Kumari Asma Anjum vs Controller of Examinations and Others

A.P. Sahi, J.—The petitioner, aspiring to become a medical practitioner sought admission and offered her candidature to appeare in the Pre- medical test examination of the Aligarh Muslim University, Aligarh (hereinafter referred to as ''the University'') in session 2008-09. She appeared in the examinations with Roll No. 249946 on 26.05.2008 and the results of the said examination were published on 1st June, 2008. The petitioner was not shown to have been successful in the examination and, therefore, she sought certain information from the University on 2nd June, 2008. She further moved applications on 28th June, 2008 and 21st June, 2008 and a reply was received on 7th July, 2008. The petitioner having not received appropriate information approached the Central Information Commission, New Delhi and the Central Information Commission, New Delhi passed an order on 23rd September, 2008 directing the University to provide the information as contained in the said order. Accordingly, vide letter dated 7th October, 2008 certain material was supplied to the petitioner and on the strength of such information the petitioner alleges that at least 15 questions had been correctly answered by her about which the key answers provided by the respondent-University were wrong. Before proceeding further it would be appropriate to record that the parties are not at variance that the last admitted candidate in the MBBS course had a score of 93.75 and the last candidate to be admitted in BDS course had a score of 88. The score of the petitioner is 81. Broadly calculated and as urged by the learned Counsel for the respondent-University, if the petitioner is able to demonstrate that she has answered 9 questions more correctly over and above her score then she might be entitled for getting admission in the BDS course. Learned Counsel for the respondent-University states that this would require 7 marks to be added to her score for admission in the BDS course or 11.25 marks added to her score for getting admission in the MBBS course.

This fact has been stated at the outset in order to assess the submissions which had been advanced on behalf of the petitioner so as to claim entitlement for admission.

I have heard Shri Rahul Sripat, learned Counsel for the petitioner at length joined by Shri Ravi Kiran Jain, learned senior counsel, who concluded the submissions on behalf of the petitioner and Smt. Sunita Agrawal, learned Counsel for the respondent-University, who has painstakingly evaluated the submissions raised on behalf of the petitioner in respect of all the 15 questions about which facts have been disclosed in the writ petition, the rejoinder affidavit and the supplementary affidavit of the petitioner as well as in the counter affidavit and in the supplementary counter affidavit filed on behalf of the respondent-University.

The Court had called upon the learned Counsels to clear the position of law as to the ambit and extent of the powers of this Court under Article 226 of the Constitution of India to deal with such matters which substantially arise out of a matter relating to academic excellence. Shri Ravi Kiran Jain, learned senior counsel appearing on behalf of the petitioner and Shri Rahul Sirpat have cited the decision in the case of Kanpur University and Others Vs. Samir Gupta and Others, followed by the Hon''ble Apex Court in the case of Abhijit Sen and Others Vs. State of U.P. and Others, to substantiate their plea that the present petition is entertainable and this Court has wide powers under Article 226 of the Constitution of India to proceed to examine the nature of the dispute as on the facts of this case. They contend that it is evident that the respondent-University has provided wrong key answers, which has prejudiced the entire career of the petitioner. They also cited the decision in the case of Manish Ujwal and Others Vs. Maharishi Dayanand Saraswati University and Others, to substantiate their submissions. Apart from this, the learned Counsel for the petitioner have also taken the Court through extract of various text-books, which they allege to be the standard form containing knowledge about the subjects relating to the examinations which every students appearing in such examinations is reasonably expected to know. Shri Rahul Sripat has taken the Court through the details of the questions, which are subject matter of dispute, to urge that if the facts as alleged are accepted to be correct, which in his opinion, have been established on record, then the petitioner is entitled to the relief claimed in the petition.

