IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 25380 of 2007(U) ---------------------------------------- PETITIONER: -------------------- JISHA K., W/O. SANTHOSH G.O., 'SITHARA', CHAKKARAKKAL, P.O. MOWANCHERRY, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE DIRECTOR, L.B.S. CENTRE FOR SCIENCE & TECHNOLOGY, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI. M.R.SABU R3 BY ADV. SRI.P.B.SURESH KUMAR SC, LBS CENTRE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2008 ALONG WITH WPC NO. 23589 OF 2007 AND CONNECTED CASES, THE COURT ON 14/03/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.25380/2007 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR SET - 2007. EXT.P2: COPY OF THE RESULT OF THE PETITIONER IN SET MAY – 2007. EXT.P3: COPY OF THE ARTICLE WRITTEN IN THE MATHRUBHUMI THOZHIL VARTHA DTD. 14/07/2007 BY SRI. M.P.GOPINATH. EXT.P4: COPY OF THE NEWS REPORT WHICH APPEARED IN MATHRUBHUMI THOZHIL VARTHA DTD. 14/07/2007. EXT.P5: COPY OF THE NEWS REPORT WHICH APPEARED IN MATHRUBHUMI THOZHIL VARTHA. EXT.P6: COPY OF THE NEWS REPORT WHICH APPEARED IN MATHRUBHUMI THOZIL VARTHA DTD. 21/07/2007. EXT.P7: COPY OF THE MEMORANDUM DTD. 10/07/2007 FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR EDUCATION. 3RD RESPONDENT'S ANNEXURES: ANNEXURE R3(A): COPY OF G.O.(MS) NO.294/06 DTD. 15/12/2006. ANNEXURE R3(B): COPY OF THE MINUTES OF THE PASS BOARD FOR STATE ELIGIBILITY TEST 2007 DTD. 29/06/2007. ANNEXURE R3(C): COPY OF THE MINUTES OF THE PASS BOARD FOR STATE ELIGIBILITY TEST 2007 DTD. 7/08/2007. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NOs.23589, 24828, 25027, 25351, 25380, 27827, 28679, 29963, 30168, 30440 & 32966 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of March, 2008. JUDGMENT All these writ petitions concern the alleged irregularities relating to the State Eligibility Test conducted in May, 2007. Mainly, the issues can be categorised into four: (1) the method of computation of percentage for the purpose of valuation. This question arises in all the writ petitions. (2) the challenge against the moderation given for certain papers. (3) the allotment of 1.5 marks for each questions in Mathematics and Statistics instead of 1 mark as in respect of other papers. (4) request for granting moderation in respect of other subjects and also the challenge against the method adopted for preparation of question papers, answer choices and answer keys. This is mainly raised in Writ Petition No.32966/2007. 2. Firstly, I will consider the issue concerning the method of valuation. For brevity, I shall refer to the facts arising out of Writ Petition NO.25380/2007. In this case, the petitioner was a candidate who appeared WPC 23589/2007 etc. -2- for SET May, 2007 (Physics). There were two papers and the marks obtained by the petitioner as described in paragraph 1 of the writ petition, is reproduced below: ----------------------------------------------------------------------------------- Paper Maximum Marks Marks obtained % of marks ----------------------------------------------------------------------------------- I 99 49 49.49 II 117 59 50.43 Total 216 108 108/216 x 100 = 50% ---------------------------------------------------------------------------------- Ext.P1 is the prospectus issued for the said examination and clause 13 specifies the minimum marks to be secured by a candidate for passing the examination. The same with the heading, is reproduced below: “13. Requirement for Pass Those candidates who secure a minimum of 35% marks in each Paper (separately) and an aggregate minimum of 50% marks will be considered to have passed the Test.” 3. According to the petitioner, she had obtained 108 marks out of 216 which represents 50% of the aggregate minimum and therefore the petitioner has to be declared as passed in the examination, but, strangely by Ext.P2 the petitioner is shown as “failed in the examination”. The result thus published as per Ext.P2 is under challenge in the writ petition. The petitioner points out that the method adopted by the respondents for WPC 23589/2007 etc. -3- valuation was subjected to criticism by academicians and others and in support of the same, the petitioner has produced various articles published in Mathrubhumi Thozhil Vartha on different dates, as Exts.P3 to P6. Ext.P7 is the representation submitted by the petitioner to the Honourable Minister for Education, pointing out the illegalities therein and seeking to intervene in the matter. The petitioner contends that the method of computation adopted by the respondents by taking the percentage of marks of each paper and then taking its average is clearly an erroneous and irrational one. 4. The respondents have filed a detailed statement opposing the prayers in the writ petitions. It is admitted that clause 13 of the prospectus prescribes the minimum that has to be obtained by a candidate for passing the test. The sum and substance of the contention raised is that the Government had constituted as per Ext.R3(a), a Pass Board for SET examination and in the meeting of the said Pass Board held on 29.6.2007, they considered clause 13 of the prospectus and passed a resolution (Ext.R3 (b)) fixing the method of calculation to be adopted by them. The resolution is to the effect that the aggregate pass minimum should be determined by taking the average of the individual scores in “percentage” of both papers and not on the basis of the total marks from the two papers taken together. It is contended that they have made the calculation of aggregate by arriving WPC 23589/2007 etc. -4- at the L.C.M. It is also stated that they have considered the complaints of candidates and by Ext.R3(c), the complaints were found to be not correct. 