National Testing Agency vs Mamatha Sudheendran

,,

Shaji P. Chaly, J.",,

The appeal is preferred by the first respondent in W.P.(C) No. 20982 of 2019 challenging the judgment of the learned single Judge dated,,

19.11.2019, whereby the learned single Judge directed the appellant to revise the marks of the writ petitioners in the UGC National Eligibility Test",,

(NET) held in June, 2019 against the question ID No. 64635010128 holding that none of the options given in the answer key to the question are",,

correct.,,

Brief material facts for the disposal of the appeal are as follows:,,

Writ petitioners are post graduates in History and also possessing M. Phil. They appeared for the test for acquiring qualification as Assistant,,

Professor; and the 2nd writ petitioner for the post of Junior Research Fellow also. Before the publication of the results of the Test, when the answer",,

key of the Test was published by the appellant, the writ petitioners challenged the correctness of the answers in respect of question ID 64635010128",,

and ID 64635010156. However, the challenge was not accepted and the final answer key was published on 09.07.2019. The results of the",,

examinations were published on 13th June, 2019. The first petitioner secured 54% marks; whereas the cut off marks for the eligibility of Assistant",,

Professor was 54.67% for the unreserved category to which the first petitioner belongs. The second petitioner falling within the OBC (NCL,,

Category), secured 57.33%; whereas, the cut off marks for Junior Research Fellow and Assistant Professor is 58% and for Assistant Professor 50%,",,

insofar as OBC (NCL) candidates are concerned. Therefore, according to the second writ petitioner, he has become qualified only for the post of",,

Assistant Professor. According to the 1st writ petitioner, if the challenge to the answers to the two questions were accepted and resultantly removed",,

from the question papers, she would have got 4 marks additionally, and thus qualified for the post of Assistant Professor, and insofar as the second",,

petitioner is concerned, 4 marks would have made him qualified for the post of Junior Research Fellow also, by scoring 58.67%.",,

The case of the petitioners is that since challenge to the answer key was not responded to, they have no other option except to challenge the action",,

of the appellant by filing the writ petition. However, the learned single Judge found that even though the answer key of two questions were challenged",,

before the authority, only the challenge in question ID No. 64635010128 was within the timeline provided in the brochure, and therefore the issue with",,

respect to the said answer key alone was considered and attained finality.,,

The appellant has filed a statement before the learned single Judge basically contending that the test was conducted by the appellant between,,

20.06.2019 and 26.06.2019 across the nation and the writ petitioners had appeared in the test on 20.06.2019. It is also the case of the appellant that as,,

per the Information Bulletin of UGC-NET, 2019, the answer key of the question is displayed on the website of NTA for two or three days before the",,

publication of the result, thus providing an opportunity for challenge, making a payment of Rs.1000 as processing charges; and it is provided in clause",,

12.1 of the Information Bulletin that the decision of the appellant on the challenge shall be final, and the result will be declared on the basis of the final",,

answer keys; that the final answer keys were uploaded on the NTA-NET website, www.ntanet.nic.in on 12.07.2019; that the final answer keys are",,

decided by the experts after giving due consideration of the challenges by the subject experts; and that the results published by the appellant are based,,

on the decision of the subject experts.,,

It was further contended that the writ petitioners themselves had admitted the expertise of the second respondent in paragraph 3 of the writ petition,,

and has stated that the National Testing Agency is entrusted to address all such issues using best in every field, from the test preparation, to the test",,

delivery and to test marking. In paragraph 2 also, it is admitted by the writ petitioners that the appellant has been established as a premier, specialist,",,

autonomous and self-sustained testing organisation to conduct Entrance Examination for Admission/Fellowship in Higher Educational Institutions. The,,

appellant has also relied upon the judgment of the Apex Court in Ran Vijay Singh and Ors. v. State of U. P. and Ors [AIR 2018 SC 52], wherein it",,

was held that the court should not at all revalidate or scrutinise the answer sheets of a candidate; and it has no expertise in academic matters and,,

better to leave such aspects to the academicians. The appellant has also relied upon the judgment of the Apex Court in UPPSE v. Rahul Singh and,,

another [AIR 2018 sc 2861], wherein it was held that when there are conflicting views, then the court must go down to the opinion of the experts,",,

and Judges are not and cannot be experts in all fields, and therefore they must exercise great restraint, and should not overstep their jurisdiction to",,

upset opinion of experts.,,

The sum and substance of the contention advanced was that the law is clear that the expert opinion must be given higher weightage than the,,

opinion of one or two candidates who participated in the examination. That apart, it was contended that the writ petitioners have not challenged one of",,

the questions within the time frame fixed and the challenge was made for the first time in respect of the said question only in the writ petition.,,

