Sourav Goel vs JandK Bopee

Bansi Lal Bhat, J.—In this petition filed under Article 226 of Constitution of India read with Section 103 of the Constitution of Jammu and

Kashmir, petitioner seeks the following reliefs:--

(i) Writ in the nature of Certiorari quashing Notification No. 32-BOPEE dated 05.08.2013 pertaining to the selection for the MBBS & other

professional courses.

(ii) Writ in the nature of mandamus commanding the respondents to recast the merit of the petitioner for MBBS course for the year 2013-14 and

consequently select the petitioner for the MBBS Course.

Petitioner, having passed his 10+2 examination from J&K Board of School Education in Medical Subjects with 83% marks submitted his

application form for appearing in the Entrance examination. Entrance examination was held on 27-28th July, 2013. Vide Notification No. 32-

BOPEE of 2013 dated 05.08.2013; provisional select list for MBBS and other courses was notified. Petitioner figured at serial No. 508 with merit

of 165 marks in the list. According to petitioner, Counseling process for Govt. Medical College Srinagar/Jammu and SKIMS stands completed.

However, process of counseling for ASCOMS is yet to be commenced. Respondents while notifying the select list have notified the answer key in

response to the questions forming part of the examinations.

Petitioner has given the break-up in regard to availability of the seats in each Medical College as under:--

According to petitioner, answer key published by the respondents carries wrong answers, including the incorrect options, in some cases. This he

claims to have been verified from Books published by Experts. He has classified the errors in the answer key in the following four categories:--

Category-A: Indicates errors in the answer key published by the Board of Professional Entrance Examination (BOPEE).

Category-B: Indicates that none of the options as suggested alongwith questions is correct.

Category-C: Indicates that the question contains more than one option and the same being incorrect i.e. question has more than one correct

answer out of suggested options.

Category-D: Questions not correctly framed.

Petitioner has incorporated the following chart to indicate the number of questions, form of questions, suggested questions, answers shown as

per key, actual correct answers and source.

Subject: Chemistry

Category A- errors in the answer key published by BOPEE

According to the petitioner, respondents have jumbled 225 questions in four different series with different serial numbers, but the questions and

answers remained the same. Petitioner claims to have submitted 18 questions which were not carrying the correct answers or contain more than

one correct option or other omission to the notice of Board of Professional Entrance Examination (for Brevity 'Board') for revising the provisional

select list. The Board, on receipt of the representation of the petitioner and others revised the answer key dealing only with 12 revised questions.

No revised key was published and the other questions submitted by the petitioner were not revised. According to the petitioner marks awarded to

him are not correct. He claims to be entitled at least to more than 21.6 marks which can make the grade of the petitioner up to 186.6 marks,

thereby falling within the cut off limit for Government Medical College Jammu/Govt. Medical College Srinagar and SKIMS. Thus, petitioner assails

the impugned select list notified by the respondents. He claims serious prejudice to his rights.

Respondents 1 to 3 have filed objections pleading therein that the grievances of petitioner projected through the representation were looked into

and sorted out by extending him benefit in respect of question No. 60 and 63 in Biology paper, 68, 28 & 33 in Physics paper and 47 in Chemistry

paper. Grievance in regard to other questions represented by the petitioner was found to be incorrect by subject Experts. It is further pleaded that

the representations made by interested candidates were consolidated and referred to two Experts in addition to paper setter for their opinion. The

key was revised and all answer sheets, inclusive of such candidates from whom there was no complaint, were evaluated according to the revised

key. It is further pleaded that the benefit of revised key was given to all candidates who had appeared in the Common Entrance Test. It is pleaded

that the petitioner is much below in merit and cannot surpass the students who figure above him in the merit list. As per the Board guidelines the

candidates in CET were asked to submit representation within two days, if any, against question papers. The representations so received were sent

to two subject Experts in each paper in addition to paper setter and the key was revised in light of the opinion of the Experts. The benefit was

given to all the candidates appearing in CET. It is further pleaded that the petitioner has been selected for BDS Course as per his merit and rank

and he has willingly accepted the admission in Dental College. It is further pleaded that counseling for provisional admission in four Medical

Colleges was conducted as per merit and no counseling was held exclusively with regard to ASCOMS for admission in MBBS Course. Seats of

MBBS Course available in Medical College Jammu/Srinagar and SKIMS have been filled up. The Board also filled up 50 seats of MBBS for

