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2011 DIGILAW 311 (ORI)

CHITTARANJAN THATEI v. STATE OF ORISSA

2011-05-19

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT : V. Gopala Gowda, CJ. 1. Heard Mr. S.K. Padhi, Mr. A.K. Parija, Mr. J. Patnaik & Mr. B. Routray, learned Senior Advocates for the appellants in W.A. Nos. 306, 309, 310, 313 of 2011 respectively and Mr. D.K. Moahapatra, Learned Counsel appearing for the appellants in W.A. Nos. 322 & 324 of 2011 and heard Learned Counsel Mr. R.C. Mohanty on behalf of the D.M.E.T. and Medical Council of India. 2. Writ Appeal Nos. 309 and 310 of 2011 are filed by the appellants namely, the selected and admitted candidates of in-service quota in Post Graduate Medical Course. Being aggrieved with the common impugned judgment dated 27.04.2011 passed by the learned Single Judge in W.P.(C) Nos. 7132, 8408, 8573, 8654, 8655, 8934, 9182, 9423 and 9595 of 2011, they have filed these appeals as they are aggrieved of the direction given to the Director, Medical Education and Training, Orissa-cum-Chairman, Post Graduate (Medical) Selection Committee, 2011 (in short, DMET) to re-evaluate 9 questions out of 63 questions in respect of which objections were raised and 3 questions and key answers were found to be not correct, and directed the DMET to award full marks to all the candidates who appeared in the entrance examination and accordingly, draw up the merit ranking list for the purpose of conducting counseling and admitting them in the respective subjects for which they are entitled to as per the prospectus. 3. The appellants in W.A. Nos. 306 and 313 of 2011 are the writ petitioners, who are aggrieved with that portion of the judgment of the learned Single Judge in not referring the questions namely, 38 questions and key answers out of 63 questions except 9+3 questions and key answers by not accepting their objections regarding spelling/printing mistakes in the questions and key answers is not correct to that extent the appellants are aggrieved. Therefore, they pray in these appeals to send the 38 questions and key answers for opinion of the 2"'1 Expert Committee appointed by the D.M.E.T. contending that the reason assigned by the learned Single Judge in this regard in not accepting the same, they are affected. Therefore, they have also challenged that portion of the judgment of the learned Single Judge seeking the modification of the impugned judgment to include 38 questions and key answers and refer the same to the 2nd Expert Committee for its valuation. 4. Therefore, they have also challenged that portion of the judgment of the learned Single Judge seeking the modification of the impugned judgment to include 38 questions and key answers and refer the same to the 2nd Expert Committee for its valuation. 4. In the appeals, namely, W.A. Nos. 306 & 309 of 2011 arising out of W.P. (C) Nos. 7132 and 8573 of 2011, five in-service candidates filed two Misc. Cases in Court today seeking permission of this Court to come on record to avail the benefit of direction issued by the learned Single Judge insofar as 9+3 questions out of 63 questions in respect of which they raised objections in the writ petitions and that must not only be confined to 41 seats which are left out, and it should be 80 seats, which are earmarked for the in-service candidates in the Post Graduate Course. As one of the interveners, namely Dr. Nihar Ranjan Parida, who has secured 10th rank as in-service candidate in respect of 12 questions and key answers the full marks are awarded as directed by the learned Single Judge his ranking along with other candidates will go up and he will get better choice of the subject, for the reason that the provisional admission of the candidates, who are appellants in WA Nos. 306 and 309 of 2011 is subject to result of the writ petitions is the interim order passed by the learned Single Judge and that order is merged with the order passed on merits. Therefore, the benefit of that judgment should enure to the benefit of the first intervener with regarding to choosing the subject in the course. Therefore, they wanted to come on record as additional respondents in the above referred appeals. 5. Having regard to the undisputed fact that the petitioners had benefit of the judgment of the Single Judge in so far as 9+3 = 12 questions out of 63 questions and key answers in respect of which the objections regarding the correctness of the same was raised, which is accepted by the learned Single Judge, therefore, in our considered view they are proper and necessary parties to the proceedings. Accordingly, they are permitted to come on record. Learned Counsel for the appellants in W.A. Nos. Accordingly, they are permitted to come on record. Learned Counsel for the appellants in W.A. Nos. 306 & 309 of 2011 are directed to implead them as additional respondents by suitably amending the cause title of the respective writ appeals. Registry is directed to register the said Misc. Cases. Accordingly, the Misc. Cases are allowed. 