1 WP 7169/11 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR Before : Hon'ble Mr.Justice Sujoy Paul Writ Petition No.7169/2011 Alok Gupta -Vs- M.P.Professional Examination Board and Ors. Writ Petition No.7110/2011 Krishna Kant Dubey and ors -Vs- State of Madhya Pradesh and others Writ Petition No.7374/2011 Naresh Puri Goswami -Vs- State of M.P. and another Writ Petition No.7473/2011 Jaideep Singh Gurjar -Vs- State of M.P. and another Writ Petition No.7629/2011 Rajeev Jain -Vs- State of M.P. and another Writ Petition No. 7376/2011 Jitendra Singh and another -Vs- State of M.P. and another 2 WP 7169/11 Writ Petition No.7373/2011 Chandra Prakash S Chauhan -Vs- State of M.P. and another And Writ Petition No.7359/2011 Chandrakant Pandey and others -Vs- State of M.P. and others ------------------------------------------------------------------------------------------- Sarva/Shri Anil Mishra, Prashant Sharma, N.K.Gupta and D.S.Raghuvanshi, Advocates for the petitioners. Shri B.K.Sharma, Government Advocate for respondents/State. Shri Deepak Chandna, Advocate for respondent/Board. ------------------------------------------------------------------------------------------ O R D E R (02/12/2011) Since all these petitions are identical in nature, they are taken up together with the consent of the counsel for the parties and are disposed of by this common order. 2. In this batch of petitions, the petitioners have challenged the action of the respondent - Professional Examination Board ( Board ) in prescribing wrong answers in model answer sheet and deleting the questions illegally. The case of the petitioners is that because of aforesaid illegality, result of the candidates is substantially changed. Many candidates who were initially found to be selected were subsequently declared as fail /unsuitable. 3. Learned counsel for the petitioners submit that it is an admitted fact that four questions were found to be incorrect and were decided to be deleted by the Board. Thereafter, the Board found that one question was wrong and the said question was deleted. They submit that the model answer sheet itself is 3 WP 7169/11 incorrect which resulted into improper valuation and allotment of marks to the candidates. 4. The petitioners have prepared a chart which is reproduced hereunder : dza- iz'u dzekad iz'u iz'u&i= lsV dza- O;kie }kjk ekWMy Answer Sheet dk mRrj OkkLrfod mRrj mRrj izLrqr djus dk lzksr 1 iz- dz- &4 i`Foh ij fdruk izfr'kr ty gS A LskV A fujLr 71% & 70.9% 3- N.C.E.R.T. dh d{kk 6 dh Hkwxksy fo"k; dh Book esa ist ua- 34 ij 4- bUVjusV ij Wikipidia. com miyC/k tkudkjh ds vk/kkj ij 2 iz- dz- &11 Ek-iz- esa ikuh jksdks vfHk;ku dc 'kq: gqvkA LskV A Answer-(C) 7 ebZ 2001 Answer-(A) 3 Qjojh 2001 1- e-iz- 'kklu }kjk eqfnzr esU;qvy “jktho xka/kh tyxzg.k {ks= izca/ku fe'ku” ikuh jksdks vfHk;ku 2001 ds vuqlkj 3 iz- dz- &18 dkSu lk jkT; vuqikr esa lcls T;knk taxy }kjk O;kfir gSA LskV A Answer-(C) v:.kkpy izns'k Answer-(D) ukxkyS.M 1- e-iz- 'kklu dh ekfld izdk'ku if=dk “e-iz- lans'k” ds ekg vxLr 2011 ds vad esa Nih fjiksVZ ds vuqlkj ist dz- 36 ij miyC/k 2- Forest Survey of India (Ministry of Environment & Forest) Govt. of India dh 2009 dh fjiksVZ ds vuqlkj 4 iz- dz- &50 ekuo 'kjhj esa vkSlru fdruk [kwu gksrk gS A LskV A Answer-(C) 6-5 yhVj Answer-(B) 5 yhVj 1- N.C.E.R.T. dh d{kk 11 dh thofoKku fo"k; dh Book esa ist ua- 285 ij miyC/k (288] 289 ij Hkh miyC/k) 2- esDxzkfgy izdk'ku dh “blsfUl;y vkWQ ,ukVkseh ,aM fQft;ksykWth” fo"k; dh iqLrd ds ist dz- 292 ij miyC/k 5 iz- dz- &80 xaxk unh dh yackbZ fdruh gS A LskV A fujLr Answer-(C) 2500 fd-eh- 1- N.C.E.R.T. dh d{kk 11 dh HkkSfrd Ik;kZoj.k dh Book esa ist ua- 26 ij miyC/k 6 iz- dz- &92 ,d v'o 'kfDr esa fdrus okWV gksrs gSa A LskV A Answer-(D) 748 okWV Answer-(C) 746 okWV 1- N.C.E.R.T. dh d{kk 11 dh HkkSfrdh dh Book esa ist ua- 128 ij miyC/k 4 WP 7169/11 7 iz- dz- &21 Hkkjr dh QhMj Airlines dks fdl uke ls tkuk tkrk gSA LskV A Answer-(B) ok;qnwr Answer ,;j bafM;k Wikipidia.com ij mifLFkr tkudkjh ds vk/kkj ij 8 iz- dz- &39 Hkkjr dh vkfFkZd fufr dkSu rS;kj djrk gS A LskV A fujLr Answer-(C) foRrea=ky; 5. On the basis of this chart, the contention of the learned counsel for the petitioners is that their answers were correct and they find support for those answers from very reputed books which were published by NCERT, by the State Government and on the basis of information available at Wikipedia.com. They submit that on the basis of this material, there is no manner of doubt that the respondents have committed an error in prescribing wrong answer in the model answer sheet and deleting the question illegally. In nutshell, the case of the petitioners is that their answers are supported by authentic books issued by the Government institutions or reputed website Wikipedia.com and, therefore, their answers deserve to be accepted. 