It was also contended that the NET examination is conducted every three months and the final results of the same are being published in less than,,

one month, and that a large number of experts and officials are behind the process to ensure that the same is done efficiently and effectively.",,

The learned single Judge considered the correctness of the following question ID 6463501028 and the answer options given in the question paper,",,

and they read thus:,,

In 1579, 'Mahazar' was drafted by which of the following scholars?",,

Ans: Options given in the Question Paper,,

1) Abul Fazl and Sheikh Mubarak,,

2) Sheikh Mubarak and Abdun Nabi,,

3) Abdun Nabi and Badauni,,

4) Sheikh Mubarak and Faizi,,

The basic contention advanced by the petitioners in the writ petition is that Mahazar is the document that made Emperor Akbar the sole Judge of,,

political and religious matters during his reign and the same was drafted by Sheikh Mubarak, a scholar who lived during the period of Akbar. The",,

answer key for the question published by the appellant provided that the same was drafted by Sheikh Mubarak along with his son Abul Fazl as per,,

provided in option ‘1’ . However, the case of the writ petitioners in the writ petition is that the authorities cited by the writ petitioners would",,

make it clear that all the options in the answer key are palpably wrong. They have relied upon Exts. P3 to P14 texts to canvass the proposition that all,,

the options extracted above are wrong. The learned single Judge extracted the relevant portions of 7 texts produced by the petitioners in the writ,,

petition and arrived at the conclusion that, from the passages of the authorities extracted in the Judgment it is clear and unambiguous, that the draft of",,

the document was written by Sheikh Mubarak in his own handwriting; that in the statement filed by the appellant, it has no case that the authorities",,

furnished by the writ petitioners are not the authorities governing the field; that the appellant has also not made available any authority which casts a,,

semblance of doubt as to the correctness of the contents of the authorities produced by the writ petitioners and therefore, it was held that the appellant",,

ought to have accepted the challenge made by the writ petitioners to the question aforesaid and deleted the same from the question paper.,,

However, while holding so, the learned single Judge took note of the contention of the appellant placing reliance on Ext. P9 produced by the writ",,

petitioners “that even though the final draft of the document was prepared by Sheikh Mubarak, his son Abul Fazl also has contributed for the",,

preparation and therefore, the answer key published by the appellant is correctâ€. However, the learned single Judge disagreed with the same by",,

Option No.,Option ID,Option Description

1.,64635039867,Abul Fazl and Sheikh Mubarak

2.,64635039868,Sheikh Mubarak and Abdun Nabi

3.,64635039869,Abdun Nabi and Badauni

4.,64635039870,Sheikh Mubarak and Faizi

the same without assigning proper reasons. Therefore, it is contended that the findings rendered by the learned single Judge without taking into",,

account the intrinsic aspects in regard to the realm of interference in academic matters is only erroneous and contrary to the settled principles of law.,,

Along with the additional statement filed by the appellant in the appeal, as directed by us, copies of the applications submitted by the writ",,

petitioners, Annexure A1 public notice dated 01.07.2019, Annexure A2 sample page on the Web portal maintained by the appellant for challenges",,

regarding answer key, Annexures A3 and A4, relevant pages of the answer sheets generated online and the challenge made by the first writ petitioner",,

together with the documents uploaded by the first respondent; Annexures A5 and A6, answer sheets of the 2nd petitioner generated online and the",,

documents uploaded in support of the claim, are also filed.",,

It is pointed out that Annexures A4 and A6 challenges made by the writ petitioners are similar, and the reference cited in both the cases were also",,

same, and according to them, both sons of Sheikh Mubark equally participated in drafting the Mahzar. So, option ID 64635039870 is also right’ and",,

the reference cited and uploaded in both cases was, The Ain I Akbari, Volume 1 by Henry Blochmann, Henry Sullivan Jarrett( Abu-al-fazl ibn",,

