Delhi High Court

Rahul Shrivastava & Anr. vs University Grant Commission on 23 October, 2013

Author: V. K. Jain

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 23.10.2013

+      W.P.(C) No.3182/2013
       RAHUL SHRIVASTAVA & ANR.
                                                        ..... Petitioners
                                       Through:Mr.M.R.Shamshad with
                                       Mr.Shashank Singh and
                                       Mr.Mohd.Abdullah Umar,
                                       Advocates
                    versus
        UNIVERSITY GRANT COMMISSION
                                                     ..... Respondent
                          Through:Mr.Amitesh Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
V.K. JAIN, J. (ORAL)

The petitioners before this Court appeared in National Eligibility

Test (NET), conducted by the respondent University Grants

Commission (UGC) in December, 2012. The results for the aforesaid

test were declared in March, 2013 and petitioners could not qualify the

said test. The grievance of the petitioner is that the answers contained in

the Answer Key in respect of as many as 7 questions were wrong as a

result of which they were not awarded the marks which ought to have

been awarded to them and that resulted in their not being able to qualify

the said test. However, during the course of hearing, the learned counsel

for the petitioner has restricted the challenge only to Questions Nos.22

and 25 in Paper II and Question No.30 in Paper III.

2. As regards Question No.22 in Paper II, admittedly, the Allahabad

High Court has already held that the answer contained in the Answer

Key was wrong and, in fact, option `D‟ is the correct answer. The

aforesaid decision of the Allahabad High Court has admittedly been

accepted by the respondent UGC. Therefore, the petitioner, if entitled to

the appropriate marks in respect of Question No.22 in Paper II in case

he had chosen option `D‟ as the correct answer.

3. Question No.25 and the Option given to the candidates to answer

the said question read as under:-

"25. Arrange the grounds of divorce in the order in which they appear in the Hindu Marriage Act, 1955. Use the codes given below:

(I) Mutual consent (II) Break down (III) Fault (IV) Customary

Codes:

        (A) III      II    I     IV
        (B) II       III   IV    I
        (C) I        II    III   IV
        (D) IV       III   I     II

According to the petitioners, Option `A‟ is the correct answer

whereas as per the respondent UGC, Option `B‟ is the correct answer.

However, it would not be seen on a perusal of Hindu Marriage Act,

1955 that neither „break down‟ nor fault is one of the grounds of divorce

specified in the Act. When the question requires the candidates "to

arrange the grounds in the order they appear in the Act" the pre-requisite

condition is that all the grounds stated therein should expressly appear

as grounds of divorce, under the Hindu Marriage Act. Therefore, it is

quite clear that the question, as framed, is wrong as none of the options

made available to the candidates can be a correct answer. The Question

No.25, therefore, ought to have been excluded altogether while

computing the marks of the candidates who appeared in the aforesaid

test held by respondent UGC. The learned counsel for the respondent

states that the nearest answer in the opinion of the Expert Committee

was Option `D‟ whereas according to the learned counsel for the

petitioner, the nearest answer would be Option `A‟ . In my view,

Option `D‟ in any case cannot even be the nearest answer to the question

since Section 29(2) which provide that nothing in the Act shall be

deemed to affect any right recognised by custom to obtain the

dissolution of Hindu marriage, whether solemnized before or after the

commencement of the Act, is the last Section in the Code whereas

Section 13(B) which provides for divorce by mutual consent comes

much earlier. In any case, since the candidates were required to arrange

the grounds of divorce in the order they appear in the Hindu Marriage

Act, this question could be a correct question only if all the four grounds

given to the candidates were expressly incorporated as the ground for

divorce under the provisions of Hindu Marriage Act. Since neither

break down of marriage nor fault of a spouse is a ground for divorce,

expressly specified in the Hindu Marriage Act, none of the option given

to the candidates can be said to be correct. Therefore, the only option

available to the Court is to direct exclusion of Question No.25, while

computing the marks of the petitioners.

4. Question No.30 in Paper III and the Option made available to the

candidates in respect of the said question reads as under:-

"30 „X‟ a Police Officer while executing a warrant of arrest against `Y‟ asks `Z‟ to identify `Y‟. `Z‟ knowingly tells that `M‟ is `Y‟ and consequently `M‟ is arrested. What offence is committed by `Z‟?