6. Per contra, Shri Deepak Chandna, learned counsel appearing for respondent/Board submits that the Board has prepared Examination Regulations of 2001 ( Annexure R-1). By taking this Court through various provisions of the Regulations, Shri Chandna submits that the model answer sheets are prepared in the manner and methodology provided in Regulations 162 to 167 and thereafter the entire process is completed. He submits that the entire examination was conducted by the experts and there is no flaw in the same. The mistakes which had occurred have been rightly corrected on the basis of deliberations and analysis by the subject experts. He submits that the scope of judicial review on this aspect is very limited. 5 WP 7169/11 7. Shri Deepak Chandna, learned counsel appearing for the respondent/Board further submits that following four questions were cancelled after the Board received nine representations. These questions are as under : (I) Q.No.34 in Set-A 'Korba' super-thermal power station is located in (A) Goa (B) Madhya Pradesh (C) Orissa (D) Maharashtra (II) Q.No.39 in Set-A Who formulates the monetary policy in India ? (A) SBI (B) RBI (C) Finance Ministry (D) Planning Commission (III) Q.No.49 in Set-A Who established Muslim League ? (A) Dr.Zakir Hussain (B) Sir Sayyid Ahmad Khan (C) Barrister Jinhan (D) Annie Besant (IV) Q.No.80 in Set-A What is the length of the Ganga river ? (A) 5500 Km (B) 3500 Km (C) 2500 Km (D) 4000 Km Subsequently,one question in General Knowledge paper was found to be defective which was Question No.4 in Set-A which reads thus - 6 WP 7169/11 Q.No.04 in Set-A What is the percentage of water on the earth ? (A) 70% (B) 100% (C) 29.2% (D) 78.8% Stand of the respondent/Board is that similarly answer to one question which is Question No.92 in Set-A was found to be wrong in the key in as much as the answer option D was fed which was corrected to be answer option C. The same was changed which reads thus - Q.No.92 in Set-A One horsepower is equal to (A) 752 watts (B) 750 watts (C) 746watts (D) 748 watts Shri Chandna submits that because of these modifications /changes, the result has certainly affected and 99 candidates who were earlier put in the merit list lost their place and 113 candidates who could not be included in the merit list earlier were included in the merit list. Learned counsel has produced photo copy of the entire proceedings for the perusal of the Court. 8. The respondent/Board has heavily relied upon various judgments in support of its stand. He relied upon the Apex Court judgment in the case of Kanpur University vs. Samir Gupta and others, AIR 1983 SC 1230, two Division Bench decisions of this Court in Anjali vs. Chaiman, Professional Examination Board, AIR 1990 MP 253, Vivek 7 WP 7169/11 Jain vs. Professional Examination Board, AIR 1994 MP 164 and Karnataka High Court judgment in Dr.Praveen Kumar I.Kusubi vs Rajiv Gandhi University of Health, 2004(3) KarLJ 218. Relying on these judgments, Shri Chandna submits that since the entire exercise of examination was proper and change of key answer was done by subject experts, in the absence of any malice being alleged against those experts, this Court is under no obligation to sit as an appellate authority and examine the correctness of the same. He submits that merely because yet another probable answer is available in another book that will not make out a case for interference by this Court. He submits that this is the job of expertise and subject experts who have decided to choose answer from a particular book. Unless it is shown that said answers are per se incorrect, there is no scope of interference by this Court. 9. I have heard learned counsel for the parties at length and perused the record. 