5. The question that arises is whether the decision reflected in para 2.1 of Ext.R3(b) is in consonance with clause 13 of the prospectus. It is contended by learned counsel for the petitioners that the prospectus was adopted as provided by the relevant statutory rules. It is therefore contended that being a prescription made as empowered by a statutory rule, the Pass Board cannot, as per a resolution, modify the stipulations of clause 13 of the prospectus which appeared to be totally irrational also. Learned counsel for the petitioner also contended that the method adopted by the respondents is unscientific and irrational which resulted in acute hardship to persons like the petitioner who have obtained the minimum marks as stipulated in column 13 for the examination. It is submitted that the aggregate has to be worked out after adding the marks of each paper and taking the percentage of the total as demonstrated in paragraph 1 of the writ petition. In ground B the petitioner has provided an illustration to show that the method adopted by the respondents is clearly absurd. The illustration is like this: a candidate has obtained 100 marks in the first paper and '0' marks in the second paper out of 1000. The total percentage of marks will be 100/1100 which means 9%. But if the calculation now WPC 23589/2007 etc. -5- adopted by the respondents is resorted to, it will be as follows: “I Paper - 100% II Paper - 0 % Average of I & II = 100% + 0%/2 = 50%”, which will be totally irrational. 6. The question is; which is the right method which should be followed in consonance with clause 13 of the prospectus? A reading of the said clause shows that there is no ambiguity as such. A candidate will have to obtain a minimum 35% marks in each paper separately. He should also obtain an aggregate minimum of 50% marks for getting a declaration to have passed the test. The important words therein are: “marks” and “aggregate minimum”. Therefore, emphasis is on the minimum percentage of 35% of the marks and of the aggregate minimum of 50% marks. If the method adopted by the respondents is verified, it will be seen that they have taken the percentage of each paper separately and then they have taken the average of the percentage of marks awarded for each paper, i.e. after adding the percentage of marks for each paper and divide it by two to get the average. Thus, they have travelled away from the method provided in clause 13 of the prospectus. They have not adopted the method of adding the marks obtained in each paper and get the correct percentage by dividing WPC 23589/2007 etc. -6- it by the total marks and multiplying it by hundred. The same is the accepted popular method to get the correct percentage. Therefore, the total marks have been given a go-bye and clearly reliance is placed on the percentage of each paper. In fact, when the percentage is added together and are divided by two, then that will be clearly varying itself from the other method. If the method adopted in clause 13 is adhered to, then they will have to add the marks obtained for each paper and divide it by the total marks and get the correct percentage. 7. The question therefore is what is the import of the words “aggregate” and “minimum”. In the Oxford Reference Dictionary, the word 'aggregate' is given the meaning 'combined', 'total' and the word 'minimum' is given the meaning 'least amount possible'. Emphasis of the words 'aggregate' and 'minimum' with reference to clause 13 of the prospectus, is on the marks received and not to the average of percentage of marks as adopted by the respondents. Percentage of marks obtained for each paper will be a different integer than the individual marks. By calculating the percentage of the marks of two papers and taking the average of the same as noted already, the method to be worked out as per clause 13 is deviated. According to me, when the prospectus clearly spells out a method, the Pass Board cannot adopt a different method altogether and that too which is WPC 23589/2007 etc. -7- irrational. Percentage has to be calculated only for the purpose of finding out whether the candidate has obtained the minimum of 35% for each paper and an aggregate minimum of 50%. In view of the above, the contention that the aggregate of the fractional marks secured by the candidates can be determined only by arriving at the L.C.M. Of the denominators, is rejected. 8. Learned counsel for the respondents argued that the pass board is an expert body constituted by the Government as per Ext.R3(a) for conducting the examination and valuation, etc. and they are fully empowered to choose the method for calculating the marks. It is therefore submitted that this court cannot substitute the method adopted by the respondents. I am afraid, the said contention cannot be accepted for more reasons than one. 9. Firstly, the provisions contained in the prospectus are binding on all parties and the clauses therein can be amended only by any known method allowed by law. A subordinate body like Pass Board which is only created by the Government as per Ext.R3(a), is not competent to vary or amend the said clauses in the prospectus. Secondly, if the method adopted by the Pass Board is totally irrational in the sense that it is unreasonable and arbitrary, then, in exercise of judicial review this court can interfere with the same. These principles are well settled and any action which is WPC 23589/2007 etc. -8- unreasonable, arbitrary and irrational, will be against the principles enshrined in Article 14 of the Constitution of India. Any authority vested with power, will have to conform to the principles of Article 14. Therefore, the contention raised by learned counsel for the respondents cannot be accepted. 