Smt. Sunita Agrawal, learned Counsel appearing on behalf of the respondent-University, on the other hand, invited the attention of the Court to the standard form of the text-books that the University relied on and also to the experts opinion which the University had obtained on the dispute having been raised by the petitioner to urge that the key answers as provided by the University were the most appropriate answers and the petitioner has miserably failed to demonstrate anything otherwise in the matter. She contends that neither on facts nor on law the petitioner is entitled to any relief and she has relied on the decisions of the Hon''ble Apex Court in the case of Subhash Chandra Verma and others, etc. Vs. State of Bihar and others, etc., and the case of Manish Ujwal (supra), which has been relied upon by the petitioner as well. She further invited the attention of the Court to the decision in the case of Guru Nanak University v. Saumil Garg and Ors. reported in (2005) 13 SCC 749 and contends that the judgments in the cases of Kanpur University and State of U.P. v. Samir Gupta and Ors. and Abhijit Sen and Ors. v. State of U.P. and Ors. (supra) have been clearly explained in the subsequent decisions to the effect that this entire exercise to find out the correct answers falls within the realm of experts and that the Court cannot travel beyond the same and take upon itself the exercise of finding out the correct answers. She contends that even if the Court has a doubt about the correctness or otherwise of the answers then the course suggested by the Hon''ble Supreme Court in such matters is to appoint a body of experts, who are experts in the field and who are supposed to be the only persons capable of finding a solution in respect of such allegations. She contends that this Court may not comment upon the correctness or otherwise of the expert opinion relied on by the University as they are expert of their fields.

Having considered the submissions the first issue needs to be answered in the light of the decisions which have been rendered by the Hon''ble Supreme Court. The Hon''ble Supreme Court in the case of Kanpur University and State of U.P. v. Samir Gupta and Ors. (supra) made the aforesaid proposition by the following observations in paragraphs 16 and 17 thereof.

Shri 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 provided 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.

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 deprived 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.

Again in the case of Abhijit Sen (supra) the Hon''ble Supreme Court in the opening paragraph had to state as under:

...Suffice it to say that this Court has expressed therein a clear and categorical view that if the ''Key-answer'' (i.e. the answer which the paper-setter has supplied to the University as the correct answer and which has been fed into the Computer) is shown to be demonstrably wrong, that is to say, such as no reasonable body of men well versed in the particular subject would regard it as correct and, if the answer given by a student is correct if regard be had to acknowledged text-books or books which the student was expected to read and consult before appearing for the test it would be unfair to penalise the student for not giving an answer which accords with the ''Key-answer'' that is to say with an answer which is demonstrated to be wrong. The contentions raised in the instant appeals will have to be considered within these parameters indicated in the judgment.

The aforesaid pronouncements were made in the context of Pre-medical tests with which we are presently involved. The aforesaid observations of the Hon''ble Supreme Court were again taken into account in the case of Subash Chandra Verma and Ors. v. State of Bihar and Ors. (supra), where the Hon''ble Apex Court in paragraph 25 of the judgment observed at page 335 as follows:

...Normally Speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise....

The position has been further explained in the case of Manish Ujwal (supra) in paragraphs 9 and 10 of the decision, which are quoted below:

In Kanpur University v. Samir Gupta considering a similar problem, this Court held that there is an assumption about the key answers being correct and in case of doubt, the Court would unquestionably prefer the key answers. It is for this reason that we have not referred to those key answers in respect whereof there is a doubt as a result of difference of opinion between the experts. Regarding the key answers in respect whereof the matter is beyond the realm of doubt, this Court has held that 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. There is no dispute about the aforesaid six key answers being demonstrably wrong and this fact has rightly not been questioned by the learned Counsel for the University. In this view, students cannot be made to suffer for the fault and negligence of the University.

The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to be six questions given in the key answers were erroneous and incorrect." 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 as 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 answers; 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, the benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case.

In Guru Nanak Dev University''s case, the Court came to the following conclusion in paragraph 11, which is quoted below:

What is paramount is the interest of the student community. Merit should not be a casualty. We feel that the interests of the students would be adequately safeguarded if we direct the appellant University to revaluate the answers of the aforesaid eight questions with reference to the key answers provided by CBSE and the University of Delhi which are same and not with reference to the key answers provided by the appellant University.

