Abhishekh Goel vs Ministry Of Human Resources ...
2010 Latest Caselaw 5728 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 16th December, 2010.

+         W.P.(C) No.4083/2010 & CM No.8106/2010 (for interim relief).
%

ABHISHEKH GOEL                                              ..... PETITIONER
                            Through:      Mr. J.P. Sengh, Sr. Advocate with Mr.
                                          Apurb Lal, Advocates.

                                       Versus

MINISTRY OF HUMAN RESOURCES
DEVELOPMENT & ANR.                       ..... RESPONDENTS
                 Through: Mr. Sanjay Jain, Sr. Advocate with Mr.
                           Arjun Mitra & Ms. Prabhsahay,
                           Advocates for R-2 with Prof. S. Aruna
                           Kumar, Chairman, IIT, Delhi.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may              YES
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             YES

3.       Whether the judgment should be reported            YES
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner appeared in the Joint Entrance Examination (JEE) held

on 11th April 2010 for admission to various Indian Institutes of Technology

(IITs) and in the result declared thereof, secured the All Indian Rank of

3946. Though the petitioner has secured admission but has filed the present

petition seeking direction to the respondent no.2 IIT to re-assess the marks

of the petitioner. It is the case of the petitioner that though his answers did

not tally with the Answer Key prepared by the respondent no.2 IIT but his

answers were correct and found correct by several expert teachers consulted

by the petitioner. The petition thus points out errors in the Answer Key

prepared by the respondent no.2 IIT. The petition also points out errors in

the multiple choice given in the question paper. The contention of the

petitioner is that if his answer sheet is so re-assessed, and his answers found

to be correct and those given in the Answer Key incorrect or vague, the rank

secured by the petitioner will improve substantially entitling the petitioner to

a better Institute and a course than the one which he has secured.

2. Notice of the petition was issued. No interim relief of reserving a seat

for the petitioner in the discipline of his choice was granted. The respondent

no.2 IIT filed a counter affidavit and to which a rejoinder was filed by the

petitioner. During the hearing on 29th July, 2010, the senior counsel for the

respondent no.2 IIT pointed out that the arguments being urged on behalf of

the petitioner did not emanate from the petition though raised in the

rejoinder and that the respondent no.2 IIT had had no occasion to respond to

the rejoinder. In the circumstances, the respondent no.2 IIT was given an

opportunity to file a sur rejoinder to the rejoinder.

3. The counsels for the parties were heard.

4. The senior counsel for the petitioner took pains to demonstrate :

i. even where as per the Answer Key also, two of the

options were correct and the petitioner had filled one

correct option, he was not given half marks therefor

though ought to have been;

ii. where according to the Answer Key two of the options

given were correct and the petitioner had filled up the

two correct options but had in addition filled up a wrong

one also, no marks given for the correct options filled up;

iii. the respondent no.2 IIT had admitted that there were

other correct answers also besides that given in the

Answer Key.

iv. that the rules of marking were changed in between,

reliance is placed on Tamil Nadu Computer Science

B.Ed. Graduate Teachers Welfare Society v. Higher

Secondary School Computer Teachers Association

(2009) 14 SCC 517 & Hemani Malhotra v. High Court

of Delhi (2008) 7 SCC 11 to contend that the same is not

permissible.

5. The senior counsel for the respondent no.2 IIT has taken pains to

explain the entire procedure of setting up of the question paper, Model

answers and the answer key. It is contended that the procedure is designed to

avoid human error and bias. It is contended that more than four lacs students

who had appeared in the exam have been tested on the same basis. With

respect to the contention of the petitioner of other answers than that in the

Answer Key also being correct, it is contended that the students of the level

of those who were to take the exams were expected to know of only one

correct answer though the other correct answer pertained to much higher

level of knowledge which the examinees were not expected to have. He has

also invited attention to the orders dated 19th May, 2010 and 2nd June, 2010

in W.P.(C) No.2275/2010 dismissing the writ petition challenging the same

exam.

6. After having heard the counsels at length, what emerges is that there

undoubtedly were some ambiguities and irregularities in the examination

and upon reassessment the possibility of the petitioner securing a better rank

cannot be ruled out. However so can the said possibility not ruled out with

respect to other examinees. The Supreme Court in Chandra Singh Vs.

