Citation : 2022 Latest Caselaw 16523 Mad
Judgement Date : 18 October, 2022
W.P(MD)No.21240 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.21240 of 2022
and
W.M.P(MD)No.15427 & 15428 of 2022
J.Daniel Vimal Davidson Gnanaiah
S/o.Dr.Joseph Raj,
Minor represented by mother and Natural Guardian
Dr.K.Latha,
No.1/593 (9) Goden Avenue Street,
P & T Nagar,
Madurai District. ...Petitioner
Vs
1.The Chairman,
Ministry of Health and Family Welfare,
Government of India,
New Delhi.
2.The Senior Director,
National Testing Agency,
NSIC-MDBP Building, Okhla Industrial Estate,
New Delhi-110 020.
3.The Principal Secretary,
Department of Health and Family Welfare,
Government of Tamil Nadu,
Fort St., George,
Chennai.
4.The Director of Medical Education,
Kilpauk,
Chennai. ..Respondents
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W.P(MD)No.21240 of 2022
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for
the records pertaining to the Test Booklet Code Q4, Question Nos.123 and
166 and the impugned claimed answer key list, in so far as answers to
Questions Nos.123 and 166 and declare the same as incorrect answers
and consequently direct the second respondent to provide 10 marks to the
petitioner's son J.Daniel Vimal Davidson Gnanaiah, ( 17 years) (4 marks
each for the correct answer and restoring one negative mark each for
each questions) who participated in the NEET National Eligibility-cum-
Entrance Test (UG) 2022, dated 17.07.2022.
For Petitioner :Mr.R.Murugan
For R1 :Mr.T.Mahendran
Central Government Standing Counsel
For R2 :Mr.P.Karthick
Standing Counsel
For R3 & R4 : Mr.N.Ramesh Arumugam
Government Advocate
ORDER
The petitioner Mrs.K.Latha is the mother of one Daniel Vimal
Davidson Gnanaiah. The petitioner's son, who is aged about 17 years
filed this writ of Certiorarified Mandamus calling for the records pertaining
to the Test Booklet Code Q4, Question Nos.123 and 166 and the
impugned claimed answer key list, insofar as answers to Questions
Nos.123 and 166 and declare the same as incorrect answers and
consequently direct the second respondent to provide 10 marks to the
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petitioner's son (4 marks each for the correct answer and restoring one
negative mark each for each questions), who participated in the NEET
National Eligibility-cum-Entrance Test (UG) 2022 dated 17.07.2022.
2. The petitioner's son participated in the NEET National Eligibility-
cum-Entrance Test (UG) 2022 conducted by the 2 nd respondent and claims
that he has written the examination very well and according to him, the
answers given by him for Question Nos.123 & 166 is correct, but the NTA
has rejected his claim and states the petitioner's son has chosen a wrong
answer. As per Biology Text Book for class XI & XII published by NCERT
gives a different answer, which has been relied on by the petitioner, but
that answer was rejected by the NTA and therefore, the petitioner has
challenged the said examination questions before this Court. The question
booklet No.Q4, Question Nos.123 & 166 are reproduced hereunder:-
“123.Read the following statements about the Vascular bundles
(a) In roots, Xylem and Phloem in a vascular bundle are arranged in an alternate manner along with different radii.
(b) Conjoint closed vascular bundles do not possess cambium
(c) In open vascular bundles cambium is present in between xylem and phloem.
(d) The vascular bundles of dicotyledonous stem possess endarch protoxylem
(e) In monocotyledonous root, usually there are more
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than six xylem bundles present.