Upon appraisal of the aforesaid law as reflected in the aforesaid decisions it is certain that the Court''s intervention in such matter is not ruled out. It has been found in these cases that the system of such examinations is not infallible. What has been laid down further is that the students should not be put to any disadvantage nor should he or she be penalised for any action of the University where it is demonstrated that the key answers to the questions were wrong and have further resulted in non selection of the candidate. It is, therefore, clear that judicial intervention has been made permissible and in fact judicial review has been under taken to resolve such disputes. The caution which has been sounded in the said decisions is that the Court may not sit as an expert itself to find out the appropriateness of a correct answer by answering the question itself. However, if the Court finds that the answers provided by the University cannot be termed as an appropriate answer on the basis of what a student is reasonably expected to know then in that event upon an opinion to be expressed by either standard text-books or by experts of the fields, arrive at a conclusion upon the facts pleaded. The Court has also indicated the difficulties that arise in such matters when there is a divergence of opinion about the most appropriate answer. It has been held that if the answers provided for by the candidate and by the University, both are not correct then in that event the advantage would go to the University as the students will be presumed to have given a wrong answer. However, the decision in the case of Samir Gupta (supra) and Abhijit Sen Gupta (supra) both rest on the acceptance of the answers as provided for in standard text-books. The later decisions indicate obtaining of experts opinion. In such a situation, it is definite that the Court to that extent can intervene and carry out a judicial review of this intention seeking process to find out as to whether the examining body has provided the most appropriate answer in its key answers or not.

The first issue therefore having been answered in favour of the petitioner, it will have to be assessed on the facts of the present case as to whether the petitioner has been able to establish that there are wrong key answers provided by the University or not. This being a more objective exercise need not detain the Court long. The questions that have been provided with wrong key answers according to the pleadings of the petitioner contained in the writ petition, the rejoinder affidavit and the supplementary affidavit, are question Nos. 9, 35, 65, 84, 85, 87, 92, 96, 115, 118, 155, 157, 158, 162 and 185. Learned Counsel for the petitioner has also provided a chart in addition to the pleadings made to explain the disparity and infirmity relating to the wrong key answers.

As a prelude to this chapter of the argument, it would be appropriate to record that Smt. Sunita Agrawal, learned Counsel for the respondent-University has extensively laboured hard to minimize the efforts of the Court on this issue and has very fairly at the outset stated that the key answers in respect of the question Nos. 35 and 158 are wrong. Thus, the dispute now narrows down to the rival contentions in respect of the other 13 questions. Since the petitioner would succeed or fail upon a minimum of five key answers to be demonstrateably wrong, it would be appropriate to point out the rival submissions in respect of the questions on which the learned Counsel for the petitioner and the learned Counsel for the respondent-University have ably assisted the Court.

The other 13 questions about which the submissions have been raised are question Nos. 9, 65, 84, 85, 87, 92, 96, 115, 118, 155, 157, 162 and 185.

Question No. 9 - This relates to grafting experiments. Instead of reproducing the question, reference may be had to the same contained in annexure 3 to the writ petition. According to the key answer provided by the University the correct key answer is (c). The petitioner contends that the correct key answer is (d). The petitioner relies on three sources as detailed in annexure 1 to the rejoinder affidavit. Apart from three texts, the petitioner also relies on the expert opinion of five teachers, whose names and opinions are appended in annexure 1 to the rejoinder affidavit and she further contends that the opinion of professor Firoz Ahmad of the Botany Department of the University also supports the same. On the other hand, counter affidavit of the University relies on the opinions of two professors and a Chairman, who vide their communication dated 29th November, 2008 have given their own reasons for supporting the key answer. Learned Counsel for the petitioner contends that it is evident that the answer given by the petitioner is reasonably expected to be known whereas the key answer arrives at a conclusion which has a circuitous explanation.

