-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 1671 OF 2008 Manjeri Vijaysinh Patil ) aged 19 years, presently residing at Flat No.4, ) Second Floor, Jaldip Complex, 810 Sadashivpeth ) Pune-411 030 ).... Petitioner versus 1. State of Maharashtra ) through its Department of Medical Education and ) Drugs, Madam Cama Road, Mantralay, Mumbai. ) 2. Director of Medical Education and Research, ) its office at St.Georges Hospital Compound, ) G.P.O., Mumbai-400 001 )..Respondents Ms. P.V. Thorat with Mr. V.M. Thorat for the petitioner. Mr. M.D. Naik, AGP, for the State. CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: AUGUST 21, 2008. ORAL JUDGMENT (Per P.B. Majmudar, J.): Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the respondents. With the consent of the learned Advocates, rule is made returnable forthwith. 2. By filing this petition, the petitioner, who is a student, has raised an important issue for consideration of this Court as to whether at the time of taking Common Entrance Test (“CET” for short) examination, any deviation -2- can be made by the respondents in the matter of giving marks contrary to Rules and instructions given in this behalf. 3. The petitioner has cleared her HSC Examination from the Maharashtra State and Higher Secondary Education Board, Pune and secured 62% marks in the subjects of Physics, Chemistry and Biology. The State of Maharashtra, for the purpose of admission for medical and dental courses framed rules and introduced CET. As per the said Rules, the duration of the examination is three hours. The method of answering the questions is also prescribed in the Rules. As per the information brochure, condition 3.3 provides as under: “The candidate will be required to mark the correct answer by blackening the corresponding circle against the serial number of the question in the answer sheet with black ink ballpoint pen only. Out of four circles provided for selection of an answer against a question, the candidate should fill up one circle only. Each correct answer will be given mark/(s)., There shall be no negative marking for wrong answers. CHANGING AN ANSWER IS NOT ALLOWED: The candidates must fully satisfy themselves about the accuracy of the answer before darkening the appropriate circle, as no change in the answer once marked is allowed. The answer once marked is final, any change in the option once marked, done by any method, will amount to a invalid/incorrect response. Scratching, overwriting, tick mark and multiple answers will be considered as wrong answers and no marks will be allotted to them. 4. The petitioner appeared for the said CET examination but since -3- she had not secured adequate percentage of marks, she was not considered for admission in the course. The petitioner, after declaration of results, applied for verification of marks. Prior to the declaration of results, the petitioner filed a writ petition being Writ Petition (Lodging) No. 1448 of 2007 in which a grievance was in connection with the late distribution of question papers in her centre by ten minutes. The Division Bench held that since the documents have been received subsequent to the final hearing of the matter and when the matter was reserved for judgment, this by itself would constitute a separate cause of action. The Division Bench however gave liberty to the petitioner to file a separate petition and that is how this petition has been filed. 5. On going through the answer sheet, the petitioner has realised that she was given marks in connection with those answers which have been given by putting even tick marks. The petitioner had darkened the circle while answering some questions and put some ticks in connection with the answer to some questions. 6. Challenge in this petition is to the procedure adopted by the respondents in the matter of analysis of the answer sheets of the students . It is the case of the petitioner that assuming other students who have put only tick marks have been assigned the marks, such marks are required to be ignored as per condition No. 3.3 of the brochure, to which reference is -4- made earlier in this order. 7. Ms. Thorat, learned counsel appearing for the petitioner, has submitted that considering the facts and circumstances of the case, the respondents should be directed to re-screen and/or evaluate the mark sheets of all the students strictly in accordance with the Rules. It is submitted that if the software or computer programme is taking tick mark as a correct answer, the same software/computer programme is required to be replaced in consonance with the Rules framed in this behalf. 8. In response to the said arguments of the learned counsel for the petitioner, Mr. Naik, learned Assistant Government Pleader, has submitted that so far as the present petition is concerned, the petitioner has also been given benefit of marks even though she had put tick mark in connection with the answers to some questions and accordingly she is not entitled to make any grievance in this behalf. The learned Government Pleader further submitted that it is true that as per condition 3.3 of the brochure, answers given by way of tick marks are not to be taken into consideration. However, the respondents have taken opinion of some experts on this aspect and in order to see that even in a given case if a student has given correct answers by putting tick marks, such students may not have to suffer. Ultimately, on the basis of the opinion received, a decision was taken that such tick marks also may be taken into account so that a student