Delhi High Court
Gaurav Jaiswal Through His Legal ... vs Union Of India Through Ministry Of ... on 7 January, 2021
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 07th January, 2021
+ W.P.(C) 6838/2020 & CM APPL. 23648/2020
GAURAV JAISWAL THROUGH HIS
LEGAL GUARDIAN ..... Petitioner
Through: Mr. Paras Jain, Advocate.
versus
UNION OF INDIA THROUGH MINISTRY
OF EDUCATION/NATIONAL TESTING
AGENCY & ANR ..... Respondents
Through: Mr. Dev P. Bhardwaj, CGSC
for UOI/R-1.
Mr. Arjun Mitra, Advocate for
R-2/IIT.
Mr. Amit Bansal & Ms. Seema
Dolo, Advocates for R-3/NTA
with Ms. Sarika Soam,
Representative of NTA.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
PRATEEK JALAN, J. (Oral)
The proceedings in the matter have been conducted through
video conferencing.
1. The petitioner was an aspirant for admission to the Indian
Institutes of Technology and other engineering colleges. He
participated in the Joint Entrance Examination ["JEE"] (Main)
conducted by the National Testing Agency ["NTA"] in January 2020
and September 2020. The grievance of the petitioner is that the final
scoresheet of the JEE (Main) examination published by the NTA in
September 2020 wrongly reflects the percentile in which he was
placed in the January 2020 examination.
2. Learned counsel for the parties inform me that the JEE (Main)
examination was conducted in January 2020, and any candidate
desiring to improve his/her performance was entitled to take the
examination again in September 2020. A scoresheet was issued after
the January 2020 examination, reflecting the percentile in which the
candidate was placed in that round. Another scoresheet, issued after
the September 2020 round, contained the candidate's result in both the
rounds of the JEE (Main). The eligibility of the candidate to take the
JEE (Advance) examination (necessary for admission to the IITs) was
dependent on the better performance between the January 2020
session and the September 2020 session. The JEE (Main) examination
is a computer-based examination conducted online. Candidates mark
their responses to the questions electronically on OMR (Optical Mark
Recognition) sheets, which are compared with the correct answers
according to the NTA answer key. Prior to the declaration of results,
NTA also uploads the answer key and the OMR sheets of the
candidates, to enable consideration of any challenge to the answer key.
3. In the present case, the petitioner claims that he was placed in
the percentile 98.8105888 in the January 2020 session. The petitioner
has annexed a print-out of his scoresheet as Annexure - 2 to the writ
petition (at page 23 of the paper book). He contends that this was the
scoresheet downloaded by him from the NTA website in January
2020.
4. The petitioner thereafter took the JEE (Main) examination again
in September 2020, whereafter a combined scoresheet was issued by
the NTA, a copy whereof has been annexed to the writ petition at
Annexure - 3 (at page 24 of the paperbook). In the combined
scoresheet, the petitioner is shown to have been placed in percentile
51.8105888 in the January 2020 session and percentile 71.3367318 in
the September 2020 session of the JEE (Main) examination.
According to the petitioner, this is the result of a technical error on the
part of NTA, and the combined scoresheet of September 2020 does
not correctly reflect the percentile in which he was placed in the
January 2020 session.
5. The NTA was added as a party (respondent No.3) to the present
petition by an order dated 23.09.2020, and notice was issued to it,
returnable on 24.09.2020. In the order dated 24.09.2020, the
contention of NTA is recorded to the effect that the scoresheet which
is attached at page no. 23 of the paperbook is a forged one, and NTA
was directed to file the original scoresheet. By a further order dated
25.09.2020, the petitioner's contention that the scoresheet at page 23
is the correct scoresheet was also recorded, and the petitioner was
permitted to appear in the JEE (Advance) examination held on
27.09.2020. It was further directed that the petitioner's result would
not be declared without further orders of the Court, and that the
petitioner would not be entitled to claim any equity on the account of
the said order.