ASCOMS out of which 10 seats have been allotted to poor and backward category. The Board displayed the answer key on the official Website

after examination was completed. Petitioner's representation in respect of questions in Physics, Chemistry and Biology papers was examined by

the subject Experts. He got the benefit of those questions which have been found correct by the subject Experts. Petitioner did not represent

earlier against the question No's. 24, 27, 32 and 44 in Biology paper within the stipulated time of two days. Petitioner has made the addition of

new questions in the writ petition after having seen the revised key when he was called for re-totaling. As per the subject Experts the answer to

those questions given in the revised key was correct. It is further pleaded that out of 18 questions pointed out by the petitioner, 16 questions were

not answered correctly. It is pleaded that the merit awarded to the petitioner as per the answers is correct and the petitioner is not entitled to any

additional marks as his answers have been duly examined by the subject Experts with reference to citations of books referred by the petitioner in

his representation vis-Ã -vis other standard text books. Petitioner is much below in merit order and cannot surpass the candidates figuring above

him in the merit list. The merit of all the candidates who appeared in the CET has to be kept in view while deciding the merit position of the

petitioner. His case cannot be decided in isolation. It is pleaded that three Experts including the paper setter have revised the question paper and

the matter cannot be re-opened for further examination, which will open a Pandora's Box and will go endlessly. It is pleaded that no error has been

committed by the Board and the marks have been granted to all candidates upon consideration of their representations by subject Experts in

regard to correct answerers. The Board has published the key on Board's Website, but not the revised key. However, the revised key was shown

to all the candidates who visited the Board's office for re-totaling of marks secured in CET. The posting of revised key on the Board's Website is a

policy decision taken by the Advisory Committee. It is pleaded that the respondents have conducted the examination in a free and transparent

manner in accordance with the undertaking give in PIL pending adjudication before this Court. It is pleaded that the opinion of the subject Experts

for the questions raised by the petitioner cannot be disputed. Such answers being correct and the petitioner being well below the cut off marks, no

seat could be reserved for him.

Learned counsel for the petitioner submits that as many as 17 wrong questions were pointed out by the petitioner in his representation while

some other wrong questions were pointed out by the other candidates appearing in CET. However, Board has got the secret opinion which was

neither shared with the petitioner nor with this Court, whereas revised key was also not published. It is further submitted that for MBBS there are

three papers of 75 marks each and each question has four responses. As per the brochure selection was made subject to modification. Where the

key is incorrect, fresh evaluation is to be made. Mr. Raina learned senior counsel submits that two booklets were published by Experts

immediately after the CET was over. 17 questions were pointed out as being wrong. It is submitted that the opinion of Experts sought by the

respondent-Board pointed out six errors which were rectified. Thus, the matter was required to be referred to an independent Expert for re-

evaluation, final selection being consequential thereto.

Mr. Anil Sethi, learned counsel for the respondent-Board submits that the representations of the petitioner and other interested candidates with

regard to wrong questions/errors have been considered by two subject Experts in addition to the paper setter and benefit of six correct answers

has been given to the petitioner, who figures very low in merit and could not make it to the cutoff point. The issues raised by the petitioner are

covered by Qazi Basra's case and same cannot be re-opened at regular intervals as observed by the Hon'ble Division Bench in the same case.

Heard and considered.

Learned counsel for the petitioner relied upon a number of authorities, the relevant one's being referred to herein below.

In Convener, MBBS/BDS Selection Board and ors v. Ghandan Mishra and anr reported in (1995) Supp (3) SCC 77 the Hon'ble Apex

Court, while dealing with matter pertaining to conducting of examination for selection of candidates for admission to MBBS/BDS Courses for

Academic year 1993-94 with petitioner alleging that some of the objective type questions in the entrance examination contained incorrect

propositions and the key answers were manifestly fallacious and wherein the High Court with the consent of parties constituted an Expert

committee of five persons to examine the correctness of key answers, set aside the admission of candidates made to course on the basis of list

declared defective by the High Court.

In Rajesh Kumar and Others etc. Vs. State of Bihar and Others etc., , the Hon'ble Apex Court was dealing with a case pertaining to selection

for appointment to 2268 posts of Junior Engineer (Civil). The selection process comprised of a written objective type examination held by the Staff

Selection Commission. The evaluation of the answer scripts was assailed by 13 unsuccessful candidates. The High Court referred the ""model

answer key"" to Experts and based on the report of the two Experts, High Court found that 41 model answers out of 100 were wrong, thus entire

examination was held liable to be cancelled. In Letters patent Appeal Division Bench of the High Court modified the order passed by the learned

Single Judge and directed fresh examination in Civil Engineering only, further holding that those appointed on the basis of impugned selection shall

be allowed to continue and given chance to appear in another examination. Upholding the view of Division Bench of the High Court, the Hon'ble

Apex Court held that the Division Bench was perfectly justified in holding that the result of examination pertaining to 'A' series question paper was

vitiated and thus was bound to affect the result of the entire examination qua every candidate. Once the result was vitiated by the application of a

wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The Hon'ble Apex Court further held that in view of

the nature of defects in the answer key appropriate course would be to correct the key and get the answer scripts evaluated on the basis thereof.

