1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 1452 OF 2008 1. Manali S. Kale ] aged 17 years, through her natural ] guardian, her mother Mrs. Nisha ] Sadanand Kale, residing at A-10, ] Ganesh Bhavan, 3rd floor, S. B. Marg, ] Mahim, Mumbai 400 016 ] 2. Pranav Mahadeokar ] aged 17 years, through his natural ] guardian, his mother Mrs. Uma Sanjiv ] Mahadeokar, residing at B1/1, Samruddhi ] CHS, Baburao Parulekar Marg, ] Dadar, Mumbai 400 028 ] 3. Parikshit Juvekar, ] aged 17 years, through his natural ] guardian, her father Dr. Ramesh Laxman ] Juvekar, residing at Flat No. 8, UDCT ] Staff Quarter, Rafi Ahmed Kidwai Marg, ] Mumbai 400 019 ] 4. Pooja Bhojraj ] a major aged 18 years, residing at 13, ] 310, Ornate House, Veer Savarkar Marg, ] Dadar, Mumbai 400 028 ] 5. Raksha Algeri ] a major aged of 18 years, C-703, ] Khandwalla Arcade, Khandwala ] Lane, Daftary Road, Malad (East) ] Mumbai 400 097 ]..Petitioners 2 versus 1. Director, Directorate of Medical Education ] Research, Govt. Dental Collect. ] & Hospital Building, St. George' s Hospital ] Compound, Near V.T. Mumbai 400 031 ] 2. Saboo Siddiq Engineering and Polytechnic ] College, Byculla, Mumbai 400 008 ] 3. The District Collector, Custom House, ] Mumbai 400 001 ] 4. Joint Director of Higher & Technical ] Education, Dhobi Talao, Mumbai 400 001 ] 5. State of Maharashtra ] through its Department of Higher And ] Technical Education, Mantralaya Annexe, ] Mumbai 400 032 ].. Respondents WITH WRIT PETITION (L) NO. 1451 OF 2008 1. Swarali Chandrashekhar Angolkar ] aged 18 years, 2nd floor, Vikas Wadi, ] 168/C, Dr. Ambedkar Road, Dadar (East) ] Mumbai 400 014 ] 2. Sukurta S. Pradhan, aged 17 years, ] through her natural guardian Sanjay ] Laxman Pradhan, D-1 Pradhan Sagar, ] Jivdaya Lane, Ghatkopar (West), ] Mumbai 400 086 ] 3. Deepak Bagchandani, aged 17 years ] 3 through his natural guardian Bhagwan J. ] Bagchandani, 8-B, Sagar Sangeet, ] Opp: Colaba P.O. Mumbai 400 005 ] 4. Jai Vijay Juvekar, aged 17 years, ] through his natural guardian Sujata Vijay ] Juvekar, A5/D Dinanath Compound ] C. J. Road, Mahim, Mumbai 400 016 ] 5. Laher Shah, aged 17 years ] through her natural guardian daughter of ] Seema Shah, 61, Asha Building, 23, ] Doongarshi Road, Walkeshwar, ] Mumbai 400 006 ] 6. Twisha Shah, aged 17 years ] through her natural guardian, 9 Ashirwas ] Building, Dr. Ambedkar Road, Sion ] Mumbai 400 022 ] 7. Sidrah Hanif Patel, aged 17 years, ] through her natural guardian ] Zulekhar Hanif Patel, Ida Apartments, ] 2nd floor, Off Soonawala Agyari ] St. Michael Marg, Mahim (West), ] Mumbai 400 016 ] 8. Poduval Devika Vijayan ] aged 17 years, through her natural ] Anita Rajalakshmir Nair, A-1102, ] Atlantic Sagar City, V. P. Road, ] Off. S. V. Road, Andheri (West), ] Mumbai – 400 58 ] 9. Ronak Parag Ajmera, ] aged 17 years, through his natural ] guardian, ALPA Parag, Ajmera ] 3-Bungalow Krishna Apartments, ] Balt Lane, next Poisur Depot, ] 4 Kandivli (West), Mumbai 400 067 ] 10. Darsh Sheth, aged 17 years ] through his natural guardian Haren Sheth ] 401, Parna Kutir Building, Opp: Arihant ] Park, 60 feet Road, Ghatkopar (East) ] Mumbai 400 077 ] 11. Janki Sheth, aged 17 years, ] through her natural guardian, Haren Sheth ] 401 Parna Kutir Building, Opp: Arihant ] Bank, 60 feet Road, Ghatkopar (East), ] Mumbai 400 077 ] 12. Aditya Malik, aged 18 years ] C-5, Sandhya Vandan Plot No. 18, ] Bandra Reclamation, Bandra (West), ] Mumbai 400 050 ] 13. Omkar Ramesh Mane, ] age 17 years, through his natural guardian ] Rashmi Ramesh Mane, 308/703, ] Trikal Co-operative Housing Society. ] 90 feet Road, Pant Nagar, Ghatkopar ] (East), Mumbai 400 075 ] 14. Husain S. Bugadwala, aged 18 years, ] Audumber Building, 1st floor, Room No. ] 104, Seth Motishah Cross Lane, Love Lane ] Byculla (East), Mumbai 400 027 ] 15. Dhiraj V. Karamchandani, aged 18 years ] Shri Krishnadam Apartments, ] 304, Near Prabhat Garden, ] Ulhasnagar 421 005 ] 16. Parth Mahesh Manek, age 17 years ] through his natural guardian ] Mrs. Meena Mahesh Manek ] 5 age 47 years, 51, Utsav Building ] Podar Road, Santacruz (West), ] Mumbai 400 054 ].. Petitioners versus 1. The Director, Directorate of Medical ] Education & Research, Govt. Dental ] College & Hospital Building, ] St. George's Hospital Compound, ] Near V. T. Mumbai 400 031 ] 2. Wilson College, through the Principal ] Chowpatty, Mumbai 400 007 ] 3. R. M. Bhatt High School and Junior ] College, through the Principal ] 2nd floor, Gokhale Soc. Lane, Parel, ] Mumbai 400 012 ] 4. R. D. National College, through the ] Principal, Linking Road, Bandra (W), ] Mumbai ] 5. Ram Niranjan Ruia College, ] through the Principal, L. Nappo Road, ] Matunga, Mumbai 400 019 ] 6. Mithibai Junior College of Arts, ] Chauhan