6. Pursuant to the order dated 24.09.2020, the NTA filed (vide
diary no. 834002/2020) the original scoresheet of the petitioner, which
was published after the January 2020 session. The copy of the
scoresheet filed by the NTA shows that after the January 2020 session,
the petitioner was in fact placed in percentile 51.8105888. The NTA
has also filed a counter affidavit on 29.09.2020, in which it has sought
to substantiate its case regarding the forgery of the scoresheet by the
petitioner with the following averments: -
"1. That present Petition deserves to be dismissed at the
outset on the ground that Petitioner has not come before
this Hon‟ble Court with clean hands. The Petitioner has
premised his entire case on the basis of a forged and
fabricated Score Card for Joint Entrance Examination
(Main) January, 2020 (at page 23 as Annexure P-2),
which he claims he has downloaded from the website of
jeemain.nta.nic.in which is maintained for the JEE (Main)
Exam by Respondent No.3, National Testing Agency
(NTA). The said score card reflecting Petitioner‟s
percentile as 98.8105888, is not a genuine Score Card
which is writ large on the face of the document. A
comparison of the forged Score Card filed by the
Petitioner with the actual Score Card from the official
website of JEE (Main), shows great variances and points
out the following glaring editing and changes made in the
forged document:-
(i) The following score(s) have been fabricated in the
as JEE (Main) January 2020 Score Card produced by the
Petitioner (at page 23 as Annexure P-2):
Subject Original Fabricated
Score Score
Physics 78.9217920 98.9217920
Chemistry 10.4721474 99..4721474
Mathematics 65.5215020 98.5215020
Total 51.8105888 98.8105888
(ii) The score against Chemistry subject in the forged
document has two decimals, 99..4721474, which is
evidently edited. It is pertinent to mention that the
fabricated total score in percentile as well as its subject-
wise component percentile score have not been awarded to
any candidates of JEE (Main) January 2020.
(iii) The Score in digits, post decimal against Physics,
Chemistry, Mathematics and total, are identically similar
and only the digits before the decimal are different;
(iv) The entries against Person with Disability (PwD),
Gender, Nationality and the NTA Scores in Words are all
in block letters in the Score Card produced by the
Petitioner. On the other hand, these entry in the Score
Card of NTA, which is a standard format, is in sentence
form. It may further be mentioned that the Candidate‟s
particulars including Gender, Category and Person with
Disability (PwD) have been indicated as mentioned by the
candidate in the Online Application Form and are in
sentence form only.
The aforesaid variances irrefutably establish that the JEE
(Main) January 2020 Score Card filed by the Petitioner
has not been published by the NTA, the same being
different from the usual format of Score Card issued by
NTA."
7. The NTA has also annexed, alongwith its counter affidavit, a
report of the National Informatics Centre ["NIC"], which provides
technical support to the NTA. The NIC report dated 27.09.2020 states
as follows: -
"TO WHOMSOEVER IT MAY CONCERN
Subject: JEE (Main) 2020 - Candidate's Application
Number: 200310189671- reg.
1. The National Informatics Centre (NIC) is providing
Technical Support to National Testing Agency (NTA) for
the JEE (Main)-2020. Based on result data and cut-off
received form NTA, NIC published Score Card of
January and April/September 2020 on JEE(Main) portal.
2. As per the record available in database server, the
Score Card of the Candidate (having Application
Number: 200310189671, Name: GAURAV JAISWAL) for
January 2020 and April/September 2020 are enclosed
(200310189671-Scoresheet-JAN20.pdf and
200310189671-Scoresheet-SEP20.pdf).
3. As per the Score Card, the NTA Score obtained by
the Candidate are 51.8105888 Percentile in January
2020 and 71.3367318 in April/ September 2020.
4. Details of the Audit Trail of Application Number:
200310189671 are attached for reference
(200310189671-AuditTrail.pdf).
Yours sincerely,
Sd/-
(Mohd. Anwar Khan)"
Thus, according to the NIC also, the scoresheet placed on record by
the NTA is the correct scoresheet of the petitioner.
