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2016 DIGILAW 588 (JK)

Simran Kour v. State

2016-11-10

B.S.WALIA

body2016
JUDGMENT : B.S. WALIA, J. 1. Petitioner has sought the following relief: "(i) For issuance of an appropriate writ, order or direction in the nature of writ of Mandamus whereby directing the respondents particularly Respondents No. 2 & 4 to compensate the petitioner by awarding grace marks in view of her overall performance in the test viz-à-viz the questions she could not attempt due to the defected Question Booklet supplied to the petitioner while she was appearing for Common Entrance Test-II-2016 conducted by Respondents No. 2 & 4 on 31.7.2016. (ii) For issuance of further writ of Mandamus whereby directing the respondents to select the petitioner for undergoing the MBBS course in the Institute of Respondent No. 3, on the basis of overall performance in the test and aggregate marks awarded to the petitioner which include the actual marks secured by the petitioner as well as the grace marks, in the give facts and circumstances of the case. (iii) For issuance of any other writ, order or direction which this Hon'ble Court may deems fit in the facts and circumstances of the case may please also be issued in favour of the petitioner and against the respondents." Brief facts of the case leading to the filing of the instant writ petition are that the petitioner who cleared 10+2 examination with 95% marks appeared in the Common Entrance Test-II-2016 (hereinafter referred to as CET-II-2016) conducted by Respondent No. 2 on 31.07.2016 under Roll No. 10903507. Petitioner claims that on appearing in CET-II-2016, she was supplied question booklet Annexure C, of Series C bearing No. 310877 which was defective as the questions were not in serial order and started from No. 36. 2. Petitioner further claims that she immediately brought the aforementioned discrepancy to the notice of the room invigilator who consumed about 20 minutes in correcting the page marking on the booklet. It is relevant to note here that the booklet has page marking in handwriting at the top of each page of the booklet besides printed page marking at the bottom of each page. 3. Grievance of the petitioner is that time was consumed by the room invigilator in correcting the discrepancy by page marking the booklet resulting in her not being able to attempt all the questions except 104 out of 120 questions, thereby prejudice being caused to her resulting in her not getting selected. 3. Grievance of the petitioner is that time was consumed by the room invigilator in correcting the discrepancy by page marking the booklet resulting in her not being able to attempt all the questions except 104 out of 120 questions, thereby prejudice being caused to her resulting in her not getting selected. Petitioner alleges that despite the aforementioned position she secured 327th rank with 117.25 marks which were only 0.25 marks short of the last candidate selected. Petitioner has also attached three e-mails purportedly sent by her to the Administrator, J&K BOPEE informing of the aforementioned discrepancy and of the same having been brought to the notice of the invigilator, of the time wasted in the process, consequentially her not being able to attempt all the questions thereby not getting selected on account of falling short of 0.25% marks from the last candidate selected. However, it needs mentioning that no date is discernible on which the emails were sent. It would be relevant to note here that in the corresponding paragraph of the objections, it has been denied that petitioner made any representation or contacted any BOPEE official. 4. Learned counsel contended that each question carried one mark for a correct response while in the case of each wrong answer there was negative marking of 0.25 marks. In the aforementioned background, contention is that firstly a defect free question booklet in proper format was not supplied to the petitioner resulting in her panicking and wasting time on bringing the defective question booklet to the notice of the invigilating staff who instead of supplying her with a fresh question booklet, took approximately 20 minutes in correcting the page numbering. Consequently, time of the petitioner was wasted, resultantly, she could not attempt 16 questions and the difference in the marks secured by her and the last candidate selected being only 0.25% marks, it was apparent that had her time not been wasted, she would have been able to answer all the questions or even some of them in which case she would definitely have secured more marks than the last candidate selected. It is contended that due to supply of defective question booklet resulting in wastage of time she should be awarded grace marks etc. 5. It is contended that due to supply of defective question booklet resulting in wastage of time she should be awarded grace marks etc. 5. That at this stage it needs noticing that in Paragraph No. 3 of the writ petition it has been averred that the petitioner was supplied a defective booklet as the questions started from No. 36 instead of from Question No. 