Shivin Chaudhary vs Guru Gobind Singh Indraprastha ...
2015 Latest Caselaw 4871 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                 Date of decision: 10th July, 2015

+       W.P.(C) No. 6073/2015 & CM No. 11032/2015 (for interim relief)
        TRIPTI JHA                                                    ..... Petitioner
                                  Through:       Mr. Rana Mukherjee, Sr. Adv. with
                                                 Mr. C.D. Singh, Advocate.
                                               Versus
        GURU GOBIND SINGH INDRAPRASTHA
        UNIVERSITY & ANR                          ..... Respondents
                     Through: Mr. Mukul Talwar, Senior Advocate
                               with Mr. Vaibhav Kalra, Advocate for
                               GGSIPU.
                             AND
+                                          W.P.(C) No. 6066/2015
        SHIVIN CHAUDHARY                            ..... Petitioner
                    Through:Mr. Girdhar Govind and Mr. Puneet
                            Maheshwari, Advs.
                       Versus
    GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
    & ANR                                       ..... Respondents
                  Through: Mr. Mukul Talwar, Sr. Adv. with Mr.
                            Vaibhav Kalra, Adv. for GGSIPU.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. The petitioner in W.P.(C) No.6073/2015 had appeared in the Common

Entrance Test (CET) conducted by the respondent no.1 Guru Gobind Singh

Indraprastha (GGSIP) University [the respondent no.2 is the In-charge

(Admission) of the respondent no.1 GGSIP University] for admission to the

MBBS course in the Academic Year 2015-16, the result of Stage-II whereof

was declared on 27th May, 2015 but, just before the commencement of

counselling was revised on 20th June, 2015. The reason given by the

respondent University for revision in result, as per the petition, was (a) that

consequent to the declaration of the result on 27th May, 2015, certain

applications were received for inspection of OMR answer sheets; (b) the said

applications were considered as per the extant regulations and the applicants

allowed to inspect their OMR answer sheets along with relevant questions

booklet and corresponding answer key; (c) some of the applicants expressed

doubt over the answers to some of the questions, particularly in Chemistry

part in the answer key and requested for review of the answer key; (d) the

matter was referred to a Committee of experts to comprehensively examine

the test booklet series and respective answer keys in the light of doubts

expressed; and, (e) the Committee made certain recommendations and in

accordance with the said recommendations 21 marks were awarded to all the

candidates and answer to 11 questions of Chemistry section identified as

incorrect were rectified by replacing with the correct answers and corrected

answers keys used for re-evaluation and answer to one question in Zoology

section was identified as incorrect in the answer key of "A" series and was

rectified by replacing with the correct answer and corrected answer keys

were used for re-evaluation.

2. As a result of the aforesaid, the rank of the petitioner in the result of

the examination was changed from 155 to 232. The petitioner filed this

petition challenging the said revision in result on the ground, (i) that as per

the Admission Brochure published by the respondent University, no request

for re-checking, re-evaluation, re-assessment or scrutiny of OMR sheet was

to be entertained; (ii) however the respondent University contrary thereto

admittedly entertained the applications for inspection of OMR sheets and on

the basis thereof revised the result; (iii) that the revised result was thus in

contravention of the Guidelines provided in the Brochure of Admission; and,

(iv) that the revision in the result was even otherwise non-transparent and

arbitrary.

3. Reference in the petition itself is made to, (a) Pramod Kumar

Srivastava Vs. Chairman, Bihar Public Service Commission AIR 2004 SC

4116 to contend that in the absence of any provision for re-evaluation, no

candidate has any right thereto; and, (ii) Rupinder Singh Vs. The Punjab

State Board of Technical Education & Industrial Training, Chandigarh

2001 (1) SLR 759 (Full Bench) (Punjab & Haryana) to contend that

Brochure in relation to admission to any course has got the force of law.

4. The petitioner, in the petition, has claimed the reliefs of, (a)

conducting the counselling on the basis of the result as originally announced;

and, (b) quashing the revised result and revision of the merit list to as earlier

announced.