Mubarak) Page No.XIV Printed by GH Rouse, at the Baptist Mission press,1873. The extracted paragraph which was uploaded as PDF read as",,

given below:-,,

“but it was too late. They even signed the remarkable document which Shaik Mubarak in conjunction with his sons had drafted, a document which I believe",,

stands unique in the whole Church History of Islam. Badaoni has happily preserved a complete copy of it. The emperor was certified to be a just ruler, and was as",,

such assigned the rank of a ‘Mujtahid’, i.e. an infallible authority in all matters relating to Islam. The ‘intellect of the just king’ thus became the only",,

source of legislation, and the whole body of the learned and the lawyers bound themselves to abide by Akbar’s decrees in religious matters. Shaikh ‘abdunnabi",,

and Makhdum ul.â€​,,

Therefore, the sum and substance of the contention is that the writ petitioners maintained that both sons of Sheikh Mubark equally participated in",,

drafting the Mahzar and it was accordingly decided that the option ID 64635039870 is also right. The paramount contention advanced by the appellant,,

based on the same is that the writ petitioners had produced only the aforesaid material for substantiating their claim when they challenged the answer,,

keys in contemplation of the Information Bulletin; however, in stark contradiction to their initial challenges to the answer keys, the writ petitioners have",,

taken a totally different stand in the writ petition by contending that Sheikh Mubark alone drafted ‘Mahzar’. In order to understand the said,,

situation, the contention raised in Paragraph 8 of the writ petition is extracted hereunder:",,

“both the petitioners challenged the answer key by pointing out authorities that the official answer key is wrong. According to the petitioners Sheikh,,

Mubarak was a scholar who lived during Akbar’s period. Abul Fazl and Abul Faizi were his sons. Akbar was deeply influenced by these three persons. The,,

Mahazar/Infallibility Decree of 1579 made Akbar the sole judge of Political and Religious Authority which was drafted by Sheikh Mubarak.â€​,,

19.In paragraph 9 of the of the writ petition, it is further stated thus:",,

“All these authorities would say that the ‘Mahazar’ was drafted by Sheikh Mubarak alone. But all the 4 options given as answers were wrong. In two,,

options (A &D), Sheik Mubarak was joined with two of his sons. Hence the authorities on this issue would suggest that all the answers were infact wrong. Hence",,

both petitioner challenged the correctness of the answers but the NTA seems to have not accepted the challenge.â€​,,

Therefore, the contention advanced is that the writ petitioners relied upon various other texts produced as Exts.P3 to P9, which",,

originally were not uploaded in the web portal maintained by the appellant at the time of challenge, and thus at all relevant times, writ petitioners",,

maintained a stand before the appellant that the option ID 64635039870 which was the 4th option chosen by the writ petitioners was the correct,,

answer.,,

To put it short, the paramount contention advanced by the appellant is that the writ petitioners have raised a new contention, different from the one",,

made in the challenges to the answer key options provided by the appellant, is not permissible under law, since the writ petitioners have absolutely",,

deviated from the basic challenge made to the answer key options in terms of the provisions of the Information Bulletin published by the appellant.,,

To the statement filed by the appellant, the writ petitioners have filed a reply statement refuting the contentions raised therein.",,

However, it is admitted that the statement made by the appellant that writ petitioners challenged the answer key to question ID No.64635010128",,

stating that apart from option A, option D, is also correct is, in fact, a true statement; that the objections against the answer key was called for on",,

01.07.2019 to be uploaded with a single supporting authority before 03.07.2019; that the appellant did not grant sufficient time for cross checking the,,

answers with the authorities in the short span of time; that the writ petitioners did not get any reply from the appellant on the said challenge; that the,,

writ petitioners were under the impression that as per the authority uploaded along with the challenge, both options A & D were the correct answers;",,

that the writ petitioners were forced to choose one among the options and they chose option D, but unfortunately, published Option A as the final",,

answer.,,

It is further contended that even though an application under the Right to Information Act was filed before the appellant seeking to inform the,,

names of subject experts, it was not provided by the appellant and therefore, the writ petitioners really suspect the quality and the calibre of the subject",,

experts appointed by the appellant so as to deal with the challenge to the answer keys. Therefore, it is submitted that the appellant has not made out",,

any case for interference with the judgment of the learned single Judge.,,

24. We have heard the learned counsel for the appellant Sri.Nirmal. S. and the learned counsel appeared for the writ,,

petitioners, Sri. S. Sanal Kumar, and perused the pleadings and materials on record.",,

The prime question that emerges for consideration is whether any manner of interference is required to the judgment of the learned single Judge.,,

In fact, the discussion of facts made above would make it clear that the challenge made by the writ petitioners in regard to the answer key under",,

dispute was that option No.4 is also a correct answer apart from the option which provided that the document ‘mahazar’ was drafted by Sheikh,,