10. The Apex Court in the case of Kanpur University (supra) has dealt with the question. It was held that the key answer should be assumed to be correct unless it is proved to be wrong and that should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. The Court further observed that the key answer must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct. 11. Division Bench of this Court by following the ratio decendi of the case of Kanpur University ( supra ) delivered judgment in the case of Anjali Saxena ( supra ). Para 6 of the judgment reads thus : 6. What happens when the correctness of this key answer is questioned ? The matter came for consideration by the Supreme Court in Kanpur University v. Samir Gupta. AIR 1983 SC 1230. It 8 WP 7169/11 was held that the key answer should be assumed to be correct, unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. The Court further observed that the key answer must be clearly demonstrated to be wrong, that is to, say, it must be such as no reasonable body of men well-versed in the particular subject would regard it as correct. In case of doubt, the key answer has to be preferred. When the key answer is shown to be incorrect beyond the realm of doubt that it should be rejected, in that event alone, the examinee cannot be penalized for not giving an answer which accords with the key answer. This decision was followed by a Division Bench of the Allahabad, High Court in the case of Pankaj Bhalla v. Rohilkhand University, Bareilly, 1989 All LJ 80.1. Another Division Bench of the Allahabad High Court (Lucknow Bench), in Krishna Kumar Roy v. State of U.P., Writ Petn. No. 3108 of 1980, decided on 17-12-1980 : (reported in AIR 1081 All 287), held that the Court should not lightly interfere with the opinion expressed by academic experts but may interfere only where the expert takes a view which no reasonable person could possibly take. The correctness or otherwise of the key answer, therefore, be based upon the touch stone of the decision in Samir Gupta's case (supra). (Emphasis supplied) 12. After dealing with the contentions of the parties, in para 11 this Court opined as under in Anjali Saxena's case ( supra ) : “11. For the aforesaid reasons, we are of the opinion that none of the petitioners in the two petitions could demonstrate that the key answers to the questions, referred to by them in their respective petition and as referred to above, are incorrect, i.e., they are such that no reasonable body well-versed in a particular subject, would regard it as correct. It may be that the answers ticked as correct by them may not be wholly wrong or may even be closely correct to the key answer, but then, as we have pointed out above, unless the key answer is demonstrated to be 'wrong', the key answer should be accepted as 9 WP 7169/11 the correct answer.” 13. Same view is taken by another Division Bench of this Court in Vivek Jain's case ( supra ). Following the dicta in Karnatak University's case ( supra), this Court has held as under : “13. The question is, whether any question admitting of two or more correct answers, out of four possible answers, deserves to be cancelled ? The Board has power to cancel such a question. If the Board has erred in not doing so, should the Court not cancel such a question ? The underlying idea behind the objective test is that a candidate marking one of the four possible answers to a question is not required to describe or give reasons to support his decision. When out of four possible alternatives only one possible alternative is correct, there is always an element of chance that the candidate may just by fluke or, accident mark the correct alternative. To control this evil, negative marking is done. But that way also one mark, i.e. 1/3rd of the full value of the question, if carrying three marks, is deducted. If a question admits of two or more correct answers out of four possible alternatives, the possibility of the candidate having marked the correct answer by accident increases in direct proportionate to the number of correct answers. With respect to such a question, the candidate may have marked the correct answer by chance or accident and yet may assert in Court that he purposely and knowingly marked the correct