State of Rajasthan AIR 2003 SC 2889 held that issuance of a writ is a

discretionary remedy and that the High Court while exercising its

extraordinary jurisdiction under Article 226 of the Constitution of India may

not strike down an illegality although it would be lawful to do so and in a

given case, may refuse to extend the benefit of discretionary relief to the

applicant. It was so reiterated in ONGC Ltd. v. Sendhabhai Vastram Patel

(2005) 5 SCC (454). Similarly, in Taherakhatoon Vs. Salambin

Mohammad (1999) 2 SCC 635 even at the time of the dealing with the

appeal after grant of special leave, it was held that the Court was not bound

to go into the merits and even if entering into the merits and finding an error,

was not bound to interfere if the justice of the case on facts does not require

interference or if the relief could be moulded in a different fashion. This

Court has echoed the same views in Filmistan Exhibitors Ltd. v. N.C.T.,

thr. Secy. Labour 131 (2006) DLT 648 by holding that even if there is a

violation of law, this Court is not bound to exercise discretionary

jurisdiction and in Babu Ram Sagar Vs. Presiding Officer, Labour Court

MANU/DE/9235/2006 by refusing to interfere in exercise of discretionary

powers inspite of holding the reasons given by the Labour Court to be not

convincing.

7. In the present case, the answer sheets of all the examinees have been

assessed on the same basis. Even if there were errors/inconsistencies therein,

it would be unfair to grant the relief on the basis thereof to the petitioner

alone. The Division Bench of this Court and the Apex Court considering the

size of the examination have refused to interfere in the same. Similarly if the

answer key applied by the respondent no.2 IIT is to be interfered with, there

is no reason why it should be interfered with only qua the petitioner and not

qua the others. The same would result in the entire academic session being

stalled and wasted and now that the academic session is underway for

several months, that is not deemed to be a feasible option. Though the senior

counsel for the petitioner has argued that the petitioner can be granted the

relief of migration to another IIT but as aforesaid, the petitioner alone cannot

be benefited from the change; the rules have to be the same for all the

examinees. The Supreme Court in Manish Ujwal v. Maharishi Dayanand

Saraswati University (2005) 13 SCC 744 held that the student community in

general, whether has approached the Court or not should not suffer on

account of demonstrably incorrect key answers and did not allow admissions

already granted to be disturbed.

8. Thus while dismissing the writ petition, it is hoped that the respondent

no.2 IIT would in laying down the examination procedure for the next year

have due regard to the deficiencies pointed out in this proceeding and ensure

that the same are removed in the next examination held. It cannot be lost

sight of that it is the career of future generations of this country which is at

stake. In Manish Ujjwal (supra) it was held that those who prepare the key

answers have to be very careful and abundant caution is necessary in these

matters in as much as a wrong key answer can result in the merit being made

a casualty and a young student at the threshold of career despite of giving

correct answer suffers. It was further held that since the Courts are slow in

interfering in education matters, it casts a higher responsibility on those

preparing the key answer. The Supreme Court warned that if casual

approach in providing the key answers is adopted, directions will have to be

issued for taking appropriate action indicating disciplinary action against

those responsible for a wrong and demonstrably erroneous key answers.

9. I am pained to see that inspite of such observations of the Apex Court,

sufficient case does not appears to have been taken in the present case. I find

that the Supreme Court earlier also in Kanpur University, Through Vice

Chancellor v. Samir Gupta (1983) 4 SCC 309 had directed that in a system

of multiple choice objective type test, care must be taken to see that

questions having an ambiguous import are not set in the papers; it was held

that such an examination leaves no scope for a reasoning or argument and

that is why the questions have to be clear and unequivocal. It was further

directed that if the attention is drawn to any defect in a key answer or any

ambiguity in a question set in the examination, prompt and timely action

must be taken by the University to declare that the suspect question will be

excluded from the paper and no marks assigned to it. As late as in Pankaj

Sharma v. State of J&K (2008) 4 SCC 273, the aforesaid directions were

reiterated. The incorrect answer keys continue to pollute the admission

process. Unfortunately, no heed appears to have been paid to the said

directions of the Court.

10. The respondent no.2 IIT in preparing the answer key/model answer

ought not to undermine the level of understanding and intelligence of the

examinees and cannot presume that the other correct answer would not be

known to the young minds. The respondent no.2 IIT to thus place the

deficiencies pointed out in this petition and this judgment before the

Committee next concerned with holding of the examination, for guidance.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 16th December, 2010 pp