who has given correct -5- answer by putting tick mark may not have to suffer. The learned Government Pleader has also submitted that a decision was taken that if a tick mark is put in the centre of the circle and if the intensity should be good enough which can be read by scanner and in that case in order to see that genuine students who have given correct answers by putting tick marks may not suffer, a particular procedure was adopted. The learned Government Pleader also further submitted that there are cases where in a hurry the student instead of darkening the circle may put tick mark but his answer may be correct. He, therefore, submitted that with a view to see that a genuine student who has given correct answer may not suffer that ultimately this procedure is adopted after receiving the advice of the experts on the subject. 9. We have heard the learned counsel appearing for both the sides at length. In our view, the stand taken by the State Government is highly unjustified. It is required to be noted that in a society governed by rule of law, a citizen is expected to know as to what is the correct procedure and principle by which he is likely to be guided. Any circular/notification or Rule of the State Government should be precise so that one who is likely to be affected by such circular/notification/rule is supposed to know in advance as to what is the circular/notification/rule so that he may not be misguided in this behalf. Stability of such decision and circular should always be there so that a person who is in charge of the administration may not change as per -6- his sweet will and whims later on. Any deviation made in this behalf against such circular/notification/rule should be made available in advance to others who are likely to be affected by such change. It is no doubt true that it is always open for the respondents to deviate from the Rule prescribed in the brochure but such deviation should be made known to all concerned so that they may not be taken by surprise at a later stage. In the instant case, there is a clear cut provision in the brochure in condition No.3.3 which says that answer should be given by way of blackening the corresponding circle and no answer will be given by tick mark. We are surprised as to how any such deviation could have been made without there being any corresponding amendment in such brochure. 10. During the course of hearing, learned Government Pleader has fairly submitted that there is nothing in such instructions that such requirements can be relaxed at the time of scrutinising the answer sheet of a student. At this stage, the argument of the learned counsel is required to be taken into consideration. He vehemently argued that in order to see that the student who might have given correct answer which may not be in consonance with condition No.3.3 of the brochure and in order to see that such student may not have to suffer even though the student has given correct answers that with the noble object this deviation has been made. We fail to understand any logic behind such argument. In a case where a student who is likely to give answer strictly as per the procedure prescribed -7- and as per the Rules and instructions by darkening the circle, such student will be at a discount because it may consume more time than merely putting the tick mark. A genuine student who is following the rules may be at a discount as against one who is flouting the rule and such student will be in a advantageous position as compared to one who is following the Rules. In fact, when condition 3.3 provides for answering the question only by darkening the circle, it is surprising as to why the decision was taken by the respondents to consider the answer even if tick mark is finding place, even though condition 3.3 speaks otherwise. In our view, therefore, it was not open for the respondents to deviate from the instructions given in the brochure as well as instructions given at the time of appearing in the examination. The assessment made regarding giving marks on tick mark would be contrary to the said prescribed procedure. It may be true, as pointed out earlier, that if the respondents ultimately thinks that a genuine student may not suffer may deviate from the said Rules prescribed in the brochure, however, such deviation should be made known in advance to all students so that no student is likely to be misguided as such departure is always kept in secret by the authorities and the concerned students may not be knowing as to what is the departure in this behalf. In a given case it will result into hide and seek game. The procedure adopted by the respondents, in our view, was not proper. Under these circumstances, we are of the opinion that the procedure adopted by the respondents in assessing the answer sheet of a particular student by giving marks on the -8- basis of tick marks is contrary to the instructions given and, therefore, is arbitrary and in that view of the matter, such decision is in clear violation of Article 14 of the Constitution of India. In this connection, a reference is required to be made to the decision of the Supreme Court in the case of Ramana Dayaram Shetty vs. The International Airport Authority of India and others, AIR 1979 SC 1628. So far as the said case is concerned, a deviation was made by the authority from the advertisement given at the time of inviting tenders and experience part was relaxed at the time of finalising the tender. A writ petition was filed by an aggrieved person on the ground that if he was aware that