Question No. 65 - This question relates to a drug that produces hallucinations. The key answer provided by the University is (a). The petitioner''s contention is that the correct key answer is (d). The petitioner has again relied on the expert opinion of seven teachers and also text books. The University relies on a recital contained in a text book which states "excessive dosage of cocaine causes hallucinations". Learned Counsel for the petitioner contends that the text book of National Council of Educational Research and Training (hereinafter referred to as ''''the NCERT'') for class 12 gives a chart which describes cocaine as a stimulant and not as a hallucinogen. It is submitted that Marijuana by itself creates hallucinations whereas according to the University cocaine would produce hallucinations if it is taken in excess dose. Accordingly, the petitioner contends that the answer which is more nearer to the question is (d) and not (a).

Question No. 84 - This question relates to the effect of high concentrations of two elements described in the said question. The key answer provided by the University is (a) whereas according to the petitioner the correct key answer is (b). For this, the petitioner has relied on the expert opinion of two doctors, whose opinions are indicated in the rejoinder affidavit. It is submitted that the reply of the University is incorrect, inasmuch as, the key answer is sought to be justified on the strength of an additional condition relating to the effect of hormones without discussing and rather awaiting the effect of the hormones on the pathway as required by the question.

Question No. 85 - This relates to the description of certain extensions existing on the intestinal epithelium. The key answer as given by the University is (b) whereas the petitioner contends that it is (a). For this, the petitioner has relied on the text books prescribed for medical students and in particular the recital contends in Medical Physiology by Shri R.J. Bijlani. With the aid of other text books which have been filed along with the rejoinder affidavit, it is submitted that Microvilli has been described as Tiny Projections that give a fuzzy appearance sometimes referred to as the Brush Border. The University relies on the opinion expressed by the experts and it is contended that the key answer provided by the University is correct. A reference to a book has also been made at page 34 of the supplementary counter affidavit to substantiate the submission.

A perusal of these respective answers it would, prima facie, indicate that the contention of the petitioner is not wrong and is very near to the correct answer attempted by her as against the key answer provided for the question.

Question No. 87 - This question has been negatively put as to what is correct. The key answer of the University is (b) whereas the answer attempted by the petitioner is (c). The University relies on the opinion of a teacher of the University and is sought to be supported by a text book on Cytogenetics. The petitioner relies on the standard text book of Principles of Genetics and has also relied on the text book of the NCERT for Class 12.

Question No. 92 - This question relates to the description of a Cell which is not of the category of Macrophage System. The key answer provided by the University is (d) whereas the petitioner contends that it is (c). The petitioner has relied on the text book of Medical Physiology whereas the University relies on a text book of Histology of Ross and Reith.

Question No. 96 - This question relates to an activity of a particular element, the key answer of which according to the University is (c) whereas according to the petitioner the correct answer is (b). Here again the petitioner has relied on the text book of NCERT and other books of medical science to substantiate her position. The supplementary counter affidavit relies on the opinion of one professor Irfan Ahmad and some recitals contained in a text book of Histology by Fawcett. The contention raised by the learned Counsel for the petitioner is that the key answer given appears to be not correct and therefore the attempt made by the petitioner deserves to be accepted.

Question No. 115 - This question relates to explaining the reversibility or irreversibility of a change of state. The key answer according to the University is (d). The petitioner''s key answer is (a). For this, the petitioner relies on a text book of Physics, which according to her is prescribed for all medical entrance examinations. The University relies on an opinion of the teacher of the University along with a text book, which according to the petitioner confirms that the answer given by the petitioner is correct.

Question No. 118 - This relates to a question about the Travel of Pulses in a particular direction. The key answer of the University is (a) whereas the petitioner''s key answer is (b). For this, the petitioner relies on an expert opinion whereas the University relies on the opinion of a Committee chaired by the professor Mohammad Zafar describing the understanding of the petitioner as absurd.

