J&K Board of Professional Entrance Examination and Others vs Qazi Basra and Others

Muzaffar Hussain Attar, J.—Common Entrance Test (for short CET), conducted by J&K Board of Professional Entrance Examination (for

short BOPEE), almost every year, in its wake, brings wave of litigation to the Court. Different type of grievances are projected by the candidates.

However, one of the most common feature of grievances, every year, is providing of wrong answer keys to the multiple choice questions. The

BOPEE conducted two day CET on 22-23rd of June, 2013 in pursuance of its Notification No. 10-BOPE of 2013 dated 10-06-2013 for

selecting the meritorious candidates for undergoing MBBS/BDS courses in various colleges of the State of J&K. This CET, however, was

cancelled by the BOPEE, who issued a public notice dated 03-07-2013 and informed all the candidates that fresh CET will be conducted on 27-

28th July, 2013. The candidates were also informed that they shall have to take the CET in all the four papers. The BOPEE, after conducting the

CET on 27th and 28th of July, 2013, issued notification whereunder all the candidates, who had taken the CET of 2013, were informed that the

answer keys in respect of question papers of Physics, Chemistry, Biology and Mathematics are available on its official Web Site. The candidates

were also informed that in case of any discrepancy in any question or answer key, they can make a representation to the BOPEE at its offices at

Srinagar/Jammu. The representation was to be made within two days, viz. upto 30-07-2013 upto 04.00 PM. The candidates were also informed

that in support of their representations, they should also enclose copies of relevant references from standard text books.

The respondent--writ petitioner, sought consideration for being selected to undergo MBBS/BDS course under Roll No. 629049. On the

pleadings of the parties, it is admitted that the respondent--writ petitioner appeared in all the three papers of Physics, Chemistry and Biology.

The case set up by the respondent--writ petitioner in the writ petition is that on examination of the answer keys of the BOPEE, to her mind, at

least 11 answer keys were wrong. It is her further case that she filed representation for re-evaluation of her answer scripts indicating therein the

prescribed wrong answer keys by the experts of BOPEE. Further case of the respondent-writ petitioner is that when her representation did not

evoke any response, she filed yet another representation. Copy of the second representation, which does not bear any date, has been annexed

with the writ petition as annexure (E), to which reference is made in paragraph (8) of the writ petition. Further grievance of the respondent--writ

petitioner in the writ petition is that without according consideration to her representations, Notification dated 05-08-2013 was issued by BOPEE,

which contained the names of candidates, who were short listed for counseling. The respondent--writ petitioner had secured 168 marks and her

ECB rank was 00411. In view of her merit position, she was not called for counseling, which constrained her to approach the Court by filing

OWP 1266/2013. The respondent-writ petitioner prayed for issuance of writ of mandamus or any other appropriate order or direction directing

the respondents-Appellants herein to get the answers given by the respondent-writ petitioner to question Nos. 16, 28, 31, 41, 44, 60 and 70 of

Biology, Series-C and question Nos. 32 and 64 of Chemistry, Series-C, re-evaluated in the light of her representations and thereafter upgrade her

merit position and admit her to MBBS course in Government Medical College, Srinagar.

In the objections filed by the Appellants to the writ petition, it is pleaded that after completion of CET, 2013 on 28-07-2013, answer keys of

each question paper were displayed on the official Web Site of the BOPEE in the same evening. The candidates were given two days' time for

filing representations, if any, in respect of the displayed answer keys. A specific stand is taken by the Appellants in the objections that after

receiving representations from the aggrieved candidates, same were referred to two experts in addition to the paper setter for their opinion. The

answer keys, in respect of few questions, were revised and answer scripts of all the candidates including those who had not filed the

representations were evaluated and benefit of revised answer keys was given to all the candidates, who had taken the CET 2013. It is specifically

pleaded by the Appellants in their objections that the respondent-writ petitioner did not file representation within the stipulated period of two days

but despite that she was given the benefit of revised answer keys. It is further pleading of the Appellants both in the objections and in the memo of

Appeal that the respondent-writ petitioner, notwithstanding the fact that she did not file representation within the prescribed period, was also given

benefit of revised answer key in respect of question Nos. 31, 44 and 70 in Biology and question No. 32 in Chemistry. It is further specific pleading

of the Appellants that answers to question Nos. 16, 28, 41 and 60 were found to be incorrect but benefit of 03 questions in biology and 01

question in Chemistry were given to her. It is further stated that in the second round of counseling, the respondent-writ petitioner has been allotted

BDS seat in IDS as per her merit and rank.

