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Allahabad High Court · body

2017 DIGILAW 1856 (ALL)

SAUMITRA GINODIA v. UNION OF INDIA

2017-08-10

ASHOK KUMAR, TARUN AGARWALA

body2017
JUDGMENT Hon’ble Tarun Agarwala, J.—As per regulations framed under the Indian Medical Council Act, 1956 as amended in 2016 and the Dentist Act, 1948 as amended in 2016, the National Eligibility Cum Entrance Test (UG) (Session 2017-18) [hereinafter referred to as NEET (UG) 2017] was to be conducted by the Central Board of Secondary Education (CBSE) for admission to MBBS/BDS courses in India in Medical/Dental Colleges run with the approval of the Medical Council of India/Dental Council of India under the Union Ministry of Health and Family Welfare, Government of India. In order to be eligible for admission in MBBS/BDS courses, it was necessary for the candidates to obtain minimum marks in NEET (UG) 2017. The admission in MBBS/BDS courses was based solely on the marks obtained in the NEET. 2. The responsibility of the CBSE was limited to the conduct of the entrance test, declaration of result and providing All India Rank to the Directorate General of Health Services, New Delhi for counselling of 15% of All India Quota Seats and providing the result to the State Counselling Authorities. 3. The entrance test consisted of one paper containing 180 objective type questions (four options with single correct answer) from Physics, Chemistry and Biology (Botany & Zoology) to be answered on the specially designed machine-gradable sheet using Ball Point Pen provided by CBSE at examination centre only. The question papers for the test was based on a common syllabus notified by the Medical Council of India. The CBSE was required to display OMR sheets and responses credited by the machine of all the candidates on its official website. The candidates were also allowed to submit a representation against OMR grading on payment of Rs. 1000/- per response challenge. It was also intimated in the Information Bulletin that the deposit of Rs. 1,000/- per response would be refunded to the candidate in the event his/her challenge was accepted by the Board. In the information Bulletin it was also indicated that to be eligible for admission the candidate was required to obtain a minimum of 50% marks in the NEET examination. It was also indicated that for each question four marks would be awarded and one mark would be deducted in the event a candidate gives a wrong answer. 4. In the information Bulletin it was also indicated that to be eligible for admission the candidate was required to obtain a minimum of 50% marks in the NEET examination. It was also indicated that for each question four marks would be awarded and one mark would be deducted in the event a candidate gives a wrong answer. 4. Based on the information Bulletin, which was issued by the respondents, the petitioner applied for NEET examination for the purpose of seeking admission to MBBS/BDS courses. The petitioner appeared in the NEET examination and was provided a test booklet code “Y” by the examining body. The results were declared and the petitioner was awarded 665 marks out of total 720 marks. His All India Rank was 137 and category rank was 93. 5. Upon the display of the answers provided by the CBSE, the petitioner was dismayed to see that the official answer to question No. 172 of test booklet “Y” was incorrect and, accordingly, submitted a representation against the OMR grading on payment of Rs. 1,000. Relying upon the Physics, Part I, Textbook for Class XI, prescribed by the National Council of Educational Research And Training (NCERT) the petitioner contended that the official answer (b) and (d) to question No. 172 was incorrect. Upon getting no response from the respondents to the challenge, the petitioner applied for information under the Right to Information Act, 2005. Even this application remained pending and no reply was given by the respondents. Since admission started on the basis of the result declared and the petitioner was not given the necessary information, the petitioner filed the present writ petition praying for a writ of mandamus commanding the respondents to take a decision on the challenge made by the petitioner on question No. 172 of test booklet code “Y” and further to award 05 marks to the petitioner with respect to question No. 172. The petitioner further prayed for a writ of mandamus commanding the respondents to revise the merit/rank of the petitioner as a result of change in the number of marks awarded as a result of wrong answer keys so provided by the CBSE. The petitioner also prayed for a writ of mandamus directing the respondents to call the petitioner for counselling and grant admission in the concerned Medical College as per the revised ranking. 6. The petitioner also prayed for a writ of mandamus directing the respondents to call the petitioner for counselling and grant admission in the concerned Medical College as per the revised ranking. 