10. Therefore, I hold that the writ petitions as regards the said question succeed. It is declared that the method adopted as per para 2.1 in Ext.R3(b) for valuation of answer papers is clearly irrational, arbitrary and unconstitutional. The respondents have to conform to clause 13 of the prospectus, to arrive at the required percentage of marks after adding the marks of two papers and divide by total marks and to get its percentage and in all cases where it is 50% or above, the petitioners herein will be entitled to be declared to have passed in the examination. 11. The second point concerns the challenge against the method of moderation adopted by the respondents. In fact, the said question is covered against the petitioners, as per judgment in Writ Petition Nos.25664/07, 25667/07 and 34098/07. In the judgment in Writ Petition No.25667/2007, a learned Single Judge was pleased to hold that “moderation is not a right, it is only a concession given taking into account the circumstances. Simply because in respect of other subjects moderation WPC 23589/2007 etc. -9- has been granted, there will not be any discrimination, if moderation is not given in one subject.” I fully agree with the above view and the learned counsel for the respondents rightly placed reliance on the above decisions. Therefore, the said issue is found against the petitioners. 12. Petitioners in Writ Petition Nos. 23589, 24828 27827, 30440 and 32966 of 2007 have raised another question relating to the allotment of marks for different questions. This has reference to the interpretation of paragraphs 9.1 and 9.4 of the prospectus. In para 9.1, it is stated that the duration of the test will be 120 minutes and the total number of questions will be 120 except for Mathematics and Statistics where there will be only 80 questions with each question carrying 1.5 score. It is pointed out that in the question paper (produced as Ext.P2 in W.P.(C) No.27827/2007), in column No.6 it is stated that “for every correct answer 1 mark will be awarded.” The contention raised is that they are bound to comply with the said clause in Ext.P2 and cannot adopt the stipulation contained in para 9.1 of the prospectus. 13. In the statement filed by the respondents, they have pointed out that going by the prospectus, the provisions contained in para 9.1 allows them to allot 1.5 marks for each question for Mathematics and Statistics. It is also explained that prior to SET May 2007, all the subjects of Paper II WPC 23589/2007 etc. -10- had 120 questions carrying 1 mark each. During the previous years the pass percentage for the subjects Mathematics and Statistics was very low. One of the reasons attributed to this low pass percentage was that students did not get enough time to answer 120 questions with a time span of 2 hours. Considering the request of the candidates, the Government decided to reduce the number of questions of Mathematics and Statistics from 120 to 80, so that each question shall carry 1.5 marks to make the total for paper II at 120 marks as in the case of other subjects. It is also explained that at the time of printing the question papers, the instruction to the candidates could not be suitably modified to include the change in the allotment of marks for these two subjects due to oversight. They received several complaints regarding this from the candidates. But since the prospectus provides that each question will carry 1.5 marks, it is pointed out that there is no basis for the contention. 14. Going by para 9.1 of the prospectus, the respondents are well founded in submitting that the allotment of 1.5 marks for every correct answers in Mathematics and Statistics is perfectly in order. It has been explained that para 6 of Ext.P2 was not in tune with para 9.1 of the prospectus and that can only be a mistake. Learned counsel for the petitioners then pointed out that in para 9.4 it is stipulated that for each WPC 23589/2007 etc. -11- correct response, the candidates will be awarded 1 mark in both the papers and para 6 of Ext.P2 tallies with the said paragraph. It is true that para 9.4 provides for awarding of 1 mark in both the papers for each correct response. The same is the general provision, obviously. The exception provided in para 9.1 as regards Mathematics and Statistics is a special provision, since therein the number of questions are only 80, whereas in the other subjects the same will be 120. If one mark each is allotted for 120 questions, the total will be 120 marks and if 1.5 is taken for 80 questions, then also the total will be 120 marks. The idea behind reducing the number of questions for Mathematics and Statistics is that the candidates will now get sufficient time to answer the questions and when that is the object of the said provision, I am of the view that it cannot be said to be arbitrary or irrational. The particular stipulation in para 9.1 is a special provision as far as the two subjects are concerned and in that view of the matter, they are saved from the vice of arbitrariness. There is no challenge against the said para of the prospectus also. 15. In Writ Petition