6. Insofar as the appellants in W.A. Nos. 322 and 324 of 2011 are concerned, they are in-service candidates. They are questioning the impugned order as the learned Single Judge had not considered their case in the writ petitions. Their case is that the procedure for conducting entrance examinations by the DMET was not followed in setting the question papers in terms of the prospectus, their request has been rejected by the learned Single Judge and therefore, they have requested this Court to grant the relief as prayed by them and award 12 grace marks not only to those appellants, but also to other candidates who have taken the entrance examination. Insofar as the prayer of these appellants are concerned, the same is not accepted by the learned Single Judge by recording reasons in the impugned order. We are also concurring with the view of the learned Single Judge. Therefore, we do not propose to examine the correctness of the same for the reason that they have subjected to the jurisdiction of the entrance examination without raising objections in not following the procedure in setting the questions & key answers for the entrance examination. They did not raise any objection at the initial stage contending that setting up of the question and key answer papers is not in conformity with the prospectus, therefore, it will not be proper for this Court to interfere with the same at this stage as this aspect must have been weighed in the mind of the learned Single Judge in not granting the relief to the above appellants. For the foregoing reasons, we do not find any reason to disturb that portion of the judgment of the learned Single Judge. Accordingly, the appeals in W.A. Nos. 322 and 324 of 2011 are liable to be dismissed and accordingly, dismiss the same as there is no merit in the same. 7. It is brought to our notice by Mr. For the foregoing reasons, we do not find any reason to disturb that portion of the judgment of the learned Single Judge. Accordingly, the appeals in W.A. Nos. 322 and 324 of 2011 are liable to be dismissed and accordingly, dismiss the same as there is no merit in the same. 7. It is brought to our notice by Mr. R.C. Mohanty, Learned Counsel for Medical Council of India and DMET that out of 80 seats reserved for various subjects in the P.G. Medical Course to the in-service candidates, 41 seats are available in the in-service quota. The said seats will be allotted to those candidates, who will secure the revised ranking on the basis of evaluation of the questions in relation to 9 questions pointed by the learned Single Judge and opinion rendered by the 2nd Expert Committee and also in respect of 3 questions, marks have already been awarded as per the direction of the learned Single Judge to the in-service candidates by preparing a revised merit ranking list. 8. Mr. Padhi and Mr. B. Routray, learned Senior Advocates appearing on behalf of the appellants in W.A. Nos. 306 and 313 of 2011 submit that Dr. Chitta Ranjan Thatei and Dr. Nagendra Kumar Rajsamanta, appellants Nos. 1 and 5 in the respective appeals have filed affidavits in which it has been stated as hereunder: 3. That, the present appellants do hereby undertake that they will not challenge the 39 seats and the subject allotted those 39 candidates of the in service quota in the P.G. Medical Selection, 2011. They will also not challenge to disturb the position of the candidates who have already taken admission in the event this Hon'ble Court directs from reassessment of the defective question to the expert committee and the same order will be confined to as against 41 seats lying vacant under the in service category. 9. The statement is made at the Bar by learned Senior Advocate Mr. Padhi and Mr. Routray stating that two affidavits filed by the two appellants, who have also stated on behalf of the other appellants and further submitted by them that the other appellants will file affidavits swearing to the facts as stated by the two appellants by Monday (23.05.2011). The statement is made at the Bar by learned Senior Advocate Mr. Padhi and Mr. Routray stating that two affidavits filed by the two appellants, who have also stated on behalf of the other appellants and further submitted by them that the other appellants will file affidavits swearing to the facts as stated by the two appellants by Monday (23.05.2011). If the other appellants do not file their affidavits in the similar lines as that of the affidavits filed today by the aforesaid two appellants, the order that will be passed in relation to 38 questions will not enure to their benefit. The appellants who have filed affidavits today have given assurance to this Court that they will also file memo giving undertaking that they will see that the other appellants also would file their affidavits swearing the facts on the similar to the affidavits filed by the above two appellants by Monday. The memos are taken on record and the Registry must receive the said memos and affidavits and shall place on record in these appeals. 