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2012 DIGILAW 290 (JK)

Zahid Safder (Dr. ) v. State & Ors.

2012-05-28

MANSOOR AHMAD MIR

body2012
1. Vide Advertisement Notice No. 1-BOPEE of 2012 dated 4th January, 2012, respondent No. 2 invited applications for admission to Postgraduate Medical Course (MD/MS/MDS)-Annexure PA. 2. Petitioner, along with other eligible candidates, applied, appeared and got D series of question booklet. Key of question papers was displayed on Website of the respondents 1 and 2. Petitioner after noticing that answers provided in the Key to seven questions is incorrect, approached the respondents 1 and 2 with representation. 3. Without having regard to the representation of the petitioner, respondents 1 and 2 declared the result and petitioner is shown to have secured 206 points whereas petitioner is entitled to 213 marks as his answers to seven questions, though not in tone with the key provided, are absolutely correct. 4. Based on the selection so made, four candidates came to be selected in the first instance; out of these three were selected for open category and one in reserved category. The last selected candidate has secured 223 marks. Thus petitioner had no occasion to challenge the selection, as he would not overtake the last selected candidate, even if his contention of having secured 213 marks is taken to be true. 5. Respondents 1 and 2 have kept the remaining eight seats unfilled because the said seats were to be filled up only after the approval of Ministry of Health and Family Welfare is accorded. The petitioner further submits that respondents 1 and 2 contemplate to fill up the said eight seats by selecting five candidates from the open category and three from the reserved category and as per the belief of the petitioner, the five candidates who are likely to be selected from amongst the open merit category candidates have secured marks between 206 to 215. 6. The petitioner further contends that he is entitled to 213 marks after taking into consideration his answer to seven questions as correct. The petitioner prays that respondents be directed to examine the representation of the petitioner by the body of experts and thereafter re-assess the meri t of petitioner take all such answers into account for award of marks that have been correctly answered thereafter select the petitioner for admission in MDS course. 7. The petitioner prays that respondents be directed to examine the representation of the petitioner by the body of experts and thereafter re-assess the meri t of petitioner take all such answers into account for award of marks that have been correctly answered thereafter select the petitioner for admission in MDS course. 7. Respondents 3 to 8 have filed their reply and resisted the petition on variety of grounds main amongst being that representation made by the petitioner is not maintainable and respondents 1 and 2 cannot be commanded to re-assess the answer sheets of the petitioner. Answer Key is deemed to be correct unless it is proved to be wrong. 8. Mr. Khwaja during the pendency of writ petition filed a CMP No. 559/2012 and has prayed for constituting an independent committee of experts for examining the representation of the petitioner. In the said CMP, it is admitted by the petitioner that representation of the petitioner was considered and out of seven questions, two have been admitted to have been fed with wrong answers, while as the claim of the petitioner vis-a-vis the five other questions, was rejected. Accordingly, the representation was dismissed, constrained the petitioner to lay a motion for the said relief. 9. It is apt to mention herein that petitioner has not questioned the consideration made by the respondents whereby representation of the petitioner was accepted so far it relates to two questions and rejected it so far it relates to five other questions, therefore, the relief sought for by the petitioner to the effect that respondents be directed to consider the representation of the petitioner and re-assess the merit of the petitioner has become infructuous. 10. However, said CMP came up for consideration before this court and this court vide order dated 2nd April, 2012, directed the Principal Govt. Dental College, Srinagar to constitute a team of experts to examine the correctness of the answer sheets to the five questions. Principal Govt. Dental College, Srinagar submitted the compliance report along with their findings. It appears that Principal Govt. Dental College, Srinagar has not constituted the team of exerts but has referred the same to different professors to examine those five questions and to make a finding. 