Choose the correct answer from the options given below (1) (a), (b) and (d) only (2) (b), (c), (d) and (e) only (3) (a), (b), (c) and (d) only (4) (a), (c) , (d) and (e) only The correct answer is “all” as per Biology Text Book for class XI published by NCERT, the same is reproduced hereunder:
(a) When Xylem and Phloem within a vascular bundle are arranged in a alternate manner along with different radii. The arrangement is called Radii such as in roots. (Page No.90 Point No.6.2.3)
(b) In monocotyledons the vascular bundles have no cambium present in them. Hence they do not form secondary tissues and they are referred to as closed. (Page No.90 Point No.6.2.3)
(c) Cambium is present between xylem and phloem. (Page No.90 Point No.6.2.3)
(d) Each vascular bundle is conjoint, open and with endarch protoxylem. (Page No.93 Point No.6.3.3)
(e)There are usually more than 6 xylem bundles in monocot root (Page No.91) Point No.6.3.2 Hence the answer is all for the question No.123 whereas, the option is not there. Hence, the required marks should be provided.
166. “Given below are two statements
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Statement 1:
The release of sperms into the seminiferous tubules is called spermiation
Statement II:
Spermiogenesis is the process of formation of sperms from spermatagonia In the light of the above statements choose the most appropriate answer from the options given below: (1)Both Statement I and Statement II are Correct (2) Both Statement I and Statement II are Incorrect (3)Statement I is correct but Statement II is incorrect (4)Statement I is Incorrect but statement II is correct”.
4. I further submit that the petitioner's son has chosen the option 2.
“Both Statement I and Statement II are Incorrect” and the same is the most appropriate answer. Whereas, in the claimed answer key list Answer No.166 is stated as option 3 is the most appropriate answer. The answer of option 3 is incorrect as per the National Council of Educational Research and Training which has been published at the Publication Division by the Secretary, National Council of Educational Research and Training, Sri Aurobindo Marg, New Delhi and printed at Pankaj Printing Press, D.28, Industrial Area, Site A, Mathura (Uttar Pradesh), Page No.47. wherein spermiation is printed as under:
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“After Spermiogenesis sperm heads become embedded in the sertoli cells and are finally released from the seminiferous tubules by the process called spermiation.” As per the claimed answer key list for Test Booklet Code Q4 Question No.166 the answer is mentioned as option 3 is the most appropriate answer from the option, I.e., Statement 1 is correct.
3. The learned counsel for the petitioner further submits that the
Statement 1 refers to the release of sperms into the seminiferous tubules
is called spermiation whereas, the National Counsel of Educational
Research and Training Book, Biology Text Book for Class XII, Page No.47,
it has been mentioned, “ After Spermiogenesis sperm heads become
embedded in the sertoli cells and are finally released from the
seminiferous tubules by the process called spermiation.”
4. He would further submit that the option 3 given in the Test
Booklet Code Q4 insofar as question Nos.123 is concerned, the answer
must be all, however, the said option is not available in the claimed
answer key list, whereas, it is stated as “2” the said answer is not at all
correct. Insofar as question No.166 is concerned, the word appearing in
the claimed answer “into and the work from appearing in the Biology Text
Book for Class XII published by National Council of Educational Research
and Training are not only different but also convey the opposite meaning.
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Hence the answer chosen by the petitioner's son is the most appropriate
option and hence, he is entitled for 4 marks to this question. That apart
the negative mark deducted from the score of the petitioner's son is 1
mark and the net effect is 5 marks less to the petitioner's son but for the
wrong answer furnished in the claimed answer key list.
5. Due to the mistake committed by the second respondent, no fault
on the part of the petitioner's son, he is exposed to serious risk of
lowering by 5 marks in the ranking list, which will have a serious impact
and bearing in his career. The result of NEET National Eligibility cum
Entrance Test (UG) 2022, is going to be published on 07.09.2022. The 5
marks difference stated above is petitioner's entitlement and losing the
same on account of the mistake committed in the claimed answer key list
to question No.166 in the Test booklet Code Q4 will not only derail the
petitioner but also degrade in the ranking list.
6. He challenged the claimed answer key list in so far as Question
No.123 & 166 are concerned, on 01.09.2022 through online and there is
no response for the same from the second respondent. Hence, he
challenged the impugned claimed answer key list insofaras question
No.166 is concerned to the Test booklet code Q4 is liable to be quashed.
The option furnished as 3 in the claimed answer key list in so far as to
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question No.166 is not correct and hence, the same is liable to be set
aside.