6. We have heard Sri Manish Singh, the learned counsel for the petitioner, Sri P.S.Chauhan, the learned counsel appearing for the respondent Nos. 1 and 2 and Sri S.P.Sharma, the learned counsel appearing for the respondent Nos. 3, 4 and 5. 7. The limited issue which arises for consideration is whether the answer key provided by the CBSE for question No. 172 for test booklet code “Y” is correct or not. The requisite question No. 172 is as follows: “172. Which of the following statements are correct ? (a) Centre of mass of a body always coincides with the centre of gravity of the body. (b) Centre of mass of a body is the point at which the total gravitational torque on the body is zero. (c) A couple on a body produce both translational and rotational motion in a body. (d) Mechanical advantage greater than one means that small efforts can be used to lift a large load. (1) (c) and (d) (2) (b) and (d) (3) (a) and (b) (4) (b) and (c)” 8. According to the answer key provided by the CBSE, the correct answer is (b) and (d) at serial No. 2. According to the petitioner, the answer key provided by the CBSE with regard to question No. 172 is incorrect, inasmuch as three of the options given in the multiple choice are incorrect statements. 9. CBSE has filed a short counter-affidavit and thereafter submitted a note in a sealed cover. According to the CBSE, the answer key provided by the CBSE to question No. 172 is correct and requires no change. The respondents contended that the answer keys were displayed on the website upon the declaration of the result and the candidates were given an opportunity to challenge any of the answer keys prepared by the CBSE. It was contended that all the challenges received including the challenge made by the petitioner were placed before the Chief Secrecy Officer, who decided the challenges and after approval from the Competent Authority the same were corrected in the data by the Chief Secrecy Officer only. 10. It was contended that all the challenges received including the challenge made by the petitioner were placed before the Chief Secrecy Officer, who decided the challenges and after approval from the Competent Authority the same were corrected in the data by the Chief Secrecy Officer only. 10. The CBSE further contended that once the challenges are decided and, after obtaining approval from the Competent Authority of the Board, necessary changes are made in the captured responses and thereafter result is prepared and declared. 11. The CBSE further contended that subject experts in CBSE are known as moderators and they finalise the paper and, being the author of the question with perfection, it was contended that where the challenge was not accepted, the subject expert notes are taken. The respondents have further submitted that they received 147 challenges, which were given to the Chief Secrecy Officer for consideration and the Chief Secrecy Officer had accepted only 05 challenges. It was also pointed out that there were 881 challenges to 31 questions in Physics. In the instant case, the present question No. 172 relates to Physics. 12. On the basis of the pleadings, the Court finds that both the petitioner as well as the respondents relied upon pages 161 and 162 of NCERT book. According to the petitioner, option (a) (b) and (c) are incorrect answers and option (d) is the only correct answer and, therefore, the answer key provided by CBSE is incorrect. On the other hand, the stand of the CBSE is that option (b) and (d) are correct answers. 13. In the light of the aforesaid, another issue to be considered is, whether the Court should interfere with the answers given by an expert body. In this regard, the learned counsel for the CBSE has placed reliance on a decision of the Supreme Court in H.P.Public Service Commission v. Mukesh Thakur and another, 2010 (6) SCC 759 , University Grants Commission and another v. Neha Anil Bobde (Gadekar), 2014 AIR (SC) 237 and an unreported judgment of the Supreme Court in Secretary, All India Pre-Medical /Pre-Dental Entrance Examination and others v. Khushboo Srivastava and others in Civil Appeal No. 7024 of 2011 and other companion writ petitions decided on 17.8.2011. The learned counsel for the respondents has further placed reliance upon two decisions of the Delhi High Court in Atul Kumar Verma v. Union of India and another, in W.P. (C) 5719 of of 2015 dated 13.7.2015 and W.P.(C) 2275 of 2010, Dr. Rajeev Kumar v. Union of India and others, decided on 8.4.2015. On the basis of these decisions, it was contended that the Court should restrain itself from entertaining the pleas regarding the correctness of the answer and that it was for the expert body to determine them. It was contended that in no event, the High Court should examine the correctness of model answer keys. 14. On the other hand, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in Kanpur University and others v. Samir Gupta and others, AIR 1983 SC 1230 and Manish Ujwal and others v. Maharish Dayanand Saraswati University and others, JT 2005(8) SC 382. The learned counsel has also placed reliance upon a decision of the Supreme Court in Pankaj Sharma v. State of Jammu And Kashmir and