This process would not give any unfair advantage to any one of the candidates. The re-evaluation was considered as a better option.

Learned counsel for the respondents relied upon a Division Bench authority of this Court bearing LPA No. 223/2013 (OWP No. 1266/2013)

titled J&K Board of Professional Entrance Examination and others versus Qazi Basra and others, decided on 6th March, 2014 pertaining to

Common Entrance Test, conducted by J&K Board of Professional Entrance Examination on 27/28th July, 2013, wherein it was alleged by the

writ petitioners that at least 11 answers keys were wrong. After receiving representations from aggrieved candidates, same were referred to two

Experts in addition to the paper setter for their opinion. The answer keys in respect of few questions were revised and answer scripts of all

candidates were evaluated and benefit of revised answer key was given to all candidates. The writ Court allowed the aggrieved writ petitioners to

file representation indicating the questions and answers sought to be re-evaluated on the basis of revised answer keys. University of Kashmir was

directed to appoint Experts body of minimum three members each in Biology and Chemistry departments, headed by respective HOD's, to re-

evaluate the answer scripts of writ petitioners with further direction to examine whether any of the questions in the aforesaid papers were defective

or erroneous. The direction was assailed in LPA and the Hon'ble Division Bench dealing with the question of referring the issues raised in respect

of answer keys to the Experts every time a candidate projects grievance held as under:--

A question of fundamental importance which arises for consideration of the Court is to whether the BOPEE can be, in all circumstances,

asked to refer the issues raised in respect of answer keys to the experts any time and every time a candidate projects grievance. The answer has to

be No. A candidate, who takes a competitive examination/test, will never be satisfied with the result of such examination/test, in case he/she does

not get berth of his/her choice in a particular professional course/discipline/stream or in a college. If such tendency will be encouraged by directing

for revaluation of questions and answer keys at regular intervals, then selection process will never come to a logical end. In such circumstances, the

selection process will always remain conclusive. The selection process has to be concluded within remain inconclusive. The selection process has

to be concluded within reasonable time and in a fair manner. In view of the mandate contained in the MCI Regulations and the judgments of the

Hon'ble Supreme Court, a time frame has been fixed for concluding the selection process. In respect of MBBS/BDS course, 30th September of

every year is the last date of making of admissions. However, in view of law laid down by the Hon'ble Supreme Court in case titled Asha Vs. Pt.

B.D. Sharma University of Health Sciences and Others, in rare and exceptional cases, admission can be granted even after cutoff date or can be

directed to be granted in the next academic session.

In the facts of this case, the BOPEE, after receiving representations referred the matter to the Committee of two experts and the paper setter

and after receipt of the report from them, marks were awarded to the candidates. The selection process would stand concluded after fresh

exercise was conducted by the experts in respect of questions and answer keys, about which doubts were raised. Thus, there was no further

scope for issuance of direction for referring the questions and answer keys, which have been projected by the respondent-writ petitioner in the writ

petition or which she would project in her representation along with answer keys/revised answer keys, to the experts and/or paper setter. Such a

direction has the effect of keeping the selection process wide open and providing chance to other candidates, not satisfied with their merit position,

to seek similar reliefs.

The respondent-writ petitioner has been provided opportunity to project as many questions as she wishes by filing representation. Such

course, if permitted to be adopted, will not stand on the touch stone of Article 14 of the Constitution, as other similarly circumstanced candidates

are denied similar opportunity. Adopting of such a course will result in affecting the academic discipline and will keep the selection process open to

regular interjections, which course cannot be countenanced in law.

The clouds of uncertainty cannot be allowed to hover on such an important selection process. The impugned order suffers from yet another

serious infirmity because the Secrecy which is required to be maintained in making admissions in such type of professional courses, will be

jeopardized as the experts, sought to be appointed, can be easily identified. Maintaining secrecy is the hallmark of conducting such type of

competitive tests.

In the facts and circumstances of this case and for our above recorded reasons, the directions issued by the learned writ Court, which are

impugned in this Letters Patent Appeal (LPA), are held to be unwarranted and illegal. The Appeal is, accordingly, allowed and the impugned order

dated 29-11-2013 is set aside. Consequently, OWP 1266/2013 also stands dismissed along with connected CMPs.