7. The word appearing in the test booklet code Q4 question No.166
“into” and the word “from” appearing in the Biology Text Book for class
XII published by National Council for Educational Research and Training
are not only different but also convey a negative meaning to each other
and hence, the claimed answer key list for question No.166 option 3 is
totally wrong answer and the same does not have any legs to stand
before the Court of law. The incorrect option 3 furnished in the claimed
answer key list for question No.166 is not consonance with the answer
available in the book, followed throughout the nation and hence, the same
is liable to be set aside on that score alone. In support of his contention,
the petitioner has produced the test booklet 'Q4'.
8. The learned counsel for the second respondent has filed the
counter affidavit, wherein, the Director at National Testing Agency has
sworn the affidavit. He would submit that the present writ petition is
entirely misconceived as no fundamental or legal rights of the petitioner
has been violated by NTA and the same deserves to be dismissed at the
outset.
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9. It is a settled law that it is for the experts/academic bodies and
not for the Courts to go into the correctness of the answers contained in
the answer key; when there are conflicting views, then the Court ought to
bow down to the option of the experts; Courts ought not to take on the
role of experts in academic matter and it must exercise great restraint
and should be reluctant to entertain a plea challenging the correctness of
the key answers.
10.He would further submit that the National Testing Agency (NTA)
has been established by the Ministry of Human Resource Development
(MHRD), which is now known as the Ministry of Education, Government of
India (GOI), as an independent, autonomous and self-sustained premier
testing organization under Society Registration Act, 1860 for conducting
efficient, transparent and international standards tests in order to assess
the competency of candidates for admissions to premier Higher Education
Institutions.
11. As per Section 14 of the National Medical Commission Act, 2019,
the National Eligibility-cum-Entrance Test (NEET (UG)] has to be
conducted as a common and uniform examination for admission to
undergraduate medical education in all medical institutions. Similarly, as
per Section 14 of the National Commission for Indian System of Medicine
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Act, 2020, there shall be a uniform NEET (UG) for admission to
undergraduate courses in each of the disciplines I.e., BAMS, BUMS, and
BSMS courses of the Indian System of Medicine in all Medical Institutions
governed under this Act. NEET (UG) shall also be applicable to admission
of BHMS course under National Commission for Homeopathy.
12. National Testing Agency conducted the National Eligibility-cum-
Entrance Test (UG) for 1872343 candidates at 3570 different Centres
located in 497 Cities throughout the country including 14 Cities outside
India on 17 July 2022 (Sunday) from 02:00 P.M., to 05:20 P.M.(IST).
13. He would further submit that the Candidate applied for NEET
(UG) 2022 and appeared for the examination on 17.07.2022 with
Application Number:220410446318 and Roll Number:4108050393 from
the Exam Centre No.410805 (The Navodaya Academy Senior Secondary
School, Kapur Mian Road, Keerambur, Namakkal, Tamil Nadu-637 207. To
make the examination system transparent, NTA has evolved the scheme
of displaying the Question Paper and Recorded Responses for the
examinees for verification. Further, an opportunity is provided to the
candidates to challenge, if any, the answer keys to the Questions.
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14. As per the scheme for the NEET (UG) 2022, the subject experts
appointed by NTA have duly considered the objections/challenges to the
answer keys issued for the said exam including those preferred by the
petitioner in the present writ petition. The final answer keys for the said
examinations have been prepared after duly examining the challenges and
that the petitioner has no vested right to review/challenge the decision of
the subject experts of the NTA. In this regard, clauses 14.2 of the
Information Bulletin issued for NEET (UG) 2022 may be noted, which
reads as follows:-
“14.2 Display of Answer Key for the challenge 14.2.1 The NTA will display the Provisional Answer Key of the questions, giving an opportunity to the candidates to challenge, in case of any doubt in the answer key published on the website https://neet.nta.nic.in/. For the exact date of display of the Answer Key, candidates may regularly check updates on the NTA website after the examination.
14.2.2 Candidates will be given an opportunity to make an online challenge against the provisional Answer Key by paying a non-refundable processing fee of Rs.200/- per answer challenged, within a specified period as indicated in the Public Notice.