Institute of Science, through the ] Principal, Amrutben Junior College of ] Commerce & Economics, Juhu Road, ] Vile Parle, Mumbai ] 7. Smt. Gauri Dutt Mittal Vidyalaya ] through the Principal, Road No. 28 B, ] Sion (E), Mumbai ] 8. Anjuman Islam Saif Taiyabji High School ] through the Principal, Mumbai Central, ] 6 Mumbai ] 9. Thane Municipal Corporation School, ] through the Principal, Kisan Nagar, ] 23, Thane – West ] 10. Joint Director of Higher & Technical ] Education, Dhobi Talao, Mumbai 400 001 ] 11. State of Maharashtra, ] through its Departments of Higher & ] Technical Education, Mantralaya Annexe ] Mumbai 400 032 ]..Respondents WITH WRIT PETITION (L) NO. 1448 OF 2008 Manjiri Vijaysinh Patil ] Age : 19 years, presently residing at ] Flat No. 4, 2nd floor, Jaldeep Complex ] 810, Sadashiv Peth, Pune 411 030 ]..Petitioner versus 1. State of Maharashtra ] through its Department of Medical ] Education & Drugs, Madam Cama Road ] Mantralaya, Bombay ] 2. Director of Medical Education and ] Research, having its office at ] St. George's Hospital Compound, ] G.P.O. Mumbai 400 001 ]..Respondents Mr. Anand Grover i/b. Prakash Mahadik for the Petitioners in Writ Petition (L) No. 1452 of 2008. Mr. Mihir Desai for the Petitioners in Writ Petition (L) No. 1451 of 2008. Mr. V. M. Thorat for the Petitioner in Writ Petition (L) No. 1448 of 2008. Mr. M. D. Naik, AGP, for the Respondents - State. 7 CORAM: S.B. MHASE & A.A. KUMBHAKONI, JJ. Date of Reserving the Judgment: 19th June, 2008. Date of Pronouncing the Judgment : 3rd July, 2008. JUDGMENT : (Per: A. A. Kumbhakoni, J.) 1. Gone are those good old days when the success at examinations used to be measured by “t he class” with which students used to clear the examinations. One use to feel proud to have cleared the examination “in First Class” rather than Second Class or Third Class. With the increase in the competition started an era where such success was being measured not in terms of “ju st Class” as aforesaid but in terms of percentage of marks secured at the examinations, such as 58%, 63%, 72% etc. In this era started an additional concept of passing an examination in First Class “with Distinction”, meaning thereby passing the examination with more than 70% marks. Immense increase in the intensity of the competition, virtually 'cut-throat' , for seeking admission to professional courses, has landed us in an era where the success in the examination is counted in terms of actual number of marks, rather than just “a class' or “ just percentage”, secured at a competitive examination. This 8 is principally because one mark here and there, less or more, you either get or lose an admission to a professional course, not necessarily just Medical or Engineering. A close scrutiny of the merit list especially drawn for Medical or engineering courses will demonstrate that inter-se merit position therein is granted by applying a “tie-breaker rule” amongst several students (who are some times more than couple of hundreds or so) who have secured identical marks in all the three subjects for which a competitive examination is held. These subjects being Physics, Chemistry, Biology for Medical and Physics, Chemistry and Mathematics for Engineering. Several students secure identical marks in each of these subjects and then for deciding their inter-se merit position even the criteria of actual marks obtained at such examinations are found not enough and recourse is then taken by the examiners to a fortuitous circumstance – the date of birth. With the competition becoming further fierce, we have no doubt that soon we will enter an era where even a fraction of mark may prove fatal for somebody losing only and only “a chance” or getting just “a n opportunity”; to just learn or just educate himself/herself. One really feels very sympathetic for the new generation. 2. As a natural fall out of such competition amongst the students to secure more and more marks, the students cannot be faulted for “leaving no stone 9 unturned” to even get a single mark, if possible, in addition to what they have already got. One never knows, this single mark may change the entire career and consequently the life as also future of that student, if not his/her family. 