It is not in controversy that BOPEE conducted the entrance examination for MBBS and other courses for the year 2013 on 27-28th July in

terms of notification No. 32-BOPEE of 2013 dated 05.08.2013. It is also not denied that the petitioner appeared in the entire examination test and

his name figured at serial No. 508 with merit of 165 marks out of total 225 marks. Petitioners claims to have verified the correctness of the answer

key published by the respondents from various books, authorship whereof is attributed to some Experts in the field. His contention is that answer

key published by the respondents carried wrong answers including incorrect options in some cases. He indicated such errors classifying the same in

four categories. His further contention is that he submitted 18 questions which were not carrying the correct answers or contained more than one

correct answer or other omissions. According to petitioner, respondents have dealt with only 12 revised questions while the revised key has not

been published. Thus the petitioner disputes the correctness of marks awarded to him and according to him he was entitled to at least 21.6 marks

more making the grade of petitioner up to 186.6 marks. Thus, the petitioner assails the selection list notified by the respondents where the cut off

merit in open merit category in MBBS is 177, 176.6 and 177 for Government Medical College, Jammu, Srinagar and SKIMS respectively.

Disputing the factual position respondents pleaded that the representations of petitioner, whenever made, were looked into and his grievances were

sorted out. Reference is made to the benefit extended in regard to two questions out of 9 questions in Biology paper, 03 questions out of 8

questions in Physics paper and one question out of two questions represented against in regard to Chemistry paper. Other suggestions represented

by the petitioner were found to be incorrect by the subject Experts. It emerges from the pleadings of respondents that all representations from

interested candidates were consolidated and referred to two Experts in addition to the paper setter for their opinion. According to BOPEE

guidelines the Board has the power to review the provisional selection list in case of any bona fide error, lapse, mistake, fraud, misrepresentation or

glaring injustice that occurs or is brought to its notice at any stage of selection process or even after the admission. Each question is provided with

four responses of which only one is most appropriate answer. According to BOPEE guidelines the interested candidates appearing in CET are

required to make representations against the question papers within two days. The representations, in the instant case, are said to have received

both at Jammu and Srinagar. Same are said to have been consolidated and placed before a Committee of two Experts in addition to the paper

setter. This mechanism is provided to look into all possible errors that may have crept in to cover all categories of errors in question papers, or in

the answer key. The respondents are specific in their plea that the key was revised in light of opinion of Experts and its benefit was extended to all

candidates including those who did not make any representations. It is thus manifestly clear that a mechanism exists to rectify the errors and revise

the answer key based on the opinion of subject Experts sitting together with the paper- setter with further provision for re-evaluation of all the

answer scripts in the light of revised key. The stand taken by BOPEE is that in the instant case question papers together with the representations

were sent through secret agency to two Experts in addition to the paper setter for their opinion and the answer key was revised accordingly. It is,

therefore, abundantly clear that question papers have been examined by the two subject experts in addition to the paper setter. The decision

whether a question is correct or not, falls in the realm of subject Experts and the decision taken by the subject Experts sitting together with the

paper setter has to be treated as final. The Court cannot substitute its own view in place of the view taken by the Experts. Nor would it be prudent

to re-open such decision with grievances pouring in time and again thereby opening a Pandora's Box. This would have the result of re-opening of

the selection process every time a grievance is projected and subjecting all selection made to re-evaluation with most undesirable consequences of

jeopardizing interests of selected candidates. After all there has to be an end to the selection process and it cannot be the subject of re-evaluation

each and every time a candidates seeks to assail the selection process. Guidelines of BOPEE providing a mechanism for entertaining

representations within two days against wrong question papers or wrong answer key fairly enough addresses the issue of errors having occurred in

the question papers or in the answer key. The errors found necessarily warrant revising of the answer key and consequent re-evaluation of answer

scripts. Plea raised by the respondents that the benefit of errors detected was extended to the petitioner together with all candidates irrespective of

the fact that such candidates had or had not represented against such wrong questions or wrong answer keys, takes care of the anomalies and

does not warrant referring the matter to Experts beyond the mechanism of BOPEE guidelines. The Committee of subject Experts and the paper

setter are said to have examined the answers given by the petitioner with reference to the books referred to by the petitioner in his representation.

In regard to publication of revised key the respondents have specifically pleaded that in accordance with past practice BOPEE posted answer key

on Bopee's Website. The revised key was shown to all those candidates including the petitioner who visited the BOPEE office for re-totaling of

marks secured in CET. There is hardly any scope to dispute the correctness of proposition advanced on behalf of respondents that the opinion of

subject Experts cannot be disputed and questioning of the correctness of answers decided by the Experts with regard to 17 questions raised by the

petitioner in the writ petition is not warranted.

The ratio of judgment delivered by Hon'ble Division Bench of this Court in Qazi Basra's case (Supra) squarely applies in the facts and

circumstances of instant case. Referring the matter to subject Experts in supersession of the mechanism provided in BOPEE guidelines is fraught

with serious consequences as the identity of Experts would become public thereby imperiling the integrity of the institution and compromising with

secrecy required to be maintained in making admission in such type of professional courses.

I do not find any merit in the petition, and the same is, accordingly, dismissed along with connected CMAs.

Interim direction, if any, shall stand vacated.

Connected Contempt No. 158/2013 shall also stand dismissed.