Jammu & Kashmir High Court - Srinagar Bench

Mudasir Ahmad Thokar & Ors vs University Grants Commission & ... on 24 February, 2021

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR

                                                             Reserved on:17.02.2021
                                                          Pronounced on:24.02.2021

                                                                OWP No.2391/2018

                          Mudasir Ahmad Thokar & Ors.                      ...Petitioner

                                     Through: -Mr. Sheikh Umar Farooq, Advocate.

                          Vs.

                          University Grants Commission & Ors.           Respondents
                                     Through: - Mr. Shahbaz Sikander, Advocate-for R1
                                                Mr. Shakir Haqani, Advocate-for R2 to R4




                          CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.


                                                    JUDGMENT

1) The petitioners have challenged order bearing

No.F(Misc-Legc)KU/18 (Annexure-A to the writ petition)

issued by respondent No.3, whereby claim of the

petitioners with regard to their objections to the final

answer key has been rejected. They have also impugned

the result notification bearing No.01 dated 16.07.2018

pertaining to J&K SET, 2017-18, issued by respondents.

A further direction upon respondents to consider the

grievances of the petitioners and reframe the result of

petitioners has also been sought.

MOHAMMAD ALTAF BHAT 2021.02.25 14:15 I attest to the accuracy and integrity of this document

2) Briefly stated, case of the petitioners is that

respondent No.3 vide notification dated 30th of November,

2017, invited applications from eligible candidates for

State Eligibility Test-2017-18 exams. In response to the

said notification, the petitioners being eligible applied for

the same and appeared in the test which was conducted

by respondent No.3 on 11.03.2018. It is stated that vide

notice dated 19.03.2018, the respondent No.3 notified

the official key of various sets of question papers

pertaining to the aforesaid examination and

representations/queries regarding the said key were

invited from the candidates. The petitioners claim that

answers to some of the questions given in the key were

wrong and, accordingly, they responded to the aforesaid

notification. After taking note of these representations,

the respondent No.3 issued revised second key vide

notice dated 25th of May, 2018. Objections against the

modified key were again invited from the candidates. The

petitioners are stated to have responded to the second

key as well pointing out the errors therein, where after

respondent No.3 issued final answer key i.e. 3rd key as

well as the result notification on 16th of July, 2018. It is

averred by the petitioners that there were glaring

mistakes even in the 3rd key which were brought to the MOHAMMAD ALTAF BHAT 2021.02.25 14:15 I attest to the accuracy and integrity of this document

notice of respondents by making representations but the

same were not considered by the respondents.

3) It is the case of the petitioners that a perusal of the

3rd revised key would reveal that there are various

discrepancies in so far as the answers given to some of

the questions in different subjects are concerned. The

petitioners have given illustrations of those discrepancies

in their writ petition and annexed documents to support

their contentions. According to the petitioners, if these

mistakes/discrepancies in the third modified key are

corrected/set right, they are sure to succeed in the

examination and make the cutoff merit.

4) It has been submitted by the petitioners that

despite making a number of representations with the

respondents against the errors appearing in the final

answer key, no action was taken by them compelling the

petitioners to file a writ petition bearing OWP

No.1530/2018 before this Court. The said petition was

disposed of by the Court vide its order dated 20.08.2018,

whereby respondent No.3 was directed to look into the

grievances of the petitioners and pass a speaking order

within a period of two weeks.

MOHAMMAD ALTAF BHAT 2021.02.25 14:15 I attest to the accuracy and integrity of this document

5) It is alleged that the respondents, instead of

considering the grievances of the petitioners pursuant to

the direction of this Court, passed the impugned order

rejecting the claim of the petitioners in a casual manner

and thereby exhibiting non-application of mind. The

petitioners have challenged the action of the respondents

on the ground that the answers given in the final answer

key are demonstrably wrongly but this fact has not been

taken note of by the respondents while passing the

impugned order. According to the petitioners, instant

case is a fit one where this Court should intervene and

pass appropriate directions. The petitioners have relied

upon the judgments of the Supreme Court in the case of

Rajesh Kumar and Ors. Vs. State of Bihar and

Ors,(2013) 4 SCC 690, and Manish Ujwal & Ors. Vs.

Maharishi Dayanand Saraswati University, (2005) 13

SCC 744.

6) The respondents have resisted the writ petition by

filing reply thereto. Respondent No.1, University Grants

Commission, has filed a separate reply in which it is

submitted that no relief is being sought by the petitioners

against the said respondent and, as such, the writ

petition as against said respondent is not maintainable.

