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Gauhati High Court · body

2014 DIGILAW 576 (GAU)

Jishnu Nath v. State of Assam and Ors.

2014-05-28

B.K.SHARMA

body2014
1. Both the writ petitions on the same cause of action and raising the same issue have been heard together and are being disposed of by this common judgment and order. 2. The matter pertains to admission to the MDS course (Assam quota) in the Regional Dental College, Guwahati for the session 2014. Annexure-A to the writ petition is the educational notice, by which, applications were invited from the Dental Graduates belonging to the State of Assam for admission to the said course. Referring to said educational notice, the petitioner involved in WP(C) No. 1627/2014 has asserted that the Information Bulletin (prospectus) for All India Post Graduate Dental Entrance Examination, 2014 (AIPGDEE) is applicable to the entrance test in question. According to the said educational notice - “Admission into the Courses is subject to the approval by Ministry of Health & Family Welfare, Government of India and Dental Council of India.” 3. The candidates involved in this proceeding responded to the said educational notice by offering their candidatures and eventually the entrance test was conducted. Thereafter, results were declared by the respondent University, in which, the petitioner involved in WP(C) No. 1627/2014 stood first by securing 336 marks as against 327 secured by the respondent No. 6, who secured second position. The petitioner involved in WP(C) No. 2613/2014 obtained third position securing 325 marks. The results were declared on 13.2.2014. 4. When the matter rested thus and the candidates were awaiting admission to the course, another result was published on 14.3.2014 placing the respondent No. 6 at serial No. 1 and the petitioner in the first writ petition at serial No. 2 showing the marks obtained by them as 337 and 336, respectively. It will be pertinent to mention here that there are two seats in the MDS course (Assam quota) namely Oral and Maxillo Facial Surgery and Periodontics. The candidate at serial No. 1 is to get Oral and Maxillo Facial Surgery and the candidate at serial No. 2 is to get Periodontics. Both the petitioners and the respondent No. 6 are desirous of pursuing their MDS course in Oral and Maxillo Facial Surgery. 5. The candidate at serial No. 1 is to get Oral and Maxillo Facial Surgery and the candidate at serial No. 2 is to get Periodontics. Both the petitioners and the respondent No. 6 are desirous of pursuing their MDS course in Oral and Maxillo Facial Surgery. 5. While the writ petitioner involved in WP(C) No. 1627/2014 has questioned the re-evaluation done and thereby altering the merit positions to his disadvantage, the petitioner involved in the second writ petition, i.e., WP(C) No. 2613/2014 has questioned the use of whitener by the candidates towards altering the original answers. According to the petitioners, there being debarment of carrying any objectionable materials into the examination hall, the candidates could not have been allowed to carry whitener and then to make use of the same. It is the case of the petitioner that because of such use of whitener, the entire admission test is vitiated requiring the authority to conduct fresh selection and/or to cancel the candidatures of the candidates who carried and make use of whitener. 6. On perusal of the answer scripts of three candidates, namely, the two petitioners and the respondent No. 6, it is found that the respondent No. 6 made use of whitener and thereby altered the original answer to another one. It will be pertinent to mention here that the candidates were required to answer the questions by indicating their choices as “A”, “B”, “C”, “D” etc. and putting the same in the particular box (square). In case of there being no choice out of “A”, “B”, “C”, “D”, the candidate is required to put a cross in the box. 7. In case of the respondent No. 6, it is found that in question No. 53, originally there was cross mark in the box, but later on making use of whitener, the cross mark was erased so as to replace the same as “A”. It will be pertinent to mention here that for the correct answer in that question, 4 marks is awarded. If the said answer by making use of whitener is omitted then the respondent No. 6 would be at merit position No. 2 and the petitioner involved in WP(C) No. 1627/2014 would occupy merit position at serial No. 1 as was declared earlier. 8. If the said answer by making use of whitener is omitted then the respondent No. 6 would be at merit position No. 2 and the petitioner involved in WP(C) No. 1627/2014 would occupy merit position at serial No. 1 as was declared earlier. 8. When the matter was heard on 19.5.2014, the following questions were raised : “(1) Whether on the basis of a complaint lodged by the respondent No. 7, alleging adoption of unfair means by the respondent No. 6, the answer scripts of the candidates, including the petitioner, could have been re-evaluated without there being any prayer by the said candidates? (2) Whether the authority was empowered to go for rechecking/re-evaluation of the answer scripts in view of the clear debarment under Clause-2(V) of the AIPGDEE, 2014? (3) Whether in view of the clear conditions regarding conduct of examination, as indicated under clause 10 of the said guidelines, the candidates could have carried to the examination hall materials, including whitener, other than the permissible materials as indicated in the said clause? (4) Whether in view of the earlier results declared, in which the petitioner came to be included at SI. No. 1, the said position could have been lowered at SI. No. 2 by the authority on the basis of the rechecking/re-evaluation carried out by them?” 9. Thereafter again vide order dated 22.5.2014, the respondents were directed to file an additional affidavit in terms of the letter dated 21.5.2014 that was produced before the court. They were also to clarify about the instruction to the candidates as indicated in the Admit Card including the clarification as to whether use of whitener in the examination hall is permissible. 