others, (2008) 4 SCC 273 . The petitioner has further placed reliance upon two Division Bench decisions of this Court in Rohit Nandan Shukla v. U.P.P.S.C.,. Allahabad and another, 2016(5) ADJ 485 and Sunil Kumar Singh and others v. State of U.P. and others, 2017(1) ADJ 69 . The learned counsel submitted that in view of the aforesaid decisions, the answer keys given by an expert body can be examined by the Court on the basis of the material contained in the Physics Part I Textbook For Class XI and that it would be unfair to penalize the students because an incorrect answer was given by the CBSE. 15. In order to deal with this issue, we find that multiple choice for objective type questions was given in which, one of the four options was required to be marked by the candidate as the correct answer. Thus, the answer would either be correct or incorrect. The multiple choice type test involves merely the ticking -marking of the correct answer. It leaves no scope for reasons or arguments. The answer is either “Yes” or “No”. Thus, either you get full marks for the correct answer or you get minus 01 mark for giving an incorrect answer. Thus, the answer would either be correct or incorrect. The multiple choice type test involves merely the ticking -marking of the correct answer. It leaves no scope for reasons or arguments. The answer is either “Yes” or “No”. Thus, either you get full marks for the correct answer or you get minus 01 mark for giving an incorrect answer. It is not a subjective matter for different examiners awarding different marks for different answers. In the case of Kanpur University (Supra), the Supreme Court while examining the correctness of the answer key, which were doubted by the candidate observed- “16. Sri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U.P. Those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect. 17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.” 16. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.” 16. In Manish Ujwal (Supra), the Supreme Court did not approve the view taken by the High Court in refusing to interfere in the matter by holding that “it cannot be said with certainty that answers to this question given in the answer keys were erroneous and incorrect”. 17. The Supreme Court held that where the answer keys were demonstrably erroneous the students could not be made to suffer and held - “As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student and a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answer; the second reason is that the Courts are slow in interfering in education matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answer is adopted by concerned persons, directions may have to be issued for taking appropriate action, including the disciplinary action, against those responsible for wrong and demonstrably erroneous key answers but we refrain from issuing such directions in the present case.” 18. Similar view was again expressed by the Supreme Court in the case of Pankaj Sharma (Supra). 19. The Division Bench of this Court in Sunil Kumar Singh (Supra) held that the decision of the examining body or the expert is not beyond judicial review and in order to maintain the purity of the examinations and the welfare of the students, the Court could definitely look into and examine whether the answer key provided by the expert is correct or not. 20. The decisions relied upon by the respondents in H.P.Public Service Commission (Supra), is with regard to revaluation of the answer sheets. The High Court found that there were some inconsistency in framing question Nos. 5 and 8 and, accordingly, revaluated the answer sheet. The answers that were revaluated were not objective but subjective in nature. It was in this context that the Supreme Court observed that it was not for the High Court to examine the answer sheet itself. In our view, this decision does not help the Commission in so far it relates to the present controversy. Similarly, other decisions relied upon by the respondents also relate to revaluation, which is not an issue in this case. The said decisions do not lay down the proposition of law that in no event the High Court could examine the correctness of model answer keys. 21. Thus, we find that the opinion of the University or the expert, normally, should be accepted as it is assumed that such experts are well versed in their subject. We are further of the opinion that the decision of the examining body or the expert is not beyond judicial review. The prime consideration is to maintain the fairness of the examination and welfare of the students/candidates, inasmuch as, in the event a wrong answer key is accepted, it would alter the fate of many candidates. The object of conducting an examination is to assess the merit of the candidates and to find out as to who is most suitable one for admission. The object of conducting an examination is to assess the merit of the candidates and to find out as to who is most suitable one for admission. The object of conducting a test would be defeated in case a wrong answer given is held to be beyond judicial review. 