8. In addition to the above factual averments, Mr. Bansal, learned
counsel for the NTA, also submits in the course of arguments that in
the event the petitioner had been placed in percentile 98.8105888 in
the January 2020 session, he would have been assured of his eligibility
for the JEE (Advance) examination, and is very unlikely to have tried
his luck in the September 2020 round of the JEE (Main). He also
points out that, if the petitioner's case is accepted, he dropped from
being placed above the 98th percentile in January 2020, to below the
72nd percentile in September 2020.
9. The petitioner, on the other hand, has placed on record an
affidavit of his brother dated 24.09.2020, seeking to stand by the
scoresheet annexed at page 23 of the writ petition. The petitioner has
also filed a rejoinder to the counter affidavit filled by the NTA, in
which this contention has been reiterated.
10. In the rejoinder affidavit, a contention has also been raised to
the effect that there is a discrepancy between the petitioner's OMR
responses of the September 2020 session, as downloaded by the
petitioner and the copies placed on record by the NTA. According to
the petitioner, this shows tampering of his result by NTA, and casts
doubt on the credibility of the entire process.
11. Mr. Paras Jain, learned counsel for the petitioner, also relies
upon orders passed by this Court in petitions relating to the National
Eligibility cum Entrance Test (NEET), which is also conducted by
NTA. The contention of Mr. Jain is that this Court is examining
similar disputes regarding tampering of OMR sheets in those writ
petitions.
12. Mr. Bansal, on the other hand, submits that the cases regarding
the JEE and NEET are materially different, inasmuch as NEET is an
offline, physical exam, where the candidates fill physical OMR sheets
in hard copy, whereas JEE is an online, computer-based exam, where
no physical OMR sheets are filled in by the candidates. Mr. Bansal
specifically states that although in certain petitions regarding NEET,
this Court has called for the original documents in order to establish
the veracity of the contentions of the petitioners therein, there is no
case pending with relation to the veracity of the scoring in the JEE,
being a computer-based exam.
13. Without getting into the merits raised in other petitions against
NTA, I am of the view that in the present case, the contention
regarding the discrepancy in the OMR sheets is a red herring. The
petitioner's grievances in this regard relate to the September 2020
session, which is not the subject matter of the present writ petition at
all. There is no challenge in the petition to the September 2020 result
declared by NTA. The grievances of the petitioner are based only
upon the result which he claims to have achieved in the January 2020
examination being wrongly reflected in the combined scoresheet
published by the NTA in September 2020. In these circumstances, the
grievances of the petitioner regarding the OMR sheets of the
September 2020 examination are not germane to the determination of
this petition.
14. As far as the January 2020 examination is concerned, the
petitioner has clearly stated that he did not download his recorded
responses of January 2020 as he was satisfied with his performance in
that exam. The following averment in the rejoinder affidavit is
unequivocal on this aspect: -
"8. That on seeing the result of the Part-1, JEE Main
Examination, 2020 dated 17.01.2020 with percentile
score of 98.8105888, Petitioner like any prudent person
did not download his recorded response of January, 2020
dated 17.01.2020 as he was satisfied with his
performance. However, for JEE Main Examination
September, 2020 (Part-2), Petitioner downloaded his
recorded response from the official website of the
Respondent and, now, after matching the a) JEE Main
September, 2020 recorded response downloaded by
Petitioner with b) JEE Main September, 2020 recorded
response furnished by the Respondent in its Short
Affidavit before this Hon‟ble Court, Petitioner has been
astonished to observe that there is mis-match in the
recorded response of the JEE Main Examination,
September, 2020. This proves that there has been an
internal manipulation on the part of the Respondent,
firstly with the recorded response and, thereafter, with the
final result dated 12.09.2020."
(Emphasis supplied)
15. In these circumstances, it is impossible for the petitioner to
dispute at this stage that the OMR sheets of January 2020 placed on
record by NTA are incorrect.
16. Significantly, in answer to the specific query of the Court, Mr.
Jain submitted that the window for a candidate to download his/her
OMR responses from the NTA website is prior to the declaration of
results. In these circumstances, it appears that the contention of the
petitioner in the aforesaid paragraph that he did not download his
responses of January 2020 because he was satisfied with his score is,
at the very least, misleading. Mr. Bansal also confirms, upon
instructions from the representative of the NTA, who is attending the
video conference hearing, that the recorded responses of the
candidates can only be downloaded prior to the declaration of results.