10. In response to the said orders, the respondents have filed an additional affidavit through the Controller of Examination and has also furnished the letter dated 28.5.2014 addressed to the learned Standing Counsel, Health Department. The letter is written by the Controller of Examination of the respondent University. As regards use of eraser, whitener, etc., the letter states -- using of eraser, whitener etc. has not been specifically mentioned in the instructions given to the candidates of MDSEE-2014, while it was mentioned that possession of any book, note, scribbling or objectionable materials in the Examination Hall will make the candidate liable for disqualification. As regards use of eraser, whitener, etc., the letter states -- using of eraser, whitener etc. has not been specifically mentioned in the instructions given to the candidates of MDSEE-2014, while it was mentioned that possession of any book, note, scribbling or objectionable materials in the Examination Hall will make the candidate liable for disqualification. So far as rechecking and/or re-evaluation of the answer scripts is concerned, it has been stated in the letter that the rules relating to rechecking and/or re-evaluation for the University examinations has been enclosed with the letter. Thus, there is no direct answer as to whether use of whitener was permissible in the examination hall and also as to whether for the particular examination, i.e., MDS course, there was any provision for rechecking and/or re-evaluation of the answer scripts. 11. The above questions will also have to be considered in the light of the fact that there was no application made by the respondent No. 6 seeking re-evaluation of her answer script. Such re-evaluation was done on the basis of a complaint lodged by two candidates, who participated in the admission test, one of which is the petitioner in the other writ petition, i.e., WP(C) No. 2613/2014. The complaint was addressed to the Controller of Examination of the respondent University alleging adoption of unfair means by the respondent No. 6 in the examination/ admission test. It was on the basis of the said application, re-evaluation was carried not only of the answer script of the respondent No. 6, but also all the candidates, who had participated in the admission test. Thereafter, the earlier results declared on 13.2.2014, in which the petitioner in WP(C) No. 1627/2014 secured first position, was done away with by re-declaring the results again on 14.3.2014, in which, it is the respondent No. 6, who occupied first position, as against second position occupied by the petitioner. 12. I have heard Mr. T.J. Mahanta, learned counsel along with Mr. H. Buragohain, learned counsel for the petitioner in WP(C) No. 1627/2014, Mr. D. Das, learned senior counsel, assisted by Mr. H. Nath, learned counsel for the petitioner in WP(C) No. 2613/2014 and Mr. D. Saikia, learned Additional Advocate General, Assam along with Mr. B. Gogoi, learned Standing Counsel, Health Department. I have also heard Mr. M.K. Crjoudhury, learned senior counsel, assisted by Mr. N. Barua, learned counsel representing the respondent No. 6. D. Das, learned senior counsel, assisted by Mr. H. Nath, learned counsel for the petitioner in WP(C) No. 2613/2014 and Mr. D. Saikia, learned Additional Advocate General, Assam along with Mr. B. Gogoi, learned Standing Counsel, Health Department. I have also heard Mr. M.K. Crjoudhury, learned senior counsel, assisted by Mr. N. Barua, learned counsel representing the respondent No. 6. I have also considered the entire materials on record. My conclusions and findings are as follows. 13. The whole controversy has arisen because of the re-evaluation that has been made pursuant to the complaint lodged by two candidates. As noted above, there was no prayer made either by the petitioner in the first writ petition or by the respondent No. 6 seeking re-evaluation of the answer scripts. In the complaint, what was alleged is that the respondent No. 6 had resorted to unfair means. The authority is empowered in this- regard to see as to whether the respondent No. 6 had adopted any unfair means or not. While doing so, the respondent-authority in its wisdom ordered for re-evaluation of answer scripts of all the candidates, which led to the present scenario. 14. In President, Board of Secondary Education, Orissa v. D. Suvankar, (2007) 1 SCC 603 , to which learned counsel representing the respondent No. 6 has referred to, the Apex Court dealing with the question of evaluation of answer papers has observed that the examiners who make the evaluation of answer papers are to be really equipped for the job. The paramount consideration in such cases is the ability of the examiner. Otherwise, the very purpose of evaluation of answer papers would be frustrated. Nothing should be left to show even an apprehension about lack of fair assessment. It was further observed that evaluation of two persons cannot be equal on golden scales, but wide variation would affect credibility of the system of evaluation. It was also held that if for the same answer one candidate gets higher marks than another that would be arbitrary. 15. The question here is as to whether the authority in the University was empowered to order for re-evaluation of all the answer scripts irrespective of any prayer made in this regard in the prescribed manner. It was also held that if for the same answer one candidate gets higher marks than another that would be arbitrary. 