10. In view of the said affidavits, the interest of the candidates who have already been selected and admitted in the respective subjects will not be disturbed. Therefore, the grievances of the appellants in W.A. Nos. 309 and 310 of 2011 don't survive for consideration. Accordingly, the said appeals are disposed of as they cannot have any grievance insofar as the judgment passed by the learned Single Judge, as their selection and admission in the Post Graduate Course to the respective subjects is protected. 11. Our attention was invited by Mr. Padhi and Mr. Routray, learned Senior Advocate to paragraphs 12 and 13 of the impugned judgment, wherein it is indicated that 63 questions in respect of which objections have been raised category wise contending that the key answers to the said questions out of 300 questions in the key answer booklet furnished to them are found to be incorrect and on the basis of that, the candidates were mislead due to the printing/spelling errors in respect of key answers to the question Nos. 247, 271, 246, 159, 84, 261, 03, 133, 76, 91, 110, 231, 18, 41, 179, 284, 60, 156, 186, 69, 191, 36, 169, 38, 67, 141, 216, 177, 278, 81, 57, 124, 137, 37, 138, 197, 224 and 280 and in other questions and key answers also there are printing mistakes, on account of which there was spelling mistake in the questions and key answers set out in the answer booklets furnished to the candidates, therefore, they were unable to answer the same correctly. It is contended by them that as per the Division Bench of this Court in the case of Dr. Pranab Mohapatra and Others Vs. State of Orissa and Others, and in the case of Pankaj Sharma Vs. State of Jammu and Kashmir and Others, At paragraph 49 of the said decision the Supreme Court in the similar facts situation has made observation that: ...In the absence of such record, it cannot be accepted that the printing errors/spelling mistakes in the question papers were duly rectified by actual announcements in the examination centers. Therefore, all the questions which have wrong spellings of the words used therein have to be treated as wrong questions. In all, there are 12 such questions in Sociology paper i.e. Q. 17, 37, 46, 53, 60, 72, 73, 83, 93, 97, 98 and 113 with printing errors/spelling mistakes. Out of these questions the Commission itself has deleted Q.113. In Q. 113 there was printing error in the word "Kwekiuti". *** Therefore, with reference to the said facts situation, the stand taken by the Commission that the questions having major printing errors or those which had not been corrected by announcement were deleted is equally unacceptable. 12. Therefore, the learned Senior Advocates Mr. Padhi and Mr. Routray submit that the decisions of this Court and the Apex Court referred to supra to the questions and key answers in respect of the cases of the appellants in W.A. Nos. 306 and 313 of 2011, the learned Single Judge was not right in not accepting their case in total, only accepted twelve questions out of 63 questions holding that the above questions and key answers are not correct and therefore, the directions issued to the DMET to get the 9 questions revaluated by the 2nd Expert Committee and accordingly award marks in respect of those questions to all the candidates and prepare revised merit ranking list. By recording the reasons in the impugned judgment, particularly not accepting 38 questions at the last portion of the paragraph 14 at page 16 in the impugned judgment is contrary to the law laid down by the Supreme Court and this Court in the aforesaid cases. Therefore, they have requested this Court to add 38 questions out of 63 as required to be revaluated by the 2nd Expert Committee, which was constituted by the D.M.E.T. in pursuance of the direction of the learned Single Judge in the impugned judgment. The said contention has been seriously contested by Mr. Mohanty, Learned Counsel appearing for DMET contending that they have not complied with the provision under clause 10, 17 of the prospectus and have not raised the objection within seven days from the date of putting all these questions and answers in the website. Therefore, they are not diligent in questioning the action of the DMET in setting the questions and key answers in the answer scripts. Therefore, they are not entitled for the relief prayed for in their appeals. The learned Single Judge by recording valid and cogent reasons at paragraph 14 of the impugned judgment has rejected their case in respect of 38 questions. Therefore, he submits that there is no substantial question of law involved in their appeals as the learned Single Judge by consciously applying his mind with reference to rival and legal contentions and examining the documents which are made available before him after perusal of the evaluation of the marks and the evaluation made by the Expert Committee, the learned Single Judge was satisfied that the printing mistakes in respect of certain questions and key answers have been pointed by the appellants/petitioners in the writ petitions which were accepted but those questions (38 in numbers) were not referred to the 2nd Expert Committee, as he was not satisfied with the observations raised in respect of those questions and answers. Therefore, the Learned Counsel submits that the writ appellants in W.A. Nos. 306 and 313 of 2011 are not entitled to the relief as there is no merit in the said appeals. 