MOHAMMAD ALTAF BHAT It has been further averred that the respondent No.1 only 2021.02.25 14:15 I attest to the accuracy and integrity of this document

lays down the guidelines for holding of State Eligibility

Tests, accords accreditation of tests conducted by the

agencies other than UGC/CSIR, monitors the tests

conducted by other agencies and suggests follow up

measures and extends guidance and help to State level

agencies in the organization of tests. It has been further

averred that the University of Kashmir has been

identified as a nodal agency for conducting State

Eligibility Test on behalf of the Government of Jammu

and Kashmir and it has been provided accreditation by

the University Grants Commission to conduct the State

Eligibility Test. In short, the stand of respondent No.1 is

that it is not directly involved in the process of inviting

applications, conduct of examination, screening of OMR

sheets (answer sheets) and preparation of result of the

State Eligibility Test exam but its role is only to lay down

guidelines and monitor the tests.

7) Respondents 2 to 4 have, in their reply, while

admitting the factual aspects with regard to inviting of

applications for State Eligibility Test, participation of the

petitioners in the said test, issuance of answer keys

including the final answer key and the impugned merit

list, submitted that the representations against the

MOHAMMAD ALTAF BHAT answer keys, including those of petitioners, were taken 2021.02.25 14:15 I attest to the accuracy and integrity of this document

note of and considered by the respondents, where after

final answer key and merit list was issued on

16.07.2018. According to said respondents, the

complaints received at a belated stage cannot be re-

assessed as second revised key is the basis of declaration

of result which is not liable for any further changes. It

has been emphasized by the respondents that the final

answer key was received from the team of concerned

subject experts and was subsequently notified on the

official website of the University. It has been claimed that

ample opportunities were given to the students including

the petitioners to submit their grievances prior to

declaration of JK SET results 2017-18.

8) During the pendency of writ petition, vide order

dated 26.12.2019, the respondents 2 to 4 were directed

to produce the record and to file an affidavit highlighting

the issue that had been raised by the petitioners in their

objections to the answer key and the manner in which

those objections were dealt with by the expert committee.

9) In response to the aforesaid order, the respondents

have produced the record and have filed affidavit dated

21.10.2020. In the said affidavit, it has been submitted

by the respondents that the representations/grievances MOHAMMAD ALTAF BHAT 2021.02.25 14:15 against the answer keys were considered by the Expert I attest to the accuracy and integrity of this document

Committee on two occasions pursuant to notices dated

19.03.2018 and 25.05.2018, whereby objections were

invited against the answer keys. The respondents have

reiterated their stand that after issuance of final answer

key and final result, there is no scope for entertaining

any objections/complaints in view of guidelines of

University Grants Commission.

10) I have heard learned counsel for the parties and

perused the pleadings and record of the case.

11) Most of the factual aspects in this case are more or

less admitted by the parties. The respondent No.3 invited

applications from the eligible candidates for appearing in

State Eligibility Test and the petitioners responded to the

same and appeared in the said test. Vide notice dated

19.03.2018, queries regarding answer key that was

uploaded on the website of the University were invited

from the candidates, where after modified answer key

was uploaded on the official website of the University.

Vide notice dated 25.05.2018, again objections were

invited regarding modified answer key. It was, however,

made clear in the said notice that the result shall be

prepared as per the fresh key and no objections,

whatsoever, shall be received afterwards under any MOHAMMAD ALTAF BHAT 2021.02.25 14:15 I attest to the accuracy and integrity of this document

circumstances. The 3rd and final key along with final

merit list of candidates was issued on 16.07.2018.

12) The record produced by respondents 2 to 4 would

show that when objections were received with regard to

first answer key as well as when objections were received

with regard to modified answer key, the same were

referred to Expert Committee and on their

recommendations, third and final key was prepared and

notified. According to the petitioners, even the third and

final answer contains mistakes and discrepancies and

their representations against this final answer key were

never considered even after directions passed by this

Court in OWP No.1530/2018 dated 20.08.2018. The

petitioners allege that their grievances have not been

considered by the respondents and they have simply

rejected their claim without referring the matter to Expert

Committee.

13) The record produced by the respondents as well as

the affidavit filed by them on 21.10.2020 does suggest

that respondents 2 to 4 have not referred the

representations/objections raised by the petitioners to

the final answer key to any Expert Committee. The

respondents have taken a stand that as per the MOHAMMAD ALTAF BHAT 2021.02.25 14:15 I attest to the accuracy and integrity of this document

guidelines of the University Grants Commission, once the

final merit list and final answer key is issued, the

complaints/objections against the same cannot be

entertained. It is on the basis of these guidelines the

respondent No.3 has issued the impugned order rejecting

claim of the petitioners. The question arises whether

respondents 2 to 4 were justified in doing so in the facts

and circumstances of the case.