22. Normally, the Court should be cautious in interfering with the opinion of the expert but where it is found that the answer keys are demonstrably wrong, that is to say, it cannot be such as no reasonable body of men, well versed in the particular subject, would regard it as correct, in that event the Court should exercise its writ jurisdiction and ensure that the error is rectified. 23. Consequently, we are of the view that the Court has ample power to find out as to whether the answer key given by the expert is correct or not. We,therefore, proceed to examine the contentions of the parties on merits. 24. Question No. 172 required the candidate to answer as to which of the following statements were correct. Four options, (a), (b), (c) and (d) were given. Option (a) stated “Centre of mass of a body always coincides with the centre of gravity of the body.” 25. The opinion of the expert has been provided by the CBSE, which is extracted hereunder: “As per statement (a) given in the question “Centre of mass of a body always coincides with the centre of gravity of the body”, is incorrect. It is mentioned in NCERT text book Part I of Class XI at page 161 that “Thus the centre of gravity coincides with centre of mass in uniform gravity or gravity-per space.” It is evident that it is not always that centre of mass of body coincide with centre of gravity. It only happens in case of uniform gravity. Thus statement (a) made in the question is incorrect.” 26. According to the petitioner, this statement given in option (a) is incorrect and relies upon page 161 of NCERT book. Thus, both the petitioner and the respondents agree that the statement (a) is incorrect. 27. Option (b) provides “Centre of mass of a body is the point at which the total gravitational torque on the body is zero”. 28. According to the petitioner, this statement is incorrect and relies upon page 161 and 162 of NCERT book. Thus, both the petitioner and the respondents agree that the statement (a) is incorrect. 27. Option (b) provides “Centre of mass of a body is the point at which the total gravitational torque on the body is zero”. 28. According to the petitioner, this statement is incorrect and relies upon page 161 and 162 of NCERT book. On the other hand, the experts contend that this statement is correct. The experts’ opinion as provided by the CBSE is extracted hereinbelow: “As per statement (b) given in the question, it is important to realise that here body implies an ‘ordinary body’ where acceleration due to gravity does not vary from one point of the body to other. Therefore in this case centre of gravity and centre of mass of the body should coincide (Refer to page 161-62 of NCERT Part I of Class XI Physics Text Book). Thus the total gravitational torque of the body about centre of mass is also zero as it is about the centre of gravity of the body. So the statement (b) made in the question is correct.” 29. The aforesaid opinion makes it clear that the statement is correct only in a given situation, namely, that centre of gravity should coincide with centre of mass where acceleration due to gravity does not vary from one point of the body to other. According to the expert’s opinion, ‘body’ means an “ordinary body” and not otherwise. On the other hand, NCERT book at page 161 talks about the centre of gravity and not the centre of mass of a body. The book states: “The centre of gravity of a body as that point where the total gravitational torque on the body is zero” 30. Having pondered over the experts’ opinion on option No. (b) and upon perusal of the page 161 and 162 of the NCERT book, we find that statement (a), namely “ Centre of mass of a body always coincides with the centre of gravity of the body” is incorrect inasmuch as we find that the centre of mass and centre of gravity are two different points in a body. 31. The statement given in option (b), namely, “Centre of mass of a body is the point at which the total gravitational torque on the body is zero” is incorrect. 31. The statement given in option (b), namely, “Centre of mass of a body is the point at which the total gravitational torque on the body is zero” is incorrect. The NCERT book at page 161 states that the centre of gravity of a body as that point where the total gravitational torque on the body is zero. Since centre of mass is not the same point as centre of gravity, the total gravitational torque cannot be zero on the centre of mass. Therefore, the petitioner’s contention is absolutely correct and the answer provided in the answer key by the CBSE is wrong as per NCERT book. 32. The experts’ opinion on statement (b) is based on assumption, namely, “body” implies “ordinary body”. Statement (b) only states “body” and does not state “ordinary body”. As per NCERT book, centre of gravity coincides with the centre of mass in uniform gravity or gravity free space. In all other circumstances the centre of mass will not be the same as the centre of gravity. In such cases, the centre of mass and centre of gravity shall become the same point and the total