Mubarak along with his sons, Abul Fazl and Abul Faizi, and the reason assigned for making the challenge in that manner is that, the writ petitioners did",,

not have sufficient time to search for and upload the necessary authoritative texts as that of the ones produced along with the writ petition in order to,,

substantiate their claim that all the options in the answer key are wrong.,,

It is equally significant to note that in the writ petition, the challenge made to the answer options is entirely different, since the writ petitioners",,

specifically contended that none of the options in the answer key are correct. Anyhow, even though the writ petitioners have challenged the",,

whereabouts and calibre of the subject experts, in the appeal memorandum at paragraph 7, the names and details of the subject experts, who have",,

considered the challenges made by the candidates in the examination is specified and therefore, the contention that the said information was not",,

furnished to the writ petitioners against the application submitted under the Right to Information Act has no much force.,,

Added to that, the writ petitioners have not raised any challenge in the reply statement filed in the appeal as regards the details of the subject",,

experts furnished in the appeal memorandum. Further, the application under the RTI Act, in our considered view, was filed by the writ petitioners",,

during the pendency of the appeal, as an afterthought, presumably to tide over the contentions advanced in the appeal. Therefore, the issue to be",,

decided scales down to a question as to whether the writ petitioners are entitled to make a different challenge in the writ petition than that the one,,

challenged before the statutory authority in contemplation of the Information Bulletin, which was the rule of game for the conduct of the examination.",,

In our considered opinion, it is an emphatic “NOâ€​.",,

We say so because, going by the provisions of the Information Bulletin discussed above, it is clear that there is a clear cut procedure prescribed in",,

order to challenge the answer keys. It is true, the writ petitioners have challenged the answer key under dispute, and a decision was taken by the",,

subject experts and uploaded the same in public domain, which is a method clearly prescribed under the Information Bulletin. It is also equally",,

important to note that the writ petitioners have produced Ext. P15 final answer key published on 12.07.2019. Therefore, the contention advanced by",,

the writ petitioners in the writ petition that no reply was given, cannot be sustained under law, since the procedure to be followed.",,

It is well settled that when a brochure is published with regard to the procedure in the matter of conduct of the examination and the procedure to,,

be adopted to make a challenge to the answer key, that is the rule to be followed by all, including the candidates participating in the examination. It is",,

also relevant and important to note that when challenge was made to the answer key, the writ petitioners have not provided any of the authoritative",,

texts produced along with the writ petition to the subject experts, which is a requirement to justify the challenge in order to substantiate their contention",,

that none of the options in the answer key are correct. It is an admitted fact that the sole text produced by the writ petitioners was to make an attempt,,

to establish that both options 1 and 4 in the answer key are correct. However, in order to get over the folly committed, the writ petitioners have raised",,

a contentiin in the writ petition that they did not have sufficient time to make the challenge appropriately before the subject experts, which, in our view,",,

may not have much bearing and thrust, for the basic reason that all candidates who made challenge were equally situated and no manner of",,

discrimination was employed against the writ petitioners alone.,,

Anyhow, in the writ petition, writ petitioners have taken a totally contrary and different stand to the challenge made by them before the competent",,

authority that options 1 and 4 given in the answer key are correct. In this context, it is relevant to take into consideration the judgment of the Apex",,

Court in Ran Vijay Singh (supra), wherein the Hon'ble Apex Court held under similar circumstances that, sympathy or compassion do not play any",,

role in the matter of directing or not directing re-evaluation of answer sheet and if an error is committed by the examination authority, the complete",,

body of candidates suffers; that the entire examination process does not deserve to be derailed only because some candidates are disappointed or,,

dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer, and that all candidates suffer",,

equally, though some might suffer more, but that cannot be helped since mathematical precision is always not possible.",,

Similarly in Rahul Singh (supra), the Apex Court considered substantially a similar issue and held that since the answer keys are moderated by two",,

expert committees and thereafter, objections are invited and a Twenty Six Member Committee was constituted to verify the objections, the Judges",,

cannot take on the role of experts in academic matters; that unless the candidates demonstrate that the answer keys are patently wrong on the face of,,

it, the courts cannot enter into the academic matters and the pros and cons of the arguments advanced by both sides and come to the conclusion as to",,

which of the answers is better or more correct. However, the learned single Judge has relied upon the judgment of a Three Judges Bench of the Apex",,

Court in Kanpur University and Others v. Sameer Gupta and others [AIR 1983 SC 1230] to grant the reliefs sought for in the writ petition.,,

In our considered opinion, the issue that was considered in the judgment in Samir Gupta was whether the Hindi version of question No.24 therein",,

was correct or not. This is quite clear from the discussion made at paragraphs 6 to 8 of the judgment and they read thus:,,

