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2015 DIGILAW 502 (JK)

Pankaj Sharma v. State

2015-09-21

TASHI RABSTAN

body2015
ORDER : Tashi Rabstan, J. 1. The petitioner through the medium of present petition is seeking a direction to the respondents to re-evaluate her OMR Answer Sheet, Paper-II of MD/MS/PG Diploma and MDS Entrance Test 2015 after treating option "B" instead of "A" inadvertantly filled-in by the petitioner against Column "Question Booklet Series" in the said sheet. The facts-in-brief are that the petitioner after having done MBBS from Government Medical College, Jammu applied for MD/MS/PG Diploma course in pursuance of Advertisement Notification No. 01-BOPEE of 2015 dated 8-1-2015. Thereafter, the petitioner appeared in the examination held on 15th March, 2015. It is averred that during the second session, the petitioner was provided Question Booklet Series "B" with Question Booklet No. 520198. In the OMR Answer Sheet where the petitioner had to fill-in the answers, it is averred due to oversight and inadvertence, instead of mentioning "B" against the Column of Question Booklet Series, the petitioner filled "A" and proceeded to solve the questions on the OMR Answer Sheet. 2. The grievance of petitioner is that in the result declared on 2-4-2015 she has been awarded 93 marks in Paper-I, whereas only 34 marks have been awarded to her in Paper-II due to wrongly/inadvertently mentioning as "A" against the column of Question Booklet Series. It is averred in the petition that immediately after declaration of the result, the petitioner approached respondents 2 to 4 with a request to re-evaluate her OMR Answer Sheet of Paper-II after taking Question Booklet Series as "B" instead of "A." Her case was that as per the answer key published, she would have actually been awarded 88 marks in Paper-II, but due to inadvertently mentioning the wrong Question Booklet Series, she has been awarded only 34 marks in the said paper. The respondents, however, refused to entertain the request of petitioner. Hence the present writ petition. 3. The contention of learned counsel for petitioner is that the petitioner was otherwise required to be awarded 88 marks in Paper-II if the petitioner would not have inadvertently mentioned "A" instead of "B" against the column of Question Booklet Series. He further contended that the Invigilators and Deputy Superintendent in the examination centre were equally responsible in not ensuring that the petitioner had not rightly filled-in in the relevant particular on the OMR Answer Sheet of Paper-II. 4. He further contended that the Invigilators and Deputy Superintendent in the examination centre were equally responsible in not ensuring that the petitioner had not rightly filled-in in the relevant particular on the OMR Answer Sheet of Paper-II. 4. Objections have been filed on behalf of respondents 2, 3 and 4. The plea taken in the objections is that the case of petitioner has been rejected vide Order No. 209-BOPEE of 2015, dated 9-6-2015 after the same was found bereft of any merit in view of the rules, notifications and instructions on the subject. It is contended that the whole process of evaluation of OMR Answer Sheets is mechanical, and no manual process is involved to ensure total impartiality, therefore, there is no provision or scope for re-evaluation. It is contended that it was the primary duty of petitioner to fill-in the correct particulars in the OMR Answer Sheet. While rejecting the claim of petitioner, the respondents have also relied upon a judgment of the Apex Court in case, titled as. The Secretary, All India Pre-Medical/Pre-Dental Examination, CBSE v. Khubshoo Shrivastava, 2011 (5) Supreme 609 , holding that in absence of any provision for re-evaluation of answer books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his/her marks. 5. Heard learned counsel appearing for the parties and perused the writ record. 6. Indisputably, while appearing in the second session of examination for MD/MS/PG Diploma Course on 15-3-2015, instead of mentioning "B" against the column of Question Booklet Series in the OMR Answer Sheet, the petitioner inadvertently filled-in "A." It is also not in dispute that she has been awarded 93 marks in Paper-I, whereas only 34 marks has been awarded to her in Paper-II due to inadvertent act on the part of petitioner. It has also not been disputed that had the petitioner written right Question Booklet Series in Paper-II, she would have got 88 marks as per the answer key published by the respondent-Board. 7. No doubt it was the primary duty of petitioner to have written the right particulars in the OMR Answer Sheet, but the respondent-Board too cannot be absolved of its responsibility in ensuring whether the candidates have given correct information/particulars or not. This is also a part of examination process. 