gravitational torque would be zero. The answer key provided by the experts is based on this assumption, which assumption has not been stated in statement (b) and, therefore, cannot be applied. Assuming that this assumption could be applied in statement (b), the Court is of the opinion that such assumption cannot be applied in isolation to statement (b) alone. Such assumption is required to be applied uniformally to all the statements. If the said assumption is applied to statement (a), then the statement (a) would also become correct. This, in turn, would again render all the options available in the answer to the question as invalid as none of the option could provide a correct answer since 03 options out of 04 would be found to be correct. Thus, in either case the option provided in the answer key is incorrect. 33. Insofar as statement (c) is concerned, the petitioner and the CBSE contend that the statement is incorrect and, therefore, there is no controversy. Insofar as statement (d) is concerned, both the petitioner and CBSE state that the statement is correct and, therefore, there is no controversy on this statement. 34. 33. Insofar as statement (c) is concerned, the petitioner and the CBSE contend that the statement is incorrect and, therefore, there is no controversy. Insofar as statement (d) is concerned, both the petitioner and CBSE state that the statement is correct and, therefore, there is no controversy on this statement. 34. In the light of the aforesaid, we find that in question No. 172, 03 statements are incorrect and only 01 statement is correct. As a result the answer key provided by the CBSE that statement (b) and (d) are correct is wholly erroneous. 35. From the aforesaid, it is clear that the answer provided by the CBSE to question No. 172 is proved to be wrong not by inferential process of reasoning but the same is clearly demonstrated to be wrong, as per the NCERT book relied upon by the expert. It would, thus, be unfair to penalize the candidate if they do opt for an answer to question No. 172, which is demonstrated to be incorrect but is found to be correct by the CBSE. 36. The Supreme Court in Kanpur University (Supra) had the occasion to consider a similar situation, namely, with regard to the correctness of a answer key. The Supreme Court held that no challenge on the correctness of a answer key could be allowed unless it is demonstrated to be clearly wrong. 37. In the light of the aforesaid, we are of the opinion that the writ petition is liable to be allowed. The issue now is what relief should be granted? We have given our thoughtful consideration in this matter. We find that it is the duty of the CBSE to award marks on the basis of the correct answer key. One wrong answer to a question can alter the fate of many candidates. Even though, the petitioner is entitled to the relief claimed by him, we are of the opinion that it would be wholly unjust depriving such candidates, who either did not attempt the said question or attempted a question, which was found to be incorrect and minus mark was awarded. We are of the opinion that it would be wholly unjust to deprive such candidates. We are of the opinion that the purity in the selection process has to be maintained. The mistake committed by the CBSE has to be rectified. We are of the opinion that it would be wholly unjust to deprive such candidates. We are of the opinion that the purity in the selection process has to be maintained. The mistake committed by the CBSE has to be rectified. Consequently, the relief claimed by the petitioner should not be confined to the petitioner alone but to all the candidates, who had appeared in the examination. We find that question No. 172 in test booklet code “Y” could not be answered correctly by any candidate. We are, therefore, of the opinion that in the interest, not only, of the petitioner but also in the larger interest of administration that the benefit should be extended not only to the petitioner but to all the candidates. 38. In the result, the writ petition is allowed. We hold that the answer key provided by the CBSE for question No. 172 in test booklet code “Y” does not provide the correct answer. The petitioner is entitled to be awarded 05 marks (04 marks for the question and 01 mark for minus marking). We also direct the CBSE to give appropriate marks to all the candidates in the like manner to all the candidates for question No. 172 and corresponding question given in other booklets. We also issue a writ of mandamus commanding the CBSE to revise the marks awarded to all the candidates including the petitioner and revise the merit/rank, accordingly. Even though the petitioner had not claimed refund of the prescribed fee for challenging a key answer, since we find that the challenge made by the petitioner was correct, we are of the opinion that the petitioner is entitled for the refund of Rs. 1,000/-. We, accordingly, issue a mandamus commanding the CBSE to refund Rs. 1,000/- to the petitioner at the earliest. 39. In the circumstances of the case, parties shall bear their own costs.