than one correct answers, as observed above, this Court feels it appropriate that the said nine questions should be reconsidered by an expert committee and for that purpose, this Court constitutes a committee of experts, consisting of the Professor & HOD, Department of Medicine of SCB Medical College & Hospital, Cuttack, Professor & HOD, Department of Anatomy of MKCG Medical College & Hospital, Berhampur, Professor & HOD, Department of Physiology of SCB Medical College & Hospital, Cuttack, Professor & HOD, Department of Microbiology of MKCG Medical College & Hospital, Berhampur, Professor & HOD, Department of ENT of MKCG Medical College & Hospital, Berhampur and Professor & HOD, Department of SPM of SCB Medical College & Hospital, Cuttack. The Convenor shall place the above nine questions with the suggested answers, which have been marked as correct answers before the Expert Committee, who shall find out, if the answers suggested as correct answers, are in fact the correct answers or more than one correct answer has been suggested to any of the said questions or none of the answers suggested are correct or any of the said questions are ambiguous. If they find that the answers suggested to be the correct answer is either not the correct answer or there are more than one correct answers to any of the questions or there are no correct answers suggested or any question is ambiguous, the candidates shall be given full marks for such types of questions. The Expert Committee should examine the above nine questions in accordance with the directions issued above and give their report to the Convenor by 10th of May, 2011. Basing on the said report and the finding of this Court that all the students will be entitled to full marks for the questions indicated above, which suffered from spelling mistakes, a fresh merit list of the successful candidates shall be prepared by 16th of May, 2011 and the candidates shall be called for counselling from 27th of May, 2011 and admission shall be concluded latest by 6th of June, 2011. Shifting/extension of the last date for admission to P.G. (Medical) Course is directed keeping in view the peculiar circumstances of the case. 25. Before parting with the case, it is felt appropriate to issue further directions to the opposite party - State that from the ensuing year, i.e., from 2012 onwards, if any entrance test is held by the State for admission to P.G. (Medical) Course, the P.G. (Medical) Selection Committee shall take all care and caution to see that no printing/typographical errors appear in either the questions or the suggested answers and the questions should be clear and unambiguous having one of the suggested answers, as the most appropriately correct answer and the other answers to be incorrect or though appear to be correct, are not correct. Any deviation from this, would. be at the sole risk and responsibility of the said P.G. Admission Committee. With the aforesaid observations and directions, the writ applications are disposed of. Writ petitions disposed of.