7. No doubt it was the primary duty of petitioner to have written the right particulars in the OMR Answer Sheet, but the respondent-Board too cannot be absolved of its responsibility in ensuring whether the candidates have given correct information/particulars or not. This is also a part of examination process. The petitioner, therefore, cannot be solely held liable for her inadvertent act in filling-in the wrong Question Booklet Series, the respondent-Board too owe responsibility for the same in view of the note appended at the bottom of OMR Answer Sheet. It would be relevant to reproduce the same hereunder: "Invigilator and Deputy Superintendent to ensure that the candidate has given correct information regarding Roll Number, No. of Questions Attempted, Booklet No. and Series." 8. In the said note, it has specifically been mentioned that the Invigilator as well as Deputy Superintendent to ensure whether each and every candidate has written the correct Booklet Number and Series. Therefore, their purpose was not only limited to circulate question papers/answer sheets and collect them back, rather they had a key role in upholding the integrity of the examination process, which certainly they lacked in the instant case. The respondent-Board, therefore, cannot be allowed to escape of its responsibility by holding the petitioner solely liable for her inadvertent act and saying that the whole process of evaluation of OMR Answer Sheets is mechanical/machine graded, therefore, there is no procedure for re-checking the paper of petitioner. 9. Now I take it otherwise, that what would have happened if the petitioner would have got highest marks in Paper-II due to wrong mentioning of Question Booklet Series, than what she would have actually been awarded if she would have filled-in the right Question Booklet Series. Even in such a situation whether the respondent-Board would have sticked to the same stand which it has taken here that it could not re-check the paper because of procedural bindings and, instead, allotted MD course to the petitioner being the most meritorious candidate. Obviously the answer would have been not. 10. Even in such a situation whether the respondent-Board would have sticked to the same stand which it has taken here that it could not re-check the paper because of procedural bindings and, instead, allotted MD course to the petitioner being the most meritorious candidate. Obviously the answer would have been not. 10. Even a Division Bench of this Court on 26-5-2015 while disposing of LPAOW No. 25/2015 filed by the respondent-Board against the writ petitioner observed that the respondent-Board ought not to have made it a prestige issue as regards the petitioner, rather it must deal the grievance of petitioner in an objective and dispassionate manner so that she could not be penalized for her bona fide error and whatever due to her should be given. 11. I have also gone through the judgment relied upon by the learned counsel for respondent-Board in case Secretary, All India Pre-Medical/Pre-Dental Examination (supra). In my view the same does not apply to the facts of present case. In the said case it has been held that in absence of any provision for re-evaluation of answer books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his/her marks. Whereas, the present case is on different footing. In the present case, the dispute is with regard to mentioning of wrong Question Booklet Series. Here, the correct Question Booklet Series of Paper-II was "B", whereas the OMR Answer Sheet of Paper-II of the petitioner was not evaluated against the Question Booklet Series "A"; meaning thereby the answers given by the petitioner pertained to the questions mentioned in Question Booklet Series "B", but while evaluating her Paper-II, questions of Question Booklet Series "A" were taken. In the given circumstances, how the question of re-evaluation would arise, when her OMR Answer Sheet of Paper-II was not at all evaluated by taking right questions. 12. This Court vide order dated 7-5-2015 had directed that in case the petitioner is found entitled to additional marks in Paper-II, she would be entitled to allocation of seat in accordance with her merit, even if the same results in disturbing the order of selectees. Therefore, in view of the discussion made above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed. Therefore, in view of the discussion made above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed. Since vide order dated 10-4-2015 respondents were directed not to complete the selection process, respondent-Board is directed to evaluate the OMR Answer Sheet of Paper-II of the petitioner while taking the Question Booklet Series "B" instead of "A". Thereafter, the respondents are directed to redraw the merit of petitioner and proceed accordingly in accordance with her merit position. Consequently, Order No. 209-BOPEE of 2015, dated 9-6-2015 issued by Under Secretary, J & K Board of Professional Entrance Examination, is hereby quashed. Let this exercise be completed within a period of two weeks from the date of copy of this judgment is provided by the petitioner to the respondents against proper receipt.