14) In the instant case, the respondent No.3 had invited

objections to the answer key, not once but on two

occasions, and the answer key has been modified twice,

where after third and final answer key was issued, on the

basis of which the merit list has been published. The

respondents had, while inviting queries/objections to

modified answer key, vide its notice dated 25.05.2018,

made it clear that the result shall be prepared as per the

fresh key and no objections, whatsoever, shall be

received afterwards under any circumstances. Apart from

this, instruction No.10 of the J&K State Eligibility Test,

2017, makes it clear that re-evaluation, reassessment or

rechecking of answer sheets is not permissible and that

evaluation once done is final and binding.

15) It is true that this Court, vide an exparte order MOHAMMAD ALTAF BHAT 2021.02.25 14:15 dated 20.08.2018 passed in OWP No.1530/2018, had I attest to the accuracy and integrity of this document

directed the respondent No.3 to look into the claim of the

petitioners and pass an order but then the claim of the

petitioner had to be looked into in the light of the

guidelines applicable to the test. Once that was done, the

respondents 2 to 4 came to the conclusion that, in view

of the guidelines, it would not be possible to re-open the

issue after publishing the merit list and, accordingly, the

impugned order came to be passed.

16) So far as the contention of the petitioners that even

the third answer key published by the respondents

contained glaring mistakes is concerned, the same

cannot be commented upon by this Court as it pertains

to the domain of experts. The Supreme Court in the case

of U.P. P.S.C & another v. Rahul Singh & another, AIR

2018 SC 2861, while holding that Courts cannot enter

into academic field and determine as to which of the

answer is better and more correct, observed as under:

"12. The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. In Kanpur University case (supra), the Court recommended a system MOHAMMAD ALTAF BHAT 2021.02.25 14:15 of - (1) moderation; (2) avoiding ambiguity I attest to the accuracy and integrity of this document

in the questions; (3) prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions.

13. As far as the present case is concerned even before publishing the first list of key answers the Commission had got the key answers moderated by two expert committees. Thereafter, objections were invited and a 26 member committee was constituted to verify the objections and after this exercise the Committee recommended that 5 questions be deleted and in 2 questions, key answers be changed. It can be presumed that these committees consisted of experts in various subjects for which the examinees were tested. Judges cannot take on the role of experts in academic matters. Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct.

14. In the present case we find that all the 3 questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts."

17) In view of the aforesaid ratio laid down by the

Supreme Court, it is clear that this Court cannot

determine as to whether or not the mistakes/

discrepancies pointed out by the petitioners in their writ

petition have any substance. As already noted, in the

instant case, objections to the answer keys were invited MOHAMMAD ALTAF BHAT 2021.02.25 14:15 I attest to the accuracy and integrity of this document

on two occasions where after these objections were

considered by domain experts and on their

recommendations, the final answer key came to be

issued. The respondents have, thus, done all that was

expected of an examining body and this Court cannot

determine the merits of the alleged mistakes pointed out

by the petitioners in the final answer key.

18) Even if it is assumed that there are mistakes in the

final answer key, still then, it would not be in the best

interests of the system of holding of competitive

examination for selection to a post, to keep the whole

process wide open ad infinitum by inviting objections to

the answer keys repeatedly. A finality has to be attached

to the process of selection at some stage and while doing

so, transparency and fairness of the process has to be

maintained.

19) This Court in the case of J&K Board of

Professional Entrance Examination & Ors. v. Qazi

Basra & Ors, 2014(I) S. L. J. 127, while emphasizing the

need to attach finality to the process of holding

competitive examination has observed as under:

"14. A question of fundamental importance which arises for consideration of the Court is as to MOHAMMAD ALTAF BHAT 2021.02.25 14:15 whether the BOPEE can be, in all I attest to the accuracy and integrity of this document

circumstances, asked to refer the issue 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 results 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 and for re- evaluation 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 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 judgment 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 - Appellant versus Pt. B. D. Sharma University of Health Sciences and others -

Respondents, reports in (2012) 7 SCC 389, 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.

15. 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 MOHAMMAD ALTAF BHAT conducted by the experts in respect of 2021.02.25 14:15 I attest to the accuracy and integrity of this document

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."

20) Having regard to the ratio laid down by this Court in

the aforesaid case, it is clear that it will not be in the

interests of student community to keep the selection

process open for years together by inviting objections

from the students to the answer keys repeatedly as

unsuccessful candidates are bound to feel dissatisfied

with the manner in which the answer key has been

prepared. In order to maintain sanctity of the process of

examination, a finality has to be given to it within a

reasonable period of time. Therefore, this Court feels

reluctant in passing any direction in favour of the

petitioners at this belated stage after a period of more