1. In the corresponding paragraph of the objections it has been mentioned that defective, defaced or damaged pages in an examination involving large number of candidates cannot be ruled out but that in order to meet any such eventuality additional 10% booklets and OMR sheets are maintained with the invigilating staff as buffer stock, besides BOPEE officials hold meetings with supervisory staff in all test centers to sensitize them about the conduct of the test with clear instructions that in case of receipt of any complaint regarding defective question booklet or OMR sheet, the same is to be replaced from the buffer stock. However supply of defective booklet on account of questions starting from No. 36 instead of Question No. 1 has not been denied. As regards the averments in Paragraph No. 4 of the writ petition that the discrepancy was brought to the notice of the invigilator who consumed 20 minutes for returning the booklet after correcting the page marking, the same has been denied in the corresponding paragraph of the objections by stating that the petitioner never raised any objection with regard to defective booklet with the invigilator and the allegation that the petitioner lost 20 minutes on account of lapse on the part of the room invigilator has also been denied as incorrect on account of there being a invigilation team comprising Chief Superintendent, Coordinator, Superintendent, Dy. Superintendent, Room Invigilator. It has also been mentioned that even the Principal of the College where the centre was located had vide letter dated 12.09.2016 submitted report Annexure R-3 from the Superintendent, Supervisor Staff and Coordinator of CET-II which clearly reflected that the petitioner had not made any complaint or representation with regard to the booklet. 6. Superintendent, Room Invigilator. It has also been mentioned that even the Principal of the College where the centre was located had vide letter dated 12.09.2016 submitted report Annexure R-3 from the Superintendent, Supervisor Staff and Coordinator of CET-II which clearly reflected that the petitioner had not made any complaint or representation with regard to the booklet. 6. That a perusal of Annexure R-3, dated 12.09.2016 reveals the stand of Coordinator CET-II that the candidate never made any complaint or representation for replacement of question booklet during the examination as well as after the conclusion of examination despite BOPEE officials visiting each and every room of the centre during conduct of the examination. 7. That the contents of Paragraph No. 3 of the writ petition containing averments that the questions started from No. 36 instead of No. 1 have not been denied. On the contrary it has been mentioned that defective, defaced or damaged question booklet in an examination where a large number of candidates appear cannot be ruled out and in order to meet any such eventuality, 10% additional question booklets and OMR sheets are maintained as buffer with the invigilating staff besides, BOPEE officials hold meetings with supervisory staff in all test centers to sensitize them about the conduct of the test with clear instructions that in case of any complaint of defective question booklet or OMR sheet, the same is to be replaced from the available additional question booklets. Thus the plea of the petitioner of having been supplied a defective question booklet cannot be brushed aside since there is no denial of a defective question booklet having been supplied to the petitioner. However, it is not for this Court to attempt a guess as to what would have been the position had the petitioner got a defect free booklet since perusal of the question booklet reveals that the questions printed therein are as per serial order as per printed page marking at the bottom of the page. Therefore, in the circumstances, the allegation that the question booklet was defective due to questions starting from Serial No. 36 instead of Question No. 1 may be due to pages of the question booklet not being stapled in serial order. If that be so, the petitioner may have lost some time. Therefore, in the circumstances, the allegation that the question booklet was defective due to questions starting from Serial No. 36 instead of Question No. 1 may be due to pages of the question booklet not being stapled in serial order. If that be so, the petitioner may have lost some time. However, whether the petitioner would have been able to attempt all questions had she got some more time, whether she knew the correct answers to all or some of the questions and therefore would have got more marks in order to enable her to get selected are all hypothetical questions. 