5. The aforesaid petition came up first before the Vacation Bench on 26 th

June, 2015 when notice thereof was issued and the statement of the counsel

for the respondent University, appearing on advance notice, to the effect that

the counselling was not to be held at least till 29 th June, 2015 was recorded.

The counsel for the respondent University on 29 th June, 2015 filed a

counter- affidavit in the Court and on request of the petitioner the matter was

adjourned to 30th June, 2015 when arguments were heard and judgment

reserved.

6. The respondent University in its counter affidavit has pleaded, (i) that

during the examination various representations were received from the

candidates that there were some wrong questions in the test booklets and the

observers deputed by the respondent University at various examination

centres also reported so; (ii) that as per the Policy of the respondent

University with respect to common entrance tests held by it for admission to

different courses, contained in the Office Order dated 25th February, 2012, if

there is a printing mistake in the question or the question is incomplete due

to want of some data or text, the question will not be considered for

evaluation and all marks of that question will be given to all candidates; (iii)

that pursuant to the said representations it was concluded that there were five

erroneous questions, three in Physics section and two in Chemistry section

and accordingly a decision was taken to award 15 marks over and above the

marks secured by each candidate to all the candidates; (iv) that thus, though

the petitioner had secured 373 marks but in the result as originally declared

she was awarded 388 marks and as per which her rank was 155; (v) that after

the declaration of result, a number of candidates applied for inspection of

their OMR sheets; (vi) that though as per the Information Bulletin the same

was not permitted but was allowed as per observations of this Court in order

dated 7th May, 2015 in LPA No.5431/2014 titled Master Rajat Mann Vs.

Guru Gobind Singh Indraprastha University; (vii) some of the said

candidates, post inspection of OMR sheets and answer key, expressed

doubts over the correctness of some of the answers in the answer key,

particularly in the chemistry part and requested for review of the answer

key; (viii) the matter was referred to a Committee of experts and in

accordance with recommendation whereof the result was revised; (ix) that in

the revised result, the total marks of the petitioner were increased from 388

to 400; (x) however the ranking of the petitioner moved from 155 to 232;

(xi) that on 25th June, 2015 notice was published inviting all candidates to

come and inspect their answer sheets along with copy of the question paper

and the correct answer key; (xii) that the revision of the result is bona fide

and in good faith; and, (xiii) the respondent University suo motu took the

appropriate measures to remedy the wrong which was inadvertently there in

the result declared on 27th May, 2015.

7. Though the petitioner availed of opportunity to file rejoinder but has

not filed any rejoinder.

8. The senior counsel for the petitioner, during the hearing, admitted that

the petitioner, inspite of Notice supra dated 25th June, 2015 of the respondent

University giving opportunity to all candidates to inspect their answer

sheets, question paper and the answer key, had not availed of the said

opportunity.

9. The petitioner, neither in the pleadings nor during the hearing, made

out any case of any error in the revised result. The senior counsel for the

petitioner, during the hearing, also did not find any fault with the

recommendations of the Expert Committee leading to the revision of the

result.

10. In fact, the senior counsel for the petitioner in the face of the aforesaid

situation did not even press the reliefs claimed in the petition of quashing of

the revised result and did not seek any direction to the respondent University

to make admissions as per the result as originally declared. On the contrary,

the relief which was sought during the hearing, was of cancellation /

scrapping of the CET aforesaid and of a direction to conduct a fresh CET.

11. In this respect the senior counsel for the petitioner contended that

once it has been proved that there were grave errors in a large number of

questions as well as in the answer key, admissions ought not to be permitted

to be made on the basis of result of such an examination. Reliance obviously

was placed on the recent dicta dated 15th June, 2015 of the Supreme Court in

W.P.(C) No.298/2015 titled Tanvi Sarwal Vs. Central Board of Secondary

Education scrapping the All India Pre Medical Test and it was argued that

on the same reasoning the examination aforesaid should also be scrapped.