14.2.3. Challenges made by the candidates will be verified by the NTA with the help of a panel of subject experts. If
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found correct, the answer key will be revised accordingly. based on the revised Final Answer Kay, the result will be prepared and declared.
14.2.4 No individual candidate will be informed about the acceptance/non-acceptance of his/her challenge. 14.2.5 The key finalized after the challenges will be treated as final”.
14.4. Re-checking/re-evaluation of answer sheets There is no provision for re-checking/re-evaluation of the answer sheets.
The candidates are given an opportunity to make the representation on the OMR graduation of their OMR sheets are also given an opportunity to challenge the answer key in case of any doubt.
No correspondence in this regard will be entertained.”
According to them, as per 14.2.5 the key finalized after the challenges will
be treated as final.
14.4 Re-checking/re-evaluation of answer sheets,
There is no provision for re-checking/re-evaluation of the
answer sheets. The candidates are given an opportunity to
make the representation on the OMR graduation of their OMR
sheets are also given an opportunity to challenge the answer
key in case of any doubt. No correspondence in this regard will
be entertained.”
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15. In support of his contention, the learned counsel for the
respondent submitted the judgment of the Hon'ble Supreme Court of
India in Maharashtra State Board of Secondary and Higher
Secondary Education and another vs. Paritosh Bhupesh
Kurmarsheth reported in AIR 1984 SC 1543 and in CBSE vs. Aditya
Bandopadhyay reported in 2011 (8) SCC 497. In the above said
judgment the Hon'ble Apex Court held that in the absence of a provision
for re-evaluation, a direction to this effect cannot be issued by the Court.
16. Under the scheme evolved by NTA, on display of the answer Key
and OMR Sheet, an opportunity to the candidates to Challenge the Answer
Keys to the Questions (if any) is provided for. The Challenges/objections
received are then again placed before the respective subject experts. The
objections so received are considered and examined exhaustively by the
subject experts of NTA. If the subjects experts on examining the
objections finds merit in it, then on the advice of the subject experts NTA
modifies its answer key accordingly and gives appropriate benefit to the
candidates. However, if the subject experts are of the view that the
answer contained in the answer key is a correct answer, no modification in
the answer key is carried out.
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17. The final answer keys are decided by the Experts, after the
Challenges received from the candidates are settled by the respective
Subject Experts. The result is declared on the basis of the final/revised
answer key recommended by the respective Subject Experts only. Thus,
the NTA relies on the decision of the Subject Expert(s), based on which
the final result is declared.
18. According to them, NTA displayed the provisional Answer Keys,
OMR Answer Sheets and Recorded Responses to the Candidates during
the period 31.08.2022 to 02.09.2022. Public Notice to the same effect
were issued for information of the Candidates on the Portal
(neet.nta.nic.in). During the window period of filing objections to the
provisional answer keys issued by NTA for the said examination, the
petitioner/Candidate filed objections to Q.No.123 and Q.No.166 of Q4. All
the objections including the one preferred by the petitioner were placed
before the subject experts. With regard to the questions in issue, it is
submitted that 352 number of challenges were received against Q.No.123
and 179 challenges against Q.No.166 in Q4 series. Upon examining the
objection to Q.No.123 and Q.No.166 of Q4, the subject expert(s) did not
find any merit in the challenges preferred by the candidates and
accordingly rejected challenges and retained the Provisional Answer Key
to the said question as Final Answer Keys. Accordingly, on the basis of the
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opinion of the expert(s), the answer key(s) was finalized, and the result
was declared accordingly on 07.09.2022.
19. The questions are being reproduced hereunder:
Q 123 Read the following statements about the vascular bundles:
(a) In roots, xylem and phloem in a vascular bundle are arranged in
an alternate manner along with the different radii.