No.32966/2007 the challenge is based on certain other different grounds also apart from the points already noticed as above. It is contended that there were lot of mistakes in the questions and answer keys and illustrations have been given in paragraphs 8 to 10 of the writ WPC 23589/2007 etc. -12- petition. It is also submitted that there were several mistakes in the question papers and answer choices in respect of other subjects also. The other issue raised therein is that the respondents erred in limiting award of 5 marks as moderation to 17 subjects. The argument is that the 17 subjects were arbitrarily selected without any application of mind. Therefore, the petitioners seek for a direction that the adoption of 5 marks as moderation marks should be there in respect of each of the subjects. There is also a contention that some ineligible persons have passed the SET examination. 16. In fact, the challenge as regards the moderation is covered by the judgments of this court referred to above. The request for granting moderation to all subjects cannot be acceded to, since that is a matter which has to be considered by the respondents and this court cannot obviously direct the respondents to grant moderation in all subjects. Apparently, no person has got any right to claim particular marks as moderation in any particular subject. The choice of subjects is entirely depended upon various factors and the respondents cannot be found fault for selecting 17 subjects only. Therefore, the relief for grant of moderation to all subjects cannot be acceded to. 17. Then, the other question raised is that lot of mistakes have occurred in the preparation of questions, answer choice, answer keys, etc. WPC 23589/2007 etc. -13- The said contention has been answered by the respondents in paragraph 8 of the statement. It is pointed out that various complaints have been examined by the panel of experts of the respective subjects and they found that many of the complaints have no basis. Whatever correction was required, was done also. Ext.R4(d) minutes dated 11.6.2007 is relied upon to contend that expert panel had gone into such questions. It is also pointed out that complaints in respect of the questions for the subject Chemistry as referred to in the writ petition, have been examined by the expert panel and they found that all the questions are correct except question No.101 and accordingly the said question was deleted. 18. In the light of the above contentions raised by the respondents, I find that there are no merits in the writ petition. The court cannot be said to be an expert as held by the Apex Court in various decisions, to go into each questions and find out whether there is any mistake or other infirmities in the same. The matter has to be considered by the expert panel itself and as they have gone into such aspects and have also taken steps to rectify the mistake, I find that relief No.1 to declare that the conduct of SET in May, 2007 was illegal and arbitrary and seeking a further direction to conduct a fresh selection, cannot be granted at all. Apart from that, if such a relief is granted, it will affect the fate of various candidates who are not parties WPC 23589/2007 etc. -14- before this court. None of them have been impleaded as party respondents and no steps have been taken to implead persons on a representative capacity also. Therefore, Writ Petition NO.32966/2007 fails on the above ground. 19. Learned counsel for the petitioner has relied upon the decision of the Supreme Court in Kanpur University v. Samir Gupta {(1983) 4 SCC 309}, the decision of the Calcutta High Court in Jitendra Nath Banerjee and others v. West Bengal Board of Examination (AIR 1983 Calcutta 275) and the decision of J & K High Court in Dr. Riaz Ahmed and others v. Competent Authority and another ( AIR 1994 J & K 51) to contend for the position that this court will be justified in considering the issue raised as regards the mistake in the question papers, answer keys, etc. I am afraid, the said contention cannot be accepted in the light of the fact that already an expert panel appointed by the respondents have gone into the said matter and found them to be not correct. Therefore, the dictum laid down in those decisions cannot apply to the facts of this case. 20. In the light of the above, point No.1 is found in favour of the writ petitioners in all the writ petitions. The first respondent will adopt the method of valuation as provided in clause 13 of the prospectus and as WPC 23589/2007 etc. -15- discussed above and re-publish the results of the petitioners after adopting such valuation. They have to modify the method of valuation as held above and arrive at the correct percentage of marks. To enable the respondents to do so, the proceeding showing the result of those petitioners as “failed”, are hereby quashed. Needful shall be done within three weeks from the date of receipt of a copy of this judgment. It is further clarified that the relief as above will be confined to the petitioners herein. 21. The challenge against the moderation of marks, allotment of 1.5 marks for each questions for Mathematics and Statistics and the request for granting moderation for all subjects, raised in the various writ petitions is repelled, and petitioners in Writ Petition Nos.23589, 27827, 29963, 32966, 30168 and 30440 of 2007 are not entitled for any reliefs on such matters. The writ petitions are disposed of in the above terms. (T.R. Ramachandran Nair, Judge.) kav/ WPC 23589/2007 etc. -16-