Question No. 155 - This question relates to the understanding of a question on Cubic Geometry. The petitioner contends that the key answer given is (d) whereas the correct answer is (c). For this, the petitioner relies on the text supplied by the University itself in the counter affidavit where according to the petitioner the minimum value is 0.732, which is obviously more than 0.731. Therefore it is contended that the key answer of the petitioner is correct, which is supported by the text book of Chemistry prescribed by the NCERT.

Question No. 157 - This question relates to the increase of potential galvanic cell. Here also the factors which enable the increase of Cell Potential is sought to be supported by the petitioner through text books. The key answer given by the University is (c) whereas the petitioner contends that it is (b). The contention of the petitioner is supported by the text books whereas the University relies on opinion of experts, which according to the petitioner is contradictory.

Question No. 162 - This question relates to a chemical reaction of aldehyde with alcohol in the presence of HCL gas. The key answer given by the University is (a) whereas the petitioner contends that it is (b). The petitioner has relied on a text book of Organic Chemistry for graduation students by M.K. Jain and S.C. Sharma and has further relied on the opinion of teachers of the Aligarh University itself. The supplementary counter affidavit relies on a text book and the opinion of one Dr. Afaq Ahmad. Learned Counsel for the petitioner contends that the explanation given by the University is absolutely tangent and is no where even remotely concerned with the answer.

Question No. 185 - This question relates to an expression of the correct order of a particular bond length of carbon and oxygen. According to the University the key answer is (c) whereas according to the petitioner the correct answer is (d). The petitioner has supported her stand from standard text books and also from certain master guides relating to medical examinations. The University relies on a teacher''s opinion, who proceeded to give his opinion about the method by which such order of increase can be explained. The petitioner submits that the key answer is required straight away and the question no where indicates arriving at a conclusion on a particular method.

Having perused the material which has been brought on record, it is evident that the petitioner has been able to demonstrate that in majority of the questions about which the dispute has been raised the petitioner can be prima facie presumed to have attempted the correct answers. However, as contended on behalf of the University by Smt. Sunita Agrawal this opinion can be arrived at only after calling for an expert opinion from an independent third source as indicated in the decisions of the Hon''ble Supreme Court cited by her and then only can a decision be arrived at about the correctness or otherwise of the key answers.

The aforesaid submissions therefore have to be accepted and it is necessary that in view of the position that has emerged the matter does require scrutiny by an expert Committee. Accordingly, this Court constitutes the following Committee to objectively sought out the correct answers in view of the rival submissions aforesaid in respect of the 13 questions indicate hereinabove.

The Committee constituted under this order shall comprise of at least two Professors of eminence to be nominated by the Principal, Moti Lal Nehru Medical College, Allahabad. The petitioner shall obtain a certified copy of this order and file an application before the Principal, Moti Lal Nehru Medical College, Allahabad with a request to constitute the Committee as aforesaid, so that the evaluation is made in respect of the 13 answers as detailed in this order. This order has been passed in the presence of the learned Counsel for the parties and the learned Standing Counsel, to which they have no objection. The Principal of the Medical College, Allahabad shall treat this request on behalf of the Court as a urgent necessity keeping in view the career of the petitioner involved relating to her claim of admission in M.B.B.S. Course. It is expected that the Committee shall submit its findings to the Principal, and the Principal, Medical College Allahabad shall provide a copy of the said findings to the petitioner as well as to the Respondent-University, who may file the same along with their affidavits and objections if any before this Court by the date fixed.

The petitioner and the respondent-University shall both submit their respective supporting documents before the said Committee within 10 days from today. The Committee may if it so desires call for any explanation from the contending parties or may arrive at its own conclusion based on its own findings keeping in view the rival contentions raised. The Committee shall submit a report within twenty days thereafter as a considerable time has lapsed during the pendency of this petition. This is also desirable in view of the fact that the claim relates to an academic session of the previous year and as such an early disposal of the matter is urgently required. The matter shall now be placed before the Court after the report arrives on 14th December, 2009.