13. Therefore, the Learned Counsel submits that the writ appellants in W.A. Nos. 306 and 313 of 2011 are not entitled to the relief as there is no merit in the said appeals. 13. With reference to the aforesaid rival and legal contentions, we are required to answer the following points that would arise for our consideration: (i) Whether the printing mistakes in 38 questions out of 63 questions and key answers are understandable by the candidates at the time of answering those questions as held by the learned Single Judge in the impugned judgment are legal and valid ? (ii) Whether for non-consideration of 38 questions by the learned Single Judge in view of the law laid down by the Division Bench of this Court and the Supreme Court, referred to supra, relied by the learned Senior Advocate for the appellants, the substantial question of law would arise in W.A. Nos. 313 and 306 of 2011 on that ground, this Court can interfere with the appeals filed by the unsuccessful candidates insofar as the aforesaid questions and key answers are concerned ? (iii) What order ? 14. The aforesaid two points are required to be answered in favour of the appellants in W.A. Nos. 306 and 313 of 2011 for the following reasons: The aforesaid points are answered keeping in view the legal position and observation made by the Division Bench of this Court as well as the law laid down by the Supreme Court in the cases referred to supra upon which reliance has been rightly placed by both the learned Senior Advocates appearing on behalf of the appellants. The relevant portion of paragraph 49 of the decision of the Supreme Court is extracted in paragraph-9 of this judgment for proper appreciation of the legal contention urged by learned Senior Advocate. The Division Bench of this Court and the Supreme Court in similar facts situation, rejected the stand and defence taken by the Learned Counsel for the DMET and held that the printing mistake is a spelling mistake in the key answers which are certainly wrong answers to the questions. 15. The Division Bench of this Court and the Supreme Court in similar facts situation, rejected the stand and defence taken by the Learned Counsel for the DMET and held that the printing mistake is a spelling mistake in the key answers which are certainly wrong answers to the questions. 15. Therefore, the reason given by the leaned Single Judge, in the impugned order in so far as 38 questions are concerned out of 63 questions in our considered view, is contrary to the decisions of the Supreme Court and the Division Bench of this Court referred to supra as those decisions are aptly applicable to the facts situation of the case of the appellants. Therefore, that portion of judgment of the learned Single Judge which is at paragraph-14 of the said judgment in relation to non-acceptance of objections raised by them in relation to 38 questions referred to in the judgment and not referring the same to the 2nd Expert Committee for its evaluation is not tenable in law. Therefore, we are required to accept the legal contention urged on behalf the appellants and the same must be accepted as it is well founded in view of the decisions referred to supra upon which they have rightly placed reliance. Therefore, it would be just and proper for us to include these 38 questions in addition to 9 questions referred to the 2nd Expert Committee which was directed by the learned Single Judge to be constituted. Non-consideration of 38 questions in the light of the decisions referred to supra by the learned Single Judge certainly is not sustainable in the eye of law. The substantial question in these appeals would certainly arise for the reason that the learned Single Judge erroneously not accepted the objections to the 38 above questions. Therefore, we have to answer point no. 2 in favour of the appellants. Accordingly, Writ Appeal Nos. 306 and 313 of 2011 are allowed. 16. Insofar as the contentions raised by the Learned Counsel for DMET and MCI is that the appellants are not availing the privilege given in Clause 10.17 of the prospectus, by not raising objections to the questions and key answers within seven days, and they were uploaded to the Website. This contention cannot be accepted for the reasons that we have already answered Point Nos. This contention cannot be accepted for the reasons that we have already answered Point Nos. 1 and 2 for non-consideration of 38 questions by the learned Single Judge even though as undisputedly there were printing and spelling mistakes in the key answers given by the paper setters. Therefore, the technical contention urged by the Learned Counsel cannot be accepted for the reasons that there is infringement of a substantive right of the candidates as they were unable to answer to the questions on account of fact of spelling mistake and on account of wrong printing, which has occurred in the key answers to the questions