(b) Conjoint closed vascular bundles do not possess cambium
(c) In open vascular bundles, cambium is present in between xylem
and phloem
(d) The vascular bundles of dicotyledonous stem possess endarch
protoxylem
(e) In monocotyledonous root, usually there are more than six
xylem bundles present
Choose the correct answer from the options given below:
1. (a), (b) and (d) only
2.(b), (c) , (d) and (e) only
3.(a), (b), (c) and (d) only
4.(a), (c) , (d) and (e) only
20. The format of the Multiple Choice questions paper Exam as in
the present case is such that, four options will be provided to a question
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W.P(MD)No.21240 of 2022
and only one is considered to be the most appropriate/correct answer.
The purpose of posing question with multiple options is to test the
knowledge, clarity, intelligence and capability of the candidate to think out
of the box and complete the exam within a particular frame of time.
21. The respondents referred various judgments of the Hon'ble
Supreme Court of India in H.P.Public Service Commission vs. Mukesh
Thakur (2010) 6 SCC 759, wherein it was inter-alia, held that it was not
permissible for the High Court to examine the question paper and the
answer sheet itself particularly when the examining body has assessed the
inter se merit of the candidates. If there was a discrepancy in framing the
question or evaluation of the answer, it was for all the candidates
appearing in the examination and not for the Respondent/candidate alone.
Hence, the Hon'ble Supreme Court in the said matter had set aside the
directions of the High Court directing re-evaluation of the answer sheet by
another examiner.
22. This Court in the matter of Atul Kumar Verma vs UOI &
Others 221 (2015) Delhi Law Times 669, while dealing with the issue
of challenging the answer key on the basis of evaluation published by
coaching centres and subject experts other than the CBSE experts, has
held that unless the Courts, though accustomed to resolve/adjudicate on
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W.P(MD)No.21240 of 2022
disputes, curb their temptation to interfere with the question paper and
answer key inspite of counter view, of other subject experts, being
brought before them and there being thus a dispute as to which view is
correct, the Universities and the examining bodies on whom the said
function has been entrusted, would lose their sheen and the respect in
which they are held.
23. The Court further held that once the examining bodies have
followed the procedure of inviting objections to the answer key and if
satisfied therewith, corrected the answer key and thereafter declared the
result, then there can be no scope for judicial review of the said answer
key unless allegations of bias, malafide, non-consideration of relevant
factors etc., are made out for invoking the power under the Judicial
review.
24. The Hon'ble Supreme Court in Ranvijay Singh v. State of U.P
(A.I.R.2018 SC 52) summarized the law on the subject and held that,
“the Court should not at all re-evaluate or scrutinize the answer key. It
has no expertise and academic matters are best left to academicians.
Court should presume the correctness of the Answer Key and proceed on
that assumption. In the event of doubt, the benefit of doubt should go to
the examination authority, rather than the candidate.”
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25. The learned counsel appearing for the respondents would submit
that based on the above submissions and judgments referred, the
petitioner's case is not acceptable.
26. Heard the learned counsel appearing for the petitioner and the
learned Government Pleaders appearing for the respondents and perused
the entire materials available on record.
27. It is seen from the petitioner's prayer that his son has answered
the questions on the options given, according to him, it was correct
answer. But the authorities, namely, NTA has stated that the challenges
made by the candidates will be verified by the NTA with the help of a
panel of subject experts. If found correct, the answer key will be revised
accordingly. Based on the revised Final Answer Key, the result will be
prepared and declared. The key finalised after the challenges will be
treated as final as per the Bulletin. It is made clear that the petitioner
cannot seek for re-checking/re-evaluation of answer sheets and also it
has been clearly stated that the expert opinion is the final and there
cannot be any further re-evaluation or re-checking.
28. Bulletin 14.4 shows that the machine-gradable Answer Sheets
are evaluated with extreme care and are repeatedly scrutinized. There is
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no provision for re-checking/re-evaluation of the answer sheets. This is
because of the following reasons: The OMRs are machine gradable and
are being evaluated through specific software impartial to all.
29. The candidates are given an opportunity to make the
representation on the OMR gradation of their OMR sheets and also given
an opportunity to challenge the answer key in case of any doubt. No
correspondence in this regard will be entertained.