Strong reliance was also placed on the judgment of a Single Judge of the

Allahabad High Court in Vinod Kumar Tripathi Vs. State of U.P.

MANU/UP/2063/2007.

12. It was additionally argued, (a) that the revision of the result was

effected without any notice to all the candidates who had taken the

examination; (b) that before effecting the corrections in the answer key,

notice to each of the candidates should have been given; (c) the corrections

effected were not notified on the website; (d) that the candidates were kept

totally in the dark; (e) that the entire process was thus vitiated; and, (f) that

the corrections were effected in a hurry and for which there was no need. It

was further contended that the action of the respondent University was

lacking in procedural fairness.

13. Per contra, the senior counsel for the respondent University contended

that, (i) that the petitioner, without specifically seeking in the petition,

cannot be granted the relief of setting aside / scrapping of the entire

examination; (ii) that owing to the corrections effected suo moto by the

respondent University even prior to the declaration of the result on 27th May,

2015 the total marks of the petitioner were increased from 373 to 388; (iii)

that owing to the subsequent revision of the result, the marks of the

petitioner were further enhanced to 400; (iv) that thus, the petitioner instead

of being adversely affected by the corrections / revision made, has benefited

therefrom; (v) it is a different matter that other candidates have benefited to

a larger extent from the said corrections / revision and owing to which the

rank of the petitioner has been setback from 155 to 232; (vi) that the

petitioner has not challenged the corrected answer key and in fact did not

even deem it necessary to seek inspection of her OMR sheet, question paper

and answer key inspite of opportunity therefor given vide notice dated 25 th

July, 2015; (vii) that the petitioner has not challenged the suo motu

correction by the respondent University which led to her getting 15

additional marks; (viii) the petitioner has not made any allegations of action

of the respondent University being biased or mala fide or motivated or being

perverse; and, (ix) that the corrections / revision aforesaid have been made

on the recommendations of an Expert Committee of Educationists and this

Court ought not to substitute its own opinion for the same .

14. The senior counsel for the petitioner in rejoinder has argued that, (a)

the time of three days given on 25th June, 2015 for inspection of the OMR

sheet, question paper and answer key was too short; (b) that in fact the

petitioner had filed this petition on 24th June, 2015 and thus did not feel the

need to avail of the Notice dated 25th June, 2015 of inspection; (c) even

otherwise such inspection would not have entitled the petitioner to examine

the OMR sheets of others; and, (d) that the petitioner should be permitted

inspection of the OMR sheets of all the candidates to satisfy her of the

correctness of the result declared by the respondent University.

15. I have considered the factual position as emerges from the aforesaid

and the rival contentions.

16. At the outset, it may be recorded that the Division Bench of this Court

of which the undersigned was a member, in Master Rajat Mann 219 (2015)

DLT 791 (supra), concerned with the CET held by the respondent University

for admission to the MBBS course of the Academic Year 2014-2015 and its

Policy of not entertaining any requests of re-evaluation / re-checking of

OMR sheets, had directed the respondent University to review its Policy,

Rules, Regulations qua question paper, answer key and OMR answer sheets.

In the light of the said direction, no error can be found in the action of the

respondent University of, notwithstanding the terms and conditions of its

Admission Brochure, entertaining the requests for inspection of OMR

answer sheets and answer key and entertaining objections / representations

thereagainst. Notice in this regard may also be taken of the order dated 8 th

April, 2015 of the same Division Bench in WP(C) No.2275/2010 titled

Rajeev Kumar Vs. Union of India MANU/DE/1094/2015 concerned with

JEE examination held by CBSE and IITs for admissions to IITs and NITs

and which examinations also did not have proper provision for entertaining

objections to answer key and with respect whereto also similar directions

were issued. In the light of the said judicial pronouncements, the action of

the respondent University of allowing inspection of OMR sheets and answer

key and entertaining objections with respect thereto, all contrary to the terms

of its admission brochure, which otherwise undoubtedly is binding and

cannot be changed, cannot be found fault with. It may however be noticed

that a provision for correction of mistakes already existed in the office order

dated 25th February, 2012 (supra) of the respondent University and thus the

only violation of the Admission brochure is in allowing inspection to

candidates and which led to discovery of mistakes.