3. As far back as in 1991 in the Judgment delivered by the Supreme Court in the case of Dr. Ku. Nilofar Insaf vs. State of Madhya Pradesh & Ors. reported in (1991) 4 SCC 279, the Supreme Court observed thus:- “Getting an admission into a professional course has become so difficult and competitive of late that litigation instituted by disappointed candidates has become a regular feature. This appeal, arising out of such a context, throws up for consideration certain aspects which call for a difficult exercise in balancing equities. We, therefore, proceed to discuss the facts and issues at some length.” If this is what the Supreme Court felt in 1991, after 17 years i.e. in mid 2008, it is no wonder that the courts are flooded with litigations dealing with competitive examinations involving very many delicate issues relating to such examinations, not only alleging irregularities in the conduct of such examinations but also as to the method and manner of evaluation of answer papers, conduct of counseling, allotment of seats, so forth and so on, not to mention the vexed issues of reservations. This group of petitions is one of such kind. 10 4. These petitions have been filed by the petitioners, who are examinees of a Common Entrance Test conducted by the respondent, State of Maharashtra for drawing up a merit list to conduct admissions to Health Science, Engineering etc. professional courses. The petitioners are inspired by a fond hope that ultimately this court may end up in awarding few additional marks to them which may at the end of the day, enable them to get in to a professional college of their choice. As issues relating to the careers of future citizens of this country are involved in these matters, with the consent of all the parties, we have taken up these matters for final disposal at the admission stage itself. 5. Hence, Rule in all the petitions. Rules made returnable forthwith. Heard for final disposal. 6. As we have heard all these petitioners together, we will collectively deal with their cases, arguments advanced by the learned counsels and our conclusions in that regard, instead of individually and separately dealing with each of them. 7. The Respondents conducted MHT-CET-2008, Maharashtra State Level Common Entrance Test (hereinafter referred to as “CET” for the sake of brevity) on 8.5.2008 across various Centers throughout the State. As many as 2,03,256 11 candidates from 35 Districts appeared at this examination. It is only the handful of such candidates, i.e. 5+16+1 ( total 22 ) have approached this court by way of these petitions seeking various reliefs, which can be summarised as under:- (1)Paper of the petitioner (only one petitioner) be checked manually by holding even partially marked circle as correct answer ; (2)Direction that additional compensatory marks proportionate to the loss of time (in one case 10 minuets and in another case 20 minutes) be awarded ; (3)Direction that the entire CET of all the students all over the State be conducted afresh. 8. The contentions raised in all the aforesaid three petitions are similar in nature, though specifics thereof slightly vary from each other. These particulars in any case are not going to make any difference to the ultimate conclusions that we may draw at the end of this Judgment and therefore without going into the specifics, we may reproduce hereunder the allegation in general made in these petitions. 9. The contentions of the Petitioners are as under :- 12 CET Examination comprised of only four subjects, namely, Physical, Chemistry, Biology and Mathematics. The subjects of Physical and Chemistry are compulsory whereas that of Biology and Mathematics are optional, in the sense that a student may have either Biology or Mathematics or both. The examination was divided into three parts. First part comprised of the common answer paper to be written in 90 minutes for both compulsory subjects of Physics and Chemistry. Second part related to the paper of Biology. The third part related to the paper of Mathematics. The Schedule in terms of actual timings so set out in the Information Brochure in nutshell was as under:- 9.30 a.m. - Entry in the Hall 9.50 a.m. - Distribution of answer sheets. 9.55 a.m. - Distribution of question booklets(Physics and Chemistry) 10.00 a.m. - Examination commences 11.20 a.m.- Warning Bell 11.30 a.m. - Part I concludes. The students appearing for Biology Examination were instructed to continue to sit in the Examination Hall, whereas those who were not appearing for Biology Examination were instructed to leave the Examination Campus. 11.35 a.m. - Distribution of question booklets (Biology) 11.40 a.m. - Examination commences 01.00 p.m. - Warning bell 13 01.10 p.m. - Conclusion of Part II. All the students were instructed to leave the Examination Hall after submitting the question booklets and the answer sheets. 