8. Learned counsel for the petitioner has relied on the decision of this Court in "Owais Mehmood v. State & Ors." 2015 (3) JKJ 289 [HC]. Relevant extract of the same is reproduced hereunder: "38. Respondent No. 5 has not secured admission by securing fraud on the authorities. In view of the faulty, illegal and unjust decision of the official respondents, the Appellant-writ petitioner was deprived of MBBS seat and Respondent No. 5 selected against the said seat. The Respondent No. 5, by now, must have completed at least four years of MBBS course. She cannot, at this stage, be shown the door as that would tantamount to doing injustice to her. She has to be allowed to complete her MBBS course. But then justice has to be meted out to the Appellant-writ petitioner. The Hon'ble Division Bench of this Court, in case titled J&K BOPEE & Ors. v. Sunandani Sharma & Ors. 2014 (3) JKJ 166 [HC], reported in AIR 2014 J&K 44 , has highlighted the essence of justice and how same has been meted out in almost similar circumstances. Justice has to be meted out to the meritorious Appellant-writ petitioner, as same has been ordained by Hon'ble the Supreme Court in Asha's case supra. 40. The facts of this case make out the rarest of the Rare case, where the Court has to mould the relief to meet the ends of justice." 9. The aforementioned decision pertained to matter regarding selection for 04 seats in different colleges for the MBBS Course outside the State of J&K State for the year 2012-13 in the central pool. The petitioner therein had sought consideration against one of the seats on the ground of her father having been killed by militants and the family having migrated from Kashmir valley. The petitioner therein had sought consideration against one of the seats on the ground of her father having been killed by militants and the family having migrated from Kashmir valley. Necessary documents were enclosed with the application but the respondent-State had illegally and un-authorisedly superimposed condition 5(D) which resulted in the writ petitioner, a more meritorious candidate getting sidelined and a less meritorious candidate being offered the seat in lieu thereof. Neither the Central Government, which was impleaded as party- respondent in the writ petition nor the State Government had brought on record, during the pendency of writ petition or even during pendency of LPA, any document/material to indicate that condition 5(D) was also incorporated in the allocation of letter of Ministry of Health and Family Welfare in respect of central pool seats allocated to the State of J&K. Thus the decision in the aforementioned case has no bearing on the claim in the instant case. 10. Learned counsel has also relied on the decision of the Hon'ble Supreme Court in case titled "Asha v. Pt. B.D. Sharma, University of Health Sciences & Ors." reported as 2012 (7) SCC 389 . The point in issue in the aforesaid case was whether a person who was illegally denied admission despite being entitled to admission could be deprived of admission on the sole ground of cut off date i.e. 31.09.2016 being over. The Hon'ble Supreme Court was pleased to hold that where denial of admission violated the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. In paragraph No. 32 of the aforesaid judgment, it was held that the Court would have to decide whether in the facts and circumstances of the case, relief could or could not be granted and if granted, whether it should be with or without compensation. The Hon'ble Supreme Court was pleased to direct grant of admission to the appellant to MBBS Course in the then academic year subject to the condition that she would pursue her MBBS Course from its beginning. However, the aforementioned decision is also of no avail to the petitioner. 11. The Hon'ble Supreme Court was pleased to direct grant of admission to the appellant to MBBS Course in the then academic year subject to the condition that she would pursue her MBBS Course from its beginning. However, the aforementioned decision is also of no avail to the petitioner. 11. Learned counsel for the petitioner lastly submitted that if this Court is of the view that relief claimed cannot be granted, then the petitioner be granted compensation in terms of the decision of the Hon'ble High Court in Owais Mehmood's case (supra). 12. Learned counsel for the respondents on the other hand has relied upon the decision of the Hon'ble Supreme Court in Owais Mehmood's case (Supra) to contend that no doubt the SLP against the decision of the High Court was dismissed but the same was in the background of the seat claimed by Owais Mehmood lying vacant and the question of law being kept open on dismissal of the SLP. 13. Learned counsel for the respondents has also relied upon the decision of the Hon'ble Supreme Court in case titled as Chandigarh Administration & Anr. v. Jasmine Kour & Ors. with Jessica Reshi v. Chandigarh Administration reported as AIR 2015 SC 34 . Relevant extract of the same is reproduced as under: "As time and again such instances of claiming admission into such professional courses are brought before the Court, and on every such occasion, reliance is placed upon the various decisions of this Court for issuing necessary directions for accommodating the students to various courses claiming parity, we feel it appropriate to state that unless such claims of exceptional nature are brought before the Court within the time schedule fixed by this Court, Court or Board should not pass orders for granting admission into any particular course out of time. In this context, it