thereby prejudice is caused to them. The 300 questions were required to be answered by the candidates, wherein each question is to be answered within 47 seconds. Negative marks would be awarded if the wrong answer is given in the examination by a candidate. Apart from that, by not raising objection till the selection process is completed, the appellants have not lost their right as the last date for admission to the P.G. Medical Course is the relevant fact to be taken into consideration by the learned Single Judge, which cannot be found fault with by this Court as the learned Single Judge has rightly interfered with the arbitrary and unreasonable action of the DMET in giving wrong questions and key answers in the answer booklets, which has resulted in injustice to the appellants in the said appeals and other candidates. Therefore, this Court has granted relief rejecting the contention urged on behalf of the DMET that Clause 10:17 of the prospectus is not complied with by them as we are concurring with the view taken by the learned Single Judge in exercising his power and granting the relief to the appellants in respect of 9+3 questions and key answers. In addition to the said questions we also further include 38 questions referred to supra for the opinion of the 2nd Expert Committee appointed pursuant to the direction of the learned Single Judge to evaluate the same afresh by it and on the out come of its opinion, the DMET shall proceed in the matter to prepare the merit ranking list. 17. For the reasons stated supra, the writ appeals in WA Nos. 17. For the reasons stated supra, the writ appeals in WA Nos. 306 and 313 of 2011 must succeed to the extent that 38 questions out of 63 questions, which are referred to supra, shall be referred to the 2nd Expert Committee for the purpose of re-evaluation and upon their evaluation the marks shall be awarded not only to the appellants, but also to ail other candidates depending upon the opinion that will be furnished by the 2nd Expert Committee. 18. On the basis of such merit ranking list which shall be prepared after receipt of the opinion of the 2nd Expert Committee in relation to 38 questions along with 9 questions of which already the opinion is rendered and 3 questions as pointed out by the learned Single Judge and award of marks permitted on the basis of ranking admission to the left out 41 seats (in-service candidates) by conducting counseling and allot seats to the candidates as per the merit and subject wise which are available in accordance with law. Steps should be taken to consider the case of the candidates belonging to in-service category. 19. It is also needless to give direction to the DMET insofar as the intervener Dr. Nihar Ranjan Parida in the above appeals is concerned, since there is an interim order in the writ petitions stating that the admission of the candidates on the basis of ranking list prepared which was challenged in the writ petition by him and others is concerned, 9 + 3 and other 38 questions as ordered in this appeals are required to be revaluated and marks to be awarded to all the candidates that may be taken care of and if the 1st Intervener-applicant gets more marks then the DMET may allot an appropriate subject to the said intervener on the basis of revised ranking list that will be published as he is entitled for that. Insofar as other four interveners are concerned, their cases may be considered against 41 seats in-service quota, which are lying vacant on the basis of directions issued by the learned Single Judge and in respect of other questions ordered by this Court in the above appeals. 20. The submission of Learned Counsel Mr. Mohanty is that a general candidate namely, Dr. 20. The submission of Learned Counsel Mr. Mohanty is that a general candidate namely, Dr. Pitambar Behuria who is a respondent in WA No. 310 of 2011 was having the highest marks amongst the appellants and respondents of the writ appeal and 68th rank in the first merit list, but has not taken admission as a seat in Medicine was not available to him at that point of time, but as five seats in Medicines are available out of 41 seats for in-service category, he can be admitted to the discipline of medicine and this may be considered accordingly. The submission is placed on record. 21. The 2nd Selection Committee which was appointed pursuant to the order of the learned Single Judge must evaluate the 38 questions referred to in this judgment as expeditiously as possible well in advance before the dead line fixed by the Medical Council of India for selection and admission to the P.G. Medical Courses, the same shall be obtained by DMET on the basis of their opinion the mark shall be awarded to all the candidates and prepare the revised merit ranking list and further proceed in the matter for admitting the eligible candidates in 41 seats of in-service candidates in accordance with law. 22. With the above observation and directions, all the writ appeals are disposed of. A copy of this judgment be given to Mr. R.C. Mohanty, Learned Counsel for compliance of our directions.