“6. Question 24 of the Chemistry paper reads thus:,,

The theory of electrolytic dissociation was given byâ€",,

Faraday,,

Kohlrausch,,

Arrehenius,,

Ostwald.,,

Each question in each paper is set both in English and Hindi, not one below the other but, there are two question papers for each subject, one of which is set in",,

English and the other in Hindi. We do not know which is the original version and which is the translation but it is common ground that one is the translation of,,

the other.,,

The Hindi version of Question 24, as transliterated, reads thus:",,

Vidyut apaghatan ka sidhant kis vegyanik ne diya tha?,,

Faraday,,

Kohlrausch,,

Arrehenius,,

Ostwald.,,

The contention of the University, which accords with the key answer, is that the third alternative furnishes the correct answer, namely, ‘Arrehenius’,",,

whether the question is read in English or in Hindi. There is no dispute that Option 3 is the correct answer to the question set in English, that is to say, that the",,

theory of electrolytic dissociation was given by Arrehenius. The contention of the students, who are apparently very clever, is that the correct answer to the Hindi",,

version of the question is ‘Faraday’, which is the first alternative. Their argument is that the English Question 24 and Hindi Question 24 do not carry the",,

same sense and one is not the exact translation of the other. According to these well-taught students, “electrolytic†means “vidyut apaghatanâ€, whereas",,

“electrolytic dissociation†means ‘vidyut apaghataniya viyojan’; and in the Hindi version of the question, the word ‘dissociation’ does not find",,

its equivalent.â€​,,

It was accordingly that findings were rendered at paragraph 15, which reads thus:",,

 “15. The findings of the High Court raise a question of great importance to the student community. Normally, one would be inclined to the view, especially",,

if one has been a paper-setter and an examiner, that the key answer furnished by the paper-setter and accepted by the University as correct, should not be allowed",,

to be challenged. One way of achieving it is not to publish the key answer at all. If the University had not published the key answer along with the result of the,,

Test, no controversy would have arisen in this case. But that is not a correct way of looking at these matters which involve the future of hundreds of students who",,

are aspirants for admission to professional courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because so",,

many students would have had to suffer the injustice in silence. The publication of the key answer has unravelled an unhappy state of affairs to which the,,

University and the State Government must find a solution. Their sense of fairness in publishing the key answer has given them an opportunity to have a closer,,

look at the system of examinations which they conduct. What has failed is not the computer but the human system.""",,

Therefore, even though certain propositions are laid down by the Apex Court in Samir Gupta, it was basically taking into account the facts and",,

circumstances involved in that case, which is quite clear and evident from the expressions employed therein. However it is significant to note that the",,

judgment in Ran Vijay Singh (supra) was rendered by the Honourable Apex Court taking note of the judgment in Samir Gupta and the propositions,,

were laid down with regard to the realm of interference in the answer keys after distinguishing the facts and circumstances involved in the said cases.,,

We also had occasion to consider a similar question in W.A. No.1592 of 2021 and as per the judgment dated 23rd December, 2021, taking into",,

account the decision rendered by the Apex Court in Samir Gupta, Ran Vijay Singh and Rahul Singh, held that when a clear cut procedure is prescribed",,

in the brochure published by the authority in regard to the challenge of the answer key i.e., the guiding principles and the rules to be followed strictly in",,

order to ensure that no disruption is occurring to the examination conducted and the result published. It is clear from the documents produced by the,,

appellants along with the statement in the writ appeal, which, in our considered opinion, was produced to substantiate the basic contention made in the",,

statement filed in the writ petition, that the subject experts declined the challenge made by the writ petitioners by relying upon the authoritative texts.",,

Therefore, even if there is any doubt with respect to the authoritativeness of the options in the answer key, that should go in favour of the",,

appellant. This we say because the examination is conducted on an All India basis and therefore, if any interference is made in the examination",,

process without being found it abhorrent, it will upset and topple the results published by the appellant, thus derailing the process and making complex",,

situations. Moreover, we are of the clear opinion that the question under dispute was framed relying upon the authoritative texts and it is clear from",,

those texts that the coded correct answer contained under option No.1 of the answer key in question cannot be said to be absolutely perverse or,,

wrong so as to justify interference in a writ petition.,,

Considering the aforementioned legal and factual aspects, we are undoubtedly of the opinion that the judgment of the learned single Judge requires",,

interference. Therefore, we set aside the judgment of the learned single Judge, and consequently the writ petition would stand dismissed.",,

Accordingly, this appeal is allowed.",,