The writ Court, vide its order dated 29-11-2013, which is called in question in this LPA, directed the Appellants to disclose the revised answer

keys in Series-C of Biology and Chemistry papers of CET, 2013 to respondent-writ petitioner by 01/12/2013, thereby giving her elbow room for

seeking re-checking of the questions and answers. It is further directed by the learned writ Court that by 03/12/2013, the respondent--writ

petitioner shall file representation indicating therein the questions and answers, she would like to get re-evaluated. The BOPEE is directed that by

05/12/2013, it shall send the representation of the respondent-writ petitioner as also the questions papers and answer scripts of Series-C of

Biology and Chemistry papers to the Heads of Departments (HOD) of Biology and Chemistry, University of Kashmir in sealed covers. The HODs

of Biology and Chemistry, University of Kashmir, have been directed to appoint Expert Body of minimum three members each bearing good

reputation and possessing good knowledge and the Committee may be headed by the HODs themselves. The experts have been directed to re-

evaluate the answer scripts of the respondent-writ petitioner. They have been further directed to examine as to whether any of the questions in the

aforesaid two papers were defective or erroneous. The HODs have been directed to prepare and submit the respective reports before the

Registrar Judicial in sealed cover by or before 01.00 PM on 12-12-2013.

The Appellants are aggrieved of the aforesaid directions and seek annulment of the order of the writ Court on the ground that though the

respondent-writ petitioner did not file representation within the stipulated period but the Appellants gave her credit of 04 marks for having given

correct answers to question Nos. 31, 44 and 70 of Biology, Series-C and was also given credit of 01 mark in respect of question No. 32 of

Chemistry, Series-C and thus, it cannot be said that the respondent-writ petitioner has any grievance in respect of the evaluation of the answer

scripts and selection of the candidates for undergoing various professional courses.

Mr. G.A. Lone, learned counsel for the Appellants submitted that the claim of the respondent-writ petitioner, as projected in the writ petition, is

not justified, inter alia, on the grounds that:

a) she had not filed representation within two days' specified time;

b) despite her not filing the representation, she was given credit of marks in Biology, Series-C and Chemistry, Series-C;

c) the team of experts, having considered the issue, there is no scope for re-evaluating the questions which are referred to in the writ petition or

may be projected in representations;

d) the scheme for making selection and admissions in various professional courses, being regulated by the Medical Council of India (MCI), Rules

and Regulations and also the judgement of the Hon'ble Supreme Court, there is no further scope of getting the questions, projected in the writ

petition, re-evaluated. In support of his contentions, learned counsel referred to series of judgements of the Hon'ble Supreme Court on the

subject.

Learned counsel prayed for allowing the Appeal and setting aside the impugned order.

Mr. M.A. Qayoom, learned counsel for the respondent submitted that in a competitive examination, merit of the competing candidates can be

properly adjudged when the answer keys to the questions are correct. He further submitted that on their own admission, the Appellants have

shown that the answer keys to some questions were wrong. Learned counsel submitted that the questions, to which reference is made in the writ

petition, were provided wrong answer keys by the paper setters and in order to meet out justice to the respondent--writ petitioner, it was the duty

of the BOPEE to refer all the questions along with answer keys to the experts and thereafter allocate further marks to the respondent--writ

petitioner. Learned counsel further submitted that the answer keys, in respect of the questions projected in the writ petition, are palpably wrong in

view of the references given in the relevant text books. He submitted that in the facts of the case, it was the duty of the writ Court to get the issue,

raised in the writ petition, settled. Learned counsel, while relying upon the judgements of the Hon'ble Supreme Court, submitted that no fault can

be found with the directions issued by the learned writ Court. Learned counsel, in support of his contention, referred to and relied upon the

judgement of the apex Court reported in Kanpur University and Others Vs. Samir Gupta and Others, , Indian Council and Enviro-Legal Action

Vs. Union of India and others, , Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, and Rajesh Kumar and Others etc. Vs.

State of Bihar and Others etc., and submitted that the Appeal be dismissed.

The BOPEE is charged with the most sacred duty of selecting the meritorious candidates to undergo trainings in various professional colleges

of the State of J&K. In order to accomplish this solemn purpose, it is the fundamental duty of the authorities of BOPEE to ensure that persons of

highest integrity and unmatched competence are assigned the task of setting of papers. The competing students, not only burn midnight oil but also

keep on toiling day and night to secure berth in a professional college. Availability of oceans of information at their finger tips and hard work of

these competing students has catapulted them to a position, where from they can raise finger to any wrong answer key set up by the paper setter.