17. I had even otherwise during the hearing enquired from the senior

counsel for the petitioner that if he is not able to find fault with the

corrections / revision effected by the respondent University, would not

granting the relief of quashing the revised result and directing the respondent

University to make admissions in terms of the result as originally announced

amount to admitting students who had answered wrongly and rejecting

admission of students who had answered correctly and allowing a mistake of

the respondent University which though had been detected, to be

perpetuated.

18. It was further enquired, whether the petitioner, in law, can be granted

the relief of admission when as per the revised / corrected result she may not

be entitled to admission. To do so, in my view would amount to converting

into reality what was said by Charles Dickens in a work of fiction „Oliver

Twist‟ that "law is an ass". Supreme Court in M.S. Grewal Vs. Deep

Chand Sood (2001) 8 SCC 151 held that, technicalities there might be many

but the justice oriented approach ought not to be thwarted on the basis of

such technicality since it cannot be and ought not to outweigh the course of

justice. Earlier also in Busching Schmitz Private Ltd Vs P.T. Menghani

(1977) 2 SCC 835, it was held that the principle of unconscionability clothes

the Court with the power to prevent its process being rendered a parody.

19. To be fair to the senior counsel for the petitioner, he did not urge so.

He on the contrary contended that it is for this reason only that he is seeking

cancellation of the examination.

20. I may however add that the Supreme Court in Sahiti Vs. Dr. N.T.R.

University of Health Sciences (2009) 1 SCC 599 rejected the contention that

in the absence of specific provision, re-evaluation cannot be ordered. It was

held that re-evaluation of answer scripts in the absence of specific provision

is perfectly legal and permissible. It was further held that the Vice

Chancellor is the conscience keeper of the University and is entrusted with

the responsibility of overall administration of academic as well as non

academic affairs. A distinction was also drawn between the right of the

student or candidate to claim re-examination / re-evaluation and the power

of the Board / University to order re-evaluation of answer books if factual

scenario so demands. It was further held that when it is found that award of

marks by an examiner is not fair or that the examiner is not careful in

evaluating the answer scripts, re-evaluation may be found necessary.

Reference in this regard may also be made to the judgment of the High

Court of Punjab and Haryana in Surinder Pal Singh Vs. State of Punjab

(2013) SCC Online P&H 8843 where also suo motu re-evaluation was

upheld.

21. I may notice that re-evaluation in the present case is of the OMR

answer sheets of all the students, across the board and not of some of the

students only. No fault or arbitrariness can be found with the said action of

the respondent University.

22. That brings us to the plea of the senior counsel for the petitioner for

cancellation of the examination and holding of fresh examination. I have

recently in judgment dated 1st July, 2015 in W.P.(C) No.6172/2015 titled

Tushant Vs. University of Delhi in this context held that:-

"10. No case for annulment of examination is made out. Competitive examinations, holding whereof takes mammoth organization, cannot be annulled on mere conjectures and surmises. It cannot be lost sight of that annulment of examination and consequent holding of fresh examination (which takes re-organization and hence time) ultimately delays the entire admission process and commencement of academic session and which in turn has cascading effect on subsequent years or reduces the length of the academic year. The same also results in the students being inconvenienced and being unable to make choices, of admission in other colleges / universities or subjects, which they can make with timely declaration of results and admission. Holding of fresh examination also, besides costing money, takes considerable effort. Annulment of examination without proper cause will thus be detrimental