In these circumstances, the explanation offered by the petitioner for
his failure to download the January 2020 OMR responses is not
worthy of acceptance.
17. This diversion having been dealt with, we return to the original
issue regarding the genuineness and veracity of the January 2020
scoresheet annexed by the petitioner at page 23 of the writ petition.
The petitioner claims this is the scoresheet downloaded from the NTA
website, and the inconsistent September 2020 scoresheet is the result
of a technical error; the NTA stands by the September 2020
scoresheet, and characterises the document at page 23 as false and
fabricated.
18. I am of the view that this is a matter entirely dependent on an
adjudication of disputed questions of fact and unsuitable for
determination in writ proceedings. Mr. Jain was given time to consider
this, and today cites paragraph 11 of the judgment of the Supreme
Court in Popatrao Vyankatrao Patil vs. State of Maharashtra & Ors.,
2020 SCC Online SC 291 [C.A. No. 1600/2020, decided on
14.02.2020] to submit that the existence of disputed questions of fact
does not entirely preclude the jurisdiction of the writ court. In
paragraph 11 of Popatrao, the Court relied upon ABL International
Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Ltd. &
Ors., (2004) 3 SCC 553, and held as follows:
"11. No doubt that, normally, when a petition involves
disputed questions of fact and law, the High Court would
be slow in entertaining the petition under Article 226 of
the Constitution of India. However, it is a rule of self-
restraint and not a hard and fast rule. In any case, this
Court in ABL International Ltd. v. Export Credit
Guarantee Corpn. of India Ltd. (2004) 3 SCC 553 has
observed thus:
"19. Therefore, it is clear from the above enunciation of
law that merely because one of the parties to the
litigation raises a dispute in regard to the facts of the
case, the court entertaining such petition under Article
226 of the Constitution is not always bound to relegate
the parties to a suit. In the above case of Gunwant Kaur
[(1969) 3 SCC 769] this Court even went to the extent
of holding that in a writ petition, if the facts require,
even oral evidence can be taken. This clearly shows that
in an appropriate case, the writ court has the
jurisdiction to entertain a writ petition involving
disputed questions of fact and there is no absolute bar
for entertaining a writ petition even if the same arises
out of a contractual obligation and/or involves some
disputed questions of fact""
19. I am afraid, learned counsel misses the point. Just because
something can be done in an appropriate case does not mean it must
be done in every case - there are cases where the factual disputes
raised may be appropriate for adjudication under Article 226, but that
is an exceptional position and not the general rule. This is clear
enough from the opening sentence of paragraph 11 of Popatrao, cited
by Mr. Jain, and placed beyond doubt by the observations in
paragraph 13 of the same judgment:
"13. It could thus be seen, that even if there are disputed
questions of fact which fall for consideration but if they
do not require elaborate evidence to be adduced, the
High Court is not precluded from entertaining a petition
under Article 226 of the Constitution. However, such a
plenary power has to be exercised by the High Court in
exceptional circumstances. The High Court would be
justified in exercising such a power to the exclusion of
other available remedies only when it finds that the
action of the State or its instrumentality is arbitrary and
unreasonable and, as such, violative of Article 14 of the
Constitution of India. In any case, in the present case, we
find that there are hardly any disputed questions of
facts."
20. The present case does not, in my view, fall within the exception
carved out by the Supreme Court. As detailed above, the NTA has
certainly raised a credible doubt as to the genuineness of the
scoresheet at page 23 of the writ petition. The technical agency
responsible, the NIC, has looked into the matter and supported its
stand. The NTA cannot be said, in these circumstances, to have acted
unreasonably or arbitrarily. The questions of forgery, fraud and
tampering raised in present case would require elaborate evidence, and
are not capable of summary adjudication under Article 226 of the
Constitution.
21. For the reasons aforesaid, the present writ petition is dismissed.
The petitioner is however at liberty to take such other remedy as may
be available to him in law, if he is so advised.
PRATEEK JALAN, J.
JANUARY 07, 2021
„pv‟