will have to be stated that in whatever earlier decisions of this Court such out of time admissions were granted, the same cannot be quoted as a precedent in any other case, as such directions were issued after due consideration of the peculiar facts involved in those cases. No two cases can be held to be similar in all respects. No two cases can be held to be similar in all respects. Therefore, in such of those cases where the Court or Board is not in a position to grant the relief within the time schedule due to the fault attributable to the candidate concerned, like the case on hand, there should be no hesitation to deny the relief as was done by the learned Single Judge. If for any reason, such grant of relief is not possible within the time schedule, due to reasons attributable to other parties, and such reasons are found to be deliberate or mala fide the Court should only consider any other relief other than direction for admission, such as compensation, etc. In such situations, the Court should ensure that those who were at fault are appropriately proceeded against and punished in order to ensure that such deliberate or malicious acts do not recur." 14. On the basis of the judgment in Jasmine Kour and others case (Supra), learned counsel for the respondents has argued that even if the court comes to the conclusion that the petitioner had been able to substantiate defective question booklet having been supplied to her, she would not be entitled to any relief as she never brought the defective question booklet to the notice of the invigilator or BOPEE officials, besides the course had already commenced. 15. The reasoning in Jasmine Kour and others case (Supra), is that unless claim for admission is not brought before the Court within the time schedule fixed by the court, the court should not pass orders for granting admission in a course where a candidate is found entitled to admission beyond the last date for making admissions. In the case in hand the plea of the petitioner of having been supplied a defective question booklet cannot be brushed aside since there is no denial in the objections of a defective question booklet having been supplied to the petitioner. However, it is not for this Court to attempt a guess as to what would have been the position had the petitioner got a defect free booklet. However, it is not for this Court to attempt a guess as to what would have been the position had the petitioner got a defect free booklet. Whether the petitioner would have been able to attempt all questions had she been supplied a defect free question booklet, whether she knew the correct answers to all or some of the questions and therefore would have got more marks in order to enable her to get selected are all hypothetical questions. Moreover, perusal of the question booklet reveals that the questions printed therein are as per serial order as per printed page marking at the bottom of the page but since there is no denial of a defective question booklet having been supplied, therefore, in the circumstances, the allegation that the questions started from Serial No. 36 instead of Question No. 1 may be due to pages of the question booklet not being stapled in serial order. However, nothing conclusive can be said in respect thereto and the same is subject to evidence in respect thereto before a Court otherwise than under Article 226 of the Constitution of India. Accordingly, subject to the establishment of a defective question booklet having been supplied, it is possible that the petitioner may have lost some time. However, the same would not entitle the petitioner to seek a direction for award of grace marks or such like relief. Therefore on the limited question of the petitioner likely having been supplied defective question booklet, the petitioner may be entitled to seek redress by way of some compensation. However, the respondents have sought to negate supply of defective question booklet by pleading that the petitioner never approached the invigilator and had she approached the invigilator, there were 10% extra question booklets and she could have been supplied a fresh booklet. That in the circumstances, supply of defective question booklet has to be conclusively established and the claim for compensation as well as the quantum of compensation to which the petitioner may be entitled to is not within the domain of this Court. That in the circumstances, supply of defective question booklet has to be conclusively established and the claim for compensation as well as the quantum of compensation to which the petitioner may be entitled to is not within the domain of this Court. In the aforementioned circumstances, the petitioner is at liberty to invoke the jurisdiction of the civil court to conclusively establish a defective question booklet having been supplied to her resulting in prejudice being caused to her in order to make a claim for compensation though the same would be subject to the evidence to be led in respect thereto as also of establishing having suffered prejudice in the process. Writ petition stands disposed of in aforementioned terms.