02.30 p.m. - Entry in the Examination Hall 02.50 p.m. - Distribution of Answer sheets 02.55 p.m. - Distribution of question booklets (Mathematics) 03.00 p.m. - Examination commences 04.20 p.m. - Warning bell 04.30 p.m. - Part III concludes 10. The grievances of the petitioners are that at the time of actual conduct of the examination, either the papers were distributed with delay ranging from 10 to 20 minutes or that the answer sheets were collected early by 10 to 20 minutes. The thrust of the case of the petitioners is that adequate time, as contemplated by the aforesaid Schedule, was not provided to them for answering the question papers. Supervisors entrusted with the job of distribution and collecting of question papers and/or answer papers caused delay in distributing the question and/or answer- papers or pre-maturely collected the papers. Such misconduct of the supervisors has adversely affected the petitioners in as much as they could not get full prescribed time at their disposal for answering the question papers. In this regard it was emphasized that, taking into consideration the total number of questions to be 14 answered as against the time provided for answering them, each question was required to be answered in exact 54 seconds and therefore every second, let alone every minute, was crucial. It is contended that the Supervisors ought to have compensated the petitioners by granting them additional time to complete the answer-papers for the alleged loss of the time of the petitioners on account of strict non-observance of Schedule by the Supervisors in distribution and collection of questions/answer papers. 11. The Respondents have filed an affidavit in each case vehemently denying these allegations made by the petitioners. It is contended that 1939 students from the same blocks where the petitioners had appeared for the examination, in issue, did not make any grievance at all about the conduct of the examination. It is contended that the complaints made by the petitioners were thoroughly investigated in as much as the same were forwarded to the respective Collectors and/or Resident Deputy Collectors and/or Special Center In charge persons, as the examinations were conducted under their supervisions. It is submitted that thorough investigation has been carried out by the responsible very highly placed Revenue Officers who were in charge of the entire process of conduct of the examination. It is submitted that the reports in that regard have been received by the Competent Authority who conducted the examination and that these reports do 15 not at all substantiate any allegation made by any of the petitioners herein. 12. It is pertinent to note that these affidavits candidly disclose and admit that only in one room bearing No. 117 of Ramnarayan Ruia College, Matunga, Mumbai, disturbance did occur on account of sudden blow of the strong wind resulting into scattering of papers ( examination material) in the class room that were required to be gathered immediately. Obviously time was wasted in this exercise. This loss of time was compensated immediately at that time itself by awarding an equivalent additional/extra time to all the students sitting in the aforesaid Room No. 117. Thus, the affidavit tries to demonstrates that the Authorities were live and sensitive to the occurrence of any such problems and that whenever and where-ever it did occur, they have taken prompt action in compensating the students by awarding them additional/extra time, that too then and there only. 13. The affidavit aforesaid of the respondents emphasizes the fact that the conduct of the CET in issue was planned and executed very meticulously/methodically. It is contended in paragraph 5 as under:- “5. With reference to paras 7 to 11 of the petition, it is respectfully submitted that CET Examination is planned very meticulously and 16 conducted methodically and with all sincerity:- (a) For the smooth conduct of the CET Examination, the Collector of the district is made the Chairperson of the Committee and other members being RDC, Superintendent of Police, Education officer and Liaison Officer of the Director of medical Education and Research; (b) The RDC of the district is the Center In charge for all the district Centers. He appoints in consultation with the Collector, the sub-center In charge and others; (c) All staff appointed for conduct of examination are imparted training required for the conduct of the examination. This mandatory training is given twice prior to the date of examination. (d) In the training, bellmen are specifically instructed about the timings of the bell and the number of tolls to be given at a particular time. This schedule of ringing the bell is given in the booklet of training and a copy is given to every invigilator, supervisor and all supporting staff and the same is also displayed at the examination center for information; (e) The Competent Authority is aware of the importance of time for every student. Hence due importance is given to the distribution and collection of papers during the training to the staff with the help of audio visual aids. The pertinent details are circulated to every candidate through the brochures. (f) Students / parents are expected to register their grievances, if any, immediately after the conduct of examination, with the sub-center In charge. (g) The cognisance of a complaint is taken by the sub- center in charge who enquirers immediately into the details and gets a report prepared through the invigilators and supervisors; he submits his report along with all the examination material to the RDC of the district. 