to the University as well as the large number of candidates taking the examination and against the public interest and would amount to a cure worse than disease. The Supreme Court in Onkar Lal Bajaj Vs. Union of India (2003) 2 SCC 673 while dealing with a challenge to the en masse cancellation of all allotments of retail outlets for marketing of petrol and diesel and finding that the only reason for such en masse cancellation was that a „controversy‟ had been raised in the media and that there was otherwise no application of mind and none of the allotments made had been examined held such en masse cancellation to be arbitrary and contrary to public interest. It was held that the mere reason that a 'controversy' had been raised by itself could not clothe the Government with the power to pass such a drastic order which has a devastating effect on a large number of people. It was held that such en masse cancellation could be resorted to only on finding a large number of such selections to be tainted and segregation of good and bad being difficult and a time consuming affair. The examinations are thus not to be annulled lightly, on the mere asking of any one with the allegations of possibility of the same having been corrupted. Only when it is sufficiently established that the examination though purportedly conducted was no examination and can no longer be treated as a test of proficiency of students taking the same or had ceased to be competitive and that the defects / malpractices therein had seeped to such an extent as to make it impossible for the examining authority or the Court to determine a fair result of the examination would the Court, in my opinion, be justified in annulling an examination.

11. The Supreme Court in Ashok Lenka Vs. Rishi Dikshit (2006) 9 SCC 90 though concerned with en masse cancellation of excise licenses held that though in law it is permissible to cancel the entire selection process if it is held that the same is tainted to such an extent that it may not be possible to separate the innocent from the tainted ones, as for example in a case of mass cheating adopted by the

students in a Board Examination, should not be resorted to if it is possible to separate the innocent from the tainted ones. It was held that en masse cancellation resorted to without a cause would be violative of Article 14 of the Constitution of India. Similarly in Union of India Vs. Rajesh P.U., Puthuvalnikathu AIR 2003 SC 4222 held that applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of the selected candidates no infirmity could be found with reference to others is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go bye to contextual considerations and throwing to winds the principle of proportionality in going farther than what was strictly and reasonably required to meet the situation. It was held that the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, totally in excess of the nature and gravity of what was at stake, rendering the decision of cancellation to be irrational.

12. Recently a Division Bench of this Court in Mukesh Rao Vs. Union of India MANU/DE/0985/2015 (and against which no SLP is found to have been filed) set aside the order of cancellation of the Limited Departmental Competitive Examination upon not finding that anything which could be said to incriminate the petitioners therein or the other candidates in general. It was held that the cancellation was effected merely on suspicion which was unfounded and that the candidates taking the examination cannot be made to suffer. It was further held that cancellation of the entire selection process on a mere suspicion that 4 out of the 1228 candidates could have used their mobile phones is not a sufficient ground to cancel the entire selection process and that the selected candidates ought not to be disqualified by ordering re-examination.

13. The Supreme Court recently in Joginder Pal Vs. State of Punjab (2014) 6 SCC 644 again reiterated that where the tainted candidates in a selection process could be segregated from others, innocent persons should not be punished with the tainted. The Supreme Court earlier also in Rajesh Kumar Vs. State of Bihar (2013) 4 SCC 690 had echoed the same sentiment in a case of erroneous answer key. It was held that innocent persons participating in the selection who had not contributed to the preparation of the erroneous key or the distorted result and who had not practiced any fraud or malpractice should not be punished. Accordingly the order of setting aside of the selection was substituted with a direction for re-evaluation.

14. There is another aspect. We are dealing with educational matters, in which the opinion of experts therein is not to be lightly interfered with. The respondent University, being the examining authority / body, on the aforesaid facts has not deemed a case for cancelling the entire examination to have been made out. The Courts are not to substitute their own opinion in such matters. The Supreme Court, reasoning so, in Chairman, J&K State Board of Education Vs. Feyaz Ahmed (2000) 3 SCC 59, set aside the order of the High court interfering with the decision of the examining body in that case to cancel the exam. To the same effect is the subsequent judgment in B. Ramanjini Vs. State of Andhra Pradesh (2002) 5 SCC 533. No case for finding fault with the decision of respondent University to, in the facts, not cancel the examination is made out."