15. The question here is as to whether the authority in the University was empowered to order for re-evaluation of all the answer scripts irrespective of any prayer made in this regard in the prescribed manner. In the letter dated 28.5.2014, addressed to the learned Standing Counsel, Health Department and referred to above, the Controller of Examinations of the University has referred to the rules for rechecking and/or re-evaluation for the University examination. At the first instance, the question that will arise as to whether such rule for rechecking of University examination will also be applicable for the admission test. The second question is as to whether the procedure laid down for rechecking/re-evaluation was followed or not. 16. Independent of the above rules, no other rule could be produced permitting the University authority to undertake rechecking and/or re-evaluation of the answer scripts pertaining to the admission test. As indicated in the letter dated 28.5.2014, the provision for re-evaluation of the answer scripts is available for all the University examinations conducted by the respondent University. It was on that count, direction was issued to produce the relevant rules relating to the present examination. What has been produced is the rules relating to re-evaluation for the University examinations and not for the entrance test. Even if the said rule is held to be applicable, the procedure is to make application by the candidates desirous of rechecking and/or re-evaluation of the answer scripts. He or she is required to apply for rechecking/re-evaluation within 30 days from the date of publication of the results. He/she is also required to deposit the prescribed fee of Rs. 500. Thereafter, the Principal/Head of the Institution is to forward the application to the University for consideration. Along with the rules, prescribed format is also prescribed. Nothing of the sort was follows in the instant case. The University authority straight away directed for re-evaluation on the basis of the aforesaid complaint lodged by two candidates including the petitioner in the second writ petition. 17. As noted above, because of such re-evaluation, the present situation has arisen, but for which, the petitioner in WP(C) No. 1627/2014 would have continued to occupy merit position No. 1 as against merit position No. 2 occupied by the respondent No. 6. Mr. 17. As noted above, because of such re-evaluation, the present situation has arisen, but for which, the petitioner in WP(C) No. 1627/2014 would have continued to occupy merit position No. 1 as against merit position No. 2 occupied by the respondent No. 6. Mr. Mahanta, learned counsel representing the petitioner in the first writ petition has placed reliance on the Apex Court decision reported in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna, (2004) 6 SCC 714 , in which the Apex Court has held that in absence of any provision for re-evaluation of answer scripts by the Public Service Commission, which conducted the examination, the examinee did not have right to claim or demand re-evaluation. Following the said decision, this court in Devyashree Dutta v. State of Assam, 2007 (4) GLT 532, held that in absence of any rules, re-evaluation of answer scripts normally cannot be allowed. 18. As noted above, initially the answer to the particular question, i.e., question No. 53, was “no choice” and accordingly, the candidate, i.e., the respondent No. 6 had put cross mark in the answer column (box). Thereafter making use of whitener, the same was replaced by “A”. It is on this count the petitioners have questioned allowing use of whitener by the candidates. 19. While the learned counsel for the first writ petitioner has referred to the provision of AIPGDEE, 2014 so as to contend that there is no provision for rechecking/re-evaluation of the answer scripts (clause 11.5), it is the stand of the official respondents that the said AIPGDEE is not applicable and what is applicable is the particular guideline of 1998. Even if that be so, in absence of any rule permitting re-evaluation of the answer scripts, the University authority could not have ordered for re-evaluation and that too on the basis of a complaint lodged by the second writ petitioner along with another. There was no prayer on the part of the respondent No. 6 to re-evaluate her answer script. 20. In the instruction to the candidate, there was indication that possession of any book, note, scribbling or objectionable materials in the examination hall will make the candidate liable for disqualification. Referring to this provision, learned counsel for the second writ petitioner has contended that since the respondent No. 6 made use of whitener, her candidature ought to have been rejected. In the instruction to the candidate, there was indication that possession of any book, note, scribbling or objectionable materials in the examination hall will make the candidate liable for disqualification. Referring to this provision, learned counsel for the second writ petitioner has contended that since the respondent No. 6 made use of whitener, her candidature ought to have been rejected. In the circumstances, I am not inclined to accept the said prayer. 21. For all the aforesaid reasons, the first writ petition being WP(C) No. 1627/2014 is allowed interfering with the second results declared on 14.3.2014. Consequently, the results declared on 13.2.2014 shall hold the field and the candidates shall be accommodated and admitted on that basis. Consequently, the second writ petition being WP(C) No. 2613/ 2014 is dismissed. There shall be no order as to costs.