17 (h) It is respectfully submitted that the Department of Medical Education & Drugs, Mantralaya, Mumbai appoints atleast one observer for each district; the number of observers can be more than one depending on the number of examination sub-centers. The observers are required to assess the prevailing conditions at the examination sub-centers in respect of light, ventilation, safety etc. They report to the district places one day prior to the examination and ensure the above facts as well as verify that the seat numbers are properly allocated to each candidate. He is also required to observe on the day of examination, the smooth conduct of examination and in the event of anything going wrong, reports it to the State level authority. These observers directly report to the State level authorities at different intervals, on a day prior to the examination as well as on the day of the examination. (emphasis supplied by us) 14. When the matter was heard initially, the respondents were directed to file an affidavit in pursuance of which the aforesaid affidavit was filed. After going through the affidavit, the petitioners made a grievance that the same was not accompanied by the inquiry-reports relied by the Respondents in their affidavit. So we orally directed the counsel of the Respondents to give to the counsels appearing on behalf of the Petitioners, xerox copies of the reports relied upon by the respondents for coming to the conclusion that the grievance of the petitioners were without any substance. Accordingly xerox copies of the relevant documents were submitted not only to this court but also copies thereof were given to the 18 learned counsels appearing on behalf of the petitioners. After receiving these documents, the learned counsels appearing for the petitioners were granted time by this court to go through the same and take instructions in that behalf and the matters were adjourned. On the adjourned date, we have heard all the counsels at length and reserved this judgment on 19.6.2008, which is being delivered today. 15. The learned counsel appearing for the petitioners raised following contentions :- This court should presume that the contentions raised by the students are true and correct. The inquiries held were not thorough inquiries as claimed by the Respondents in as much as none of the complainants were called for giving their versions of the incident(s) in issue. A separate reports from each of the Supervisors against whom allegations were made ought to have been called for and produced before this court dealing with each of the allegation of the petitioners. The approach of the respondents appear to be that only because there appears to be no solution to the problem at hand, it is better to contend that there is no problem at all, in first place. The reports produced on record bear an intrinsic evidence that something was missing. There is an unfairness in the procedure that was followed, both in conducting the examination and in the conduct of the enquiry into the complaints of the petitioners, in as much as the petitioners were not given full 19 opportunity to substantiate their case during the course of enquiry. The reports submitted on record clearly show non application of mind in as much as, stereo type responses were obtained from those who were in charge of the conduct of actual affairs of the examination. The affidavit in reply on its face value disclose facts which are far from the truth in as much as the affidavits state that the petitioners were informed vide communication dated 8.6.2008 that their complaints have no substance, whereas the Collector-in-Charge had submitted a report to that effect only on 9.6.2008. It was thus submitted that the communication to the effect that the complaint of the petitioners was found to be without substance by the Collector could not have been dated 8.6.2008 (i.e. a day earlier) when the report of the Collector is 9.6.2008. Thus, the learned counsel appearing on behalf of the petitioners tried to put holes into the defense of the respondents that all was well and nothing had gone wrong, much less as alleged by the petitioners. 16. Before dealing with the