23. In my opinion, the controversy herein is squarely covered by the dicta

aforesaid of the Supreme Court in Joginder Pal to which unfortunately

neither of the counsels referred. It is not the case of the petitioner that the

mistakes in the questions and in the answer key were such which made it

impossible to determine a fair result of the examination. The mistakes were

rectifiable and were rightly rectified and the corrected / revised result

represents the fair and competitive results of the examination. Such action

on the part of the examining body, of taking corrective steps on the basis of

expert opinion, was held to be reasonable even in Pankaj Sharma Vs. State

of Jammu & Kashmir (2008) 4 SCC 273.

24. As far as the reliance by the senior counsel for the petitioner on the

recent dicta of the Supreme Court in Tanvi Sarwal (supra) is concerned, a

perusal of paras 15&16 of the said judgment shows that the situation there

was entirely different. There, on investigation, facts suggesting mass scale

cheating with use of electronic media had been unearthed and owing

whereto it was felt that it was impossible to determine a fair result of the

examination. Such is not the case here. The respondent University has

corrected / revised the result in accordance with the recommendations of the

Expert Committee.

25. Notice may also be taken of the judgment of the Division Bench of

this Court in Gunjan Sinha Jain Vs. Registrar General, High Court of

Delhi 188(2012) DLT 627 with respect to the Delhi Judicial Services

Examination . There also, on finding errors in the questions and the answer

key, revaluation and revision of the result was ordered; and the examination

was not cancelled.

26. As far as the judgment supra of the learned Single Judge of the

Allahabad High Court is concerned, the reliance thereon is misconceived.

Therein the petitioner had challenged the answer key but the University had

contested the said challenge. The learned Single Judge after satisfying

himself of the merit in the challenge, and in the wake of the difficulty in

segregation of the legal selectees from the illegal ones, directed cancellation

of the examination. Moreover, the aspect whether the relief to be granted

was of correction of the result or of cancellation of the examination was not

considered. In any case in the light of the dicta aforesaid of the Supreme

Court, the said judgment is of no avail.

27. As far as the challenge to the procedure adopted by the respondent

University in rectifying / revising the result is concerned, it cannot be lost

sight of that the Supreme Court has by judicial pronouncements laid down

the schedule for examination to MBBS course and the last date for such

admissions. The time available for revision / rectification is thus limited. I

even otherwise am not agreeable with the contention that the respondent

University prior to rectifying the result was required to give an opportunity

of hearing to all the candidates appearing in the examination. Thousands if

not lakhs of students appear in such examinations and it is not practically

feasible to give any such opportunity. No such right of hearing also, in my

view exists in favour of the candidates. The respondent University, vide

notice dated 25th June, 2015 gave an opportunity to all the candidates to

inspect the question paper answer key and their respective OMR answer

sheet. This was in accordance with directions in Rajat Mann & Rajeev

Kumar (supra) If the petitioner or any other candidate on any such

inspection discovered any mistake in the answer key, he / she could have

pointed out the same. The petitioner did not choose to do so. The

contentions now raised that the petitioner is entitled to verify the result by

examining the OMR sheets of all the candidates is just a wild attempt to

have the examination, in which the petitioner assesses herself to have not

done well, annulled and to have a second chance / opportunity to improve

her result. The same cannot be allowed. The principle laid down by the

Supreme Court in Bihar School Examination Board Vs. Subhas Chandra

Sinha (1970) 1 SCC 648 and in Ram Preeti Yadav Vs. U.P. Board of High

School & Intermediate Education (2003) 8 SCC 311 that the examining

body is not required to give an opportunity to the examinees before taking a

decision to annul the examination would in my view be attracted to the

present situation also.

28. The petitioner in W.P.(C) No.6073/2015 thus cannot be granted the

relief pressed of cancellation of the examination.

29. W.P.(C) No.6066/2015 though preferred before the aforesaid writ

petition came up for hearing on 3rd July, 2015 and the arguments made by

the counsel for the petitioner therein were the same as the arguments in the

writ petition aforesaid. The counsel therein also pressed for the relief of

cancellation of the examination and holding of fresh examination. What has

been held above, applies equally to WP(C) No.6066/2015 as well.

30. Accordingly both petitions are dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW, J

JULY 10, 2015 „pp/gsr‟