(A) Abetment by Instigation (B) Abetment by Aiding (C) Abetment by False representation (D) Abetment by Mischief"

According to the petitioners, Option `A‟ is the correct answer

whereas as per the Answer Key of respondent/UGC, Option `C‟ is the

right answer. The Illustration to Section 107 of the Indian Penal Code

reads as under:-

"Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C."

In view of the statutory illustration, there can be no dispute with

respect to the correct answer to the aforesaid question and Option `A‟

can be the only possible correct answer to this question.

5. As regards scope of interference by this Court in such matters, the

following view taken in W.P.(C) No. 5074/2013 titled Manoviraj Singh

Vs. University O Delhi & Anr. And connected matter decided on

25.9.2013 is relevant, which reads as under:

"14. ....Undisputedly it will not be appropriate for the Court to interfere with the admissions that have already been made by the University particularly when it is not known who are the candidates, who on the basis of correct answers would not have got admission and such candidates are not parties to the writ petition. But since as many as 45 seats have now become available on account of withdrawal by various candidates who were granted admissions by the University and there is no statutory prohibition against grant of admission after 31.7.2013, the University, in my view should re-work the result of all the candidates who appeared in the aforesaid examination, after substituting the wrong answers by the correct answers in respect of question Nos.22, 23, 41, 42, 45, 48, 49 & 50 in terms of this order and thereafter, fill up those seats out of the

candidates who are willing to take admission at this stage but such admissions need to be made strictly in the order of merit which shall be re-worked on the basis of the correct answers.

15. In Kanpur University, through Vice-Chancellor and Ors. vs. Samir Gupta and Ors. (1983)4 SCC 309, while considering challenge to correctness of key answers, the Apex Court, inter alia, held as under:-

"16. We agree that the key-answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct.....

17......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."

In the aforesaid case, Supreme Court confirmed the direction given by the High Court for re-assessment to certain questions on the ground that the answers provided in the answer key were wrong.

Manish Ujwal and Ors. vs. Maharishi Dayanand Saraswati University and Ors. (2005) 13 SCC 744, some of the candidates, who appeared in the entrance test, disputed correctness of the answers to certain question in Physics, Chemistry and Biology. The High Court sought expert opinion from Jodhpur University and Udaipur University with respect to answers to the aforesaid questions. The unanimous opinion of the experts in respect of six questions was that the answers, notified by the University to those questions were erroneous. However, despite that no relief to the petitioners was granted by the High Court. Setting aside the decision of High Court, the

Apex Court took the view that the student community could not be made to suffer on account of errors committed by the University. In this regard, the Court observed that first and paramount reason being the welfare of the students, wrong key answer can result in the merit being made a casualty.

In D.P.S. Chawla v. Union of India & Ors. 184(2011) DLT 96, a Division Bench of this Court found that the answer, contained in the answer key in respect of one question, was wrong. The Court, accordingly, enhanced the marks secured by the petitioner in the first paper form 49% to 50%, thereby declaring him successful in the examination and eligible for promotion.

In Gunjan Sinha Jain vs. Registrar General, High Court Of Delhi, W.P.(C) No. 449/2012 and connected matters, decided on 09.04.2012, a Division Bench of this Court found certain answers contained in the answer key in respect of Delhi Judicial Service Examination to be incorrect and accordingly substituted those incorrect answers by what the Court felt were correct answers."

The Division Bench in Gunjan Sinha Jain(supra) also excluded

from consideration certain questions which admitted of no correct

answer out of the options made available to the candidates.

6. The learned counsel for the respondent UGC states that there

were more than 7 lacs candidates who got registered in the aforesaid test

and a substantial number out of them would have actually appeared in

the test. According to the learned counsel for the respondent, it would

not be practically possible for them to re-compute the marks of all the

candidates at this stage. Even otherwise, the Court would not be

justified in directing re-computation of the marks of all the candidates

since some of them may have chosen the Option which, according to the

respondent UGC, is the correct answer and no view adverse to them can