such relaxation will be made, he would have applied on the basis of such tender. While considering this aspect, the Supreme Court has held as under in paragraph 34: “It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender. It was not the contention of the appellant that this standard or norm prescribed by the 1st respondent was discriminatory having no just or reasonable relation to the object of inviting tenders, namely, to award the contract to a sufficiently experienced person who would be able to run efficiently a IInd class restaurant at the airport. Admittedly the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd class restaurant should be awarded was laid down, the 1st respondent was not entitled to depart from it and to award the contract to the 4th respondents -9- who did not satisfy the condition of eligibility prescribed by the standard or norm. If there was no acceptable tender from a person who satisfied the condition of eligibility, the 1st respondent could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of the 4th respondent. When the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years' experience of running a IInd class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for the contract. There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years experience of running a IInd Class restaurant, but who were otherwise competent to run such a restaurant and they might also have competed with the 4th respondents for obtaining the contract, but they were precluded from doing so by the condition of eligibility requiring five years' experience. The action of the 1st respondent in accepting the tender of the 4th respondents, even though they did not satisfy the prescribed condition of eligibility, was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action.” 11. The observations made in the said paragraph are also equally applicable to the facts of the present case. In a given case, a student can legitimately make a grievance that if he was aware that marks are also given by putting tick marks instead of darkening the circle, he would have also put such tick marks as it would be less time consuming. Such students, in our view, cannot be discriminated as they would be subjected to discrimination if such deviation is permissible. The respondents should have well in advance -10- notified any change in this behalf so that the students who are likely to be affected could have acted accordingly while giving answers in the examination. It was not proper on the part of respondents, therefore, to prepare software in such a manner and feeding the data in such manner in the computer programme. Under the normal circumstances we would have directed the respondents to deduct the marks of those students who have put tick marks. However, considering the fact that it may affect large number of students and considering the conduct of the present petitioner, we decline to give any such direction in this behalf and no relief is required to be given to her as it is an admitted fact that the present petitioner herself got the benefit of such marks by putting tick marks even though the petitioner knew very well that it was not permissible under the rules to put such tick marks. Having taken advantage of that situation, now it is not open to the petitioner to turn around by taking advantage of the situation by asking the Court that the marks to other students on that basis should be deleted. Considering the said aspect, therefore, we are not inclined to give any relief to the petitioner in view of the fact that she is now estopped from challenging her result in view of what is stated above. However, in order to see that the future of the students may not suffer as ultimately a student who is appearing for the CET examination is putting his/her hard labour for years with an object that he or she may get admission in such an important course, no laxity, therefore, can be permitted in the matter of assessment of the answer sheet as it may affect the future of the students. -11- 12. In this view of the matter, we direct the respondents that in future at the time of taking CET examination, the answer sheet should be evaluated strictly as per the instructions contained in the brochure viz. Condition No. 3.3 which is published and on the basis of which the students are appearing in the examination. No student should be required to be kept in dark as all State actions should be transparent. In a given case a bright student may loose his chance of getting admission in the medical course if respondents ultimately adopt procedure de hors the procedure already prescribed and made known to such students. Learned Government Pleader has submitted that appropriate decision will be taken by the State in order to put the house in order and that in future such exercise shall be taken as per the procedure already published in the form of brochure as well as the instructions. He has assured the Court that if any deviation is to be made, the same will be made known in advance to the students community so that they are not likely to be affected by any such deviation. We hope the State will act accordingly and whatever change is required to be made in computer data or software, the same will also be done accordingly. 13. Subject to what is stated above, this writ petition is disposed of by declining the relief to the petitioner as prayed for in this petition, however, subject to the aforesaid directions. Rule is discharged. No order as to costs. -12- P. B. MAJMUDAR, J. A.A. SAYED, J.