11. Learned counsel for the petitioner has not disputed the method of examining the questions by the Principal Govt. It appears that Principal Govt. Dental College, Srinagar has not constituted the team of exerts but has referred the same to different professors to examine those five questions and to make a finding. 11. Learned counsel for the petitioner has not disputed the method of examining the questions by the Principal Govt. Dental College, Srinagar and even learned counsel for respondents 1 and 2 has not contested the same. However, learned counsel for respondents 3 to 8 argued that direction supra passed by this court is not in accordance with law and even the findings returned are not in tone with the said direction. 12. Petitioner has annexed with the writ petition, Annexure PC, which indicates that dispute relates to question 117 and 134 contained in paper 1 series D and question No. 117 and question 83,123 and 138 in paper 2 series D. According to the finding submitted by the Principal Govt. Dental College, Srinagar, question No 117 and its answer fed in the key as also given by the petitioner are wrong. It further says that answer provided in the key as also given by the petitioner to question No. 134 is incorrect. 13. Now coming to paper 2 series D, the answers to the questions 83 and 123 provided in the key have been certified to be correct, and the answers given to it by the petitioner, are incorrect. The actual answer to question No. 138, as per the answer books and the findings recorded by the Principal Govt. Dental College, is 4.4. The question No. 138 is a tricky one. The options provided in the key to the said questions were 3, 5, 7 and 10. The answer of the petitioner to the said question, as per the findings of the Principal Govt. Dental College, Srinagar is incorrect. 14. Now the question is as to whether the petitioner is entitled to any relief. Apex Court in case titled Kanpur University through Vice Chancellor & Ors versus Samir Gupta and others AND State of U.P. and others versus Samir Gupta and others, reported as 1983, SCC (IV) 309 has held that when the answer given by the candidate is wrong, candidate is not entitled to benefit of marks even if the answer supplied by the respondents in their key is wrong too. 15. 15. The same view has been taken by the Apex Court in case titled Abhijit Sen and others versus State of U.P. and others reported as 1984 (II) SCC 319 . 16. The Division Bench of this court also in case titled Competent Authority Entrance Examination, Jammu and Kashmir Srinagar through its Chairman, Civil Secretariat, Srinagar and anr. versus Wasim Ashraf and others reported in 1997 KLJ, 435, has laid down the same principle. 17. The Supreme Court in a recent case titled reported as 2008 (4) SCC 273 , & in 2005 (2) SCC, 65 laid down the same principle. 18. Before proceeding further, it needs to be pointed out here that petitioner has not sought any relief against the respondents 3 to 8. The petitioner has not, in view of subsequent developments, sought leave to file an amended writ petition to seek appropriate relief as discussed above. 19. Having glance of the above discussion, petitioner is held not to be entitled to any relief. The writ petition fails on merits, therefore, dismissed. However, it pains me to make mention of the fact that Respondent-Board has been really callous in its affairs. It is the errors of the respondent-board that gave reason to petitioner to be aggrieved; dispatch a representation in the first instance and thereafter file a writ petition too. Respondent-Board being entrusted with a highly sensitive job, cannot be expected and allowed to conduct its affairs in such a careless way as is depicted in the case in hand. The irony is not that the respondent-Board has fed wrong answers in the KEY, but the fact that they stood by their wrong even after petitioner represented against it. It is just per chance that this court has noticed such startling omissions committed by the respondent-Board and who knows this may be one of the thousands of such instances, and if it is so then God may save this nation. 20. Having said so, I hope and trust that an endeavour is made by the State Govt. to see that the respondent-board, which is performing a highly sensitive job, functions in a more dignified way, so that candidates do not suffer unnecessarily and the mistakes of such a grave nature are avoided to recur 21. With these observations, the writ petition is dismissed, vacating the interim directions. 22. to see that the respondent-board, which is performing a highly sensitive job, functions in a more dignified way, so that candidates do not suffer unnecessarily and the mistakes of such a grave nature are avoided to recur 21. With these observations, the writ petition is dismissed, vacating the interim directions. 22. Registry is directed to send a copy of this judgment to the Chief Secretary and Advocate General of the Sute for compliance.