The wrong answer key is definitely bound to adversely affect the merit of a competing candidate. Utmost care and caution has to be taken by the

BOPEE in selecting a paper setter and consequently by the paper setter himself in formulating the questions and providing their answer keys.

Earnest efforts, when made by the BOPEE in this behalf, will certainly ensure that nominal mistakes would be committed which can be corrected in

the first round of re- evaluation of the answer scripts, if any, to be conducted. Prescribing of ambiguous and doubtful questions and providing of

wrong answer keys, will surely confuse a competing student and will, ultimately, affect his/her merit position. The BOPEE has to understand its

responsibility and leave no scope for anyone to raise finger towards it.

Reverting to the facts of this case, it appears that after completion of the CET, 2013 on 28-07-2013, same evening the BOPEE displayed the

answer keys on its official Web Site. The aggrieved candidates were asked to file representations within two days' time. The candidates, who filed

representations, referred to many questions, which included the questions, in respect of which, the respondent-writ petitioner had said that the

answer keys to the same were wrong. The said representations were referred to the team of two experts as also to the paper setter. After the re-

evaluation process, the respondent-writ petitioner has been given credit of marks in Biology, Series-C and Chemistry, Series-C, which additional

marks enabled her to ultimately get the seat in BDS course.

In the facts of this case, there is total denial of the Appellants about the receipt of representation of the respondent-writ petitioner within the

prescribed time of two days. The representation, annexure (E) to the writ petition, does not bear any date. Even in the writ petition, the

respondent-writ petitioner has not disclosed the date of filing of representation. Her pleading, at paragraph 08 of the writ petition, is vague. It is,

thus, concluded that she had not filed the representation within the prescribed time of two days. Notwithstanding this fact, the BOPEE, on the basis

of representations of some candidates, received by it within time, in which the questions projected by the respondent-writ petitioner in her writ

petition, were also mentioned, were send to the team of experts and paper setter and the benefit of result of such process was extended to the

respondent-writ petitioner as well. In the fact situation of this case, the respondent-writ petitioner could not project any grievance by filing the writ

petition when she had failed to avail of the opportunity given to her and despite her inaction, she became the beneficiary of the process of re-

evaluation undertaken by the Appellant--BOPEE.

A question of fundamental importance which arises for consideration of the Court is as to whether the BOPEE can be, in all circumstances,

asked to refer the issues 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

for re- evaluation of questions and answer keys at regular intervals, then selection process will never come to a logical end. In such circumstance,

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 judgements 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 Vs. Pt. B.D. Sharma University of Health Sciences and

Others, 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.

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 conducted by the experts in respect of 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;

The respondent-writ petitioner has been provided opportunity to project as many questions as she wishes by filing representation. Such

course, if permitted to be adopted, will not stand on the touchstone of Article 14 of the Constitution, as other similarly circumstanced candidates

are denied similar opportunity. Adopting of such a course will result in affecting the academic discipline and will keep the selection process open to

regular interjections, which course cannot be countenanced in law.

The clouds of uncertainty cannot be allowed to hover on such an important selection process. The impugned order suffers from yet another

serious infirmity because the Secrecy which is required to be maintained in making admissions in such type of professional courses, will be

jeopardized as the experts, sought to be appointed, can be easily identified. Maintaining secrecy is the hallmark of conducting such type of

competitive tests.

In the facts and circumstances of this case and for our above recorded reasons, the directions issued by the learned writ Court, which are

impugned in this Letters Patent Appeal (LPA), are held to be unwarranted and illegal. The Appeal is, accordingly, allowed and the impugned order

dated 29-11-2013 is set aside. Consequently, OWP 1266/2013 also stands dismissed along with connected CMPs.

Before parting with, we would like to place on record our serious concern about the method and manner in which, for some of the questions,

after re-evaluation of the questions and answer keys by the Expert Committee, two correct answers have been provided and marks to all the

candidates have been given in respect of few other questions. The BOPEE shall have to advert its attention to our concern. In order to workout

appropriate methodology in future, it is deemed appropriate to direct the Chief Secretary of the State as also the Chairman, BOPEE, to constitute

a Committee of Experts in the field, who would advice the BOPEE as to how and in which manner the Common Entrance Test shall be conducted

and further whether it would be permissible to have two correct answer keys for one single question and mark(s) in question(s) can be given to all

candidates.

LPA is, accordingly, disposed of along with connected CMPs. Registry to return the two sealed envelops to Mr. G.A. Lone, learned counsel

for the Appellants. Copy of this order, one each, be served on Chief Secretary of the State and Chairman, BOPEE, for compliance.