30. As per Bulletin 14.2 Display of Answer Key for the challenge is
as follows:
14.2.1.The NTA will display the Provisional Answer Key of the
questions, giving an opportunity to the candidates to challenge, in
case of any doubt in the answer key published on the website
https://neet.nta.nic.in/. For the exact date of display of the Answer
Key, candidates may regularly check updates on the NTA website
after the examination.
14.2.2 shows that Candidates will be given an opportunity to make
an online challenge against the provisional Answer Key by paying a
non-refundable processing fee of Rs.200/- per answer challenged,
within a specified period as indicated in the Public Notice.
14.2.3-Challenges made by the candidates will be verified by the
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NTA with the help of a panel of subject experts. If found correct,
the answer key will be revised accordingly. Based on the revised
Final Answer Key, the result will be prepared and declared.
14.2.4.No individual candidate will be informed about the
acceptance/non-acceptance of his/her challenge.
14.2.5 of the bulletin states that the key finalised by the expert will
be treated as a finalised key answer.
31. As per the respondent Bulletin, NTA submits that the said expert
opinion, who has finalised the key answer, after the challenge, will be
treated as final answer and there can be no rechecking or re-evaluating
the same by any person.
32. The Hon'ble Supreme Court in the matter of U.P.P.S.C.,
through its Chairman and another vs. Rahul Singh and another
(2018) 7 SCC 254 have made the following observation:-
“...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.”
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33. In Ran Vijay Singh & Ors. v. State of Uttar Pradesh and
ors. (2018) 2 SCC 357, held that
The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are (I) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may be permit it;
(ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed;
(iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matter and academic matters are best left to academics;
(iv) The court should presume the correctness of the key answers and proceed on that assumption; and
(v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
The apex Court further held that the Court should not re-evaluate or
scrutinize the answer sheets of a candidate as it has no expertise in the
matters and the academic matters are best left to academics.
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34. In Vikesh Kumar Gupta and Ors.vs. The State of
Rajasthan and Ors. (07.12.2020-SC): MANU/SC/0923/2020 has
also held the same footing. The Court cannot interfere with the expert
opinion in academic matters. In any event, assessment of the questions
by the Courts itself to arrive at correct answers is not permissible....”
35. The Hon'ble Division Bench of Madras High Court in the matter
of B.Florance Mary and another vs. The Chairman, TRB in W.A.Nos.
1097 and 1099 of 2014 has held that
“....6. It is a settled law that while exercising the discretionary and extraordinary power under Article 226 of the Constitution of India, this Court cannot act like an expert body, by replacing the assessment made by experts.”
36. In above, the catena of judgments shows that the Court cannot
act as an expert and the Court should not overstep their jurisdiction to
upset the opinion of the experts. Accordingly, this Court finds that the
challenges made by the petitioner was verified by the NTA with the help of
a panel of subject experts and came to the conclusion that the answer
given by the experts are correct and the request of the petitioner cannot
be considered.
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37. Considering the above, this Court is of the view that the
petitioner claimed that his answers to question Nos.123 and 166 to be
held as correct and valid by allotting marks to those questions which has
been answered as per NCRT book, in NEET exam is negatived. The expert
opinion by NTA cannot be revisited by this Court and as per the Bulletin
issued, their decision is final and Courts cannot interfere with the marks
awarded to the petitioner. Hence, this Court is not inclined to interfere
with the said decision. Accordingly, this writ petition is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
18.10.2022
Index : Yes/No Internet:Yes/No am
To
1.The Chairman, Ministry of Health and Family Welfare, Government of India, New Delhi.
2.The Senior Director, National Testing Agency, NSIC-MDBP Building, Okhla Industrial Estate, New Delhi-110 020.
3.The Principal Secretary, Department of Health and Family Welfare, Government of Tamil Nadu, Fort St., George, Chennai.
4.The Director of Medical Education, Kilpauk, Chennai.
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W.P(MD)No.21240 of 2022
V.BHAVANI SUBBAROYAN,J.
am
W.P(MD)No.21240 of 2022
18.10.2022
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