answer. There is no means of checking such a claim. The privilege of marking is given only to candidates appearing in objective tests. By the way, we the Judges do not have such a privilege to indicate our decision to matters coming before us by marking one of the two or three possible options open to us. We have to give reasons in support of our answer. This is not to decry the system of objective test, which is extensively being used in competitive examinations. In the conventional descriptive test, a candidate is required to describe his answers. That leaves no room for doubt as to how far the answers given are correct. But the demerit of the descriptive test is that only a few questions can be asked. It was not uncommon in 10 WP 7169/11 our days of studenthood that some students used to prepare only a few expected questions and would come out successfully in the exams. Students with poor or half knowledge of the subject coming out successfully in descriptive type of examinations was, and is, not an uncommon feature. As against this, the objective tests cover a wide area of the subject and the knowledge of the candidate is extensively tested. The system of objective test is no longer a new fangled concept and has taken, quite rightly, deep roots. 15. It may be made clear at the cost of repetition that the above rule will not apply where the Court comes to a conclusion that the key answer as also the particular answer marked by the candidate are both near-correct. In that situation, the controversy should be resolved by holding the key answer to be correct. This is the ratio of Samir Gupta's case, (AIR 1983 SC 1230) (supra). The other way of saying it is that, it may be that the answer marked by the candidate may not be wholly wrong or may even be closely correct to the key answer, but then unless the key answer is demonstrated to be 'wrong', the key answer should be accepted as correct answer. (See Anjali v. Chairman, Professional Examination Board in 1990 MPLJ 81) : AIR 1990 Madh Pra 253), In such a situation, the question would not be held to be defective and the student would not be given any advantage, if he marked any alternative other than the key answer.” (Emphasis supplied) 14. The Karnataka High Court in Dr. Pravin Kumar's case ( supra ) has also followed the same line and reasoning and held in paragraphs 14,15 and 16 as under : 14. As is clear from the statement of objections filed by the University, when representations were made challenging the key answers, they would be reviewed by the subject experts representing different branches of medicine and same has to be approved by the P.G. Entrance Test committee. The experts would take care and refer to the relevant textbooks and reference 11 WP 7169/11 books before suggesting any change in the key answers. It is only on the basis of the modified key answers, this scanned data is computed and the results are declared, so that all students who have taken the examination are treated equally and given the benefit of those modified answers, including to even the students who have not challenged the said key answers. Therefore, there is absolutely no discrimination in awarding the marks to all the students who have taken the examination on the basis of the modified key answers. 15. In the aforesaid judgment referred to by the learned Counsels for the petitioners, the Supreme Court was dealing with a case where there was no provision for challenging the answers though the scheme of the said examination provided for publication of the correct answers after the examination. Therefore, in view of the undisputed fact that there was no provision for challenging the key answers in the scheme of examination and when the expert of the University himself opined that some of the key answers were wrong coupled with the fact that sufficient material was placed by the students before the High Court to demonstrate that the said key answers were wrong coupled with the fact that most of the disputes are in respect of translation of English version of Science to Hindi, the Supreme Court upheld the judgment of the High Court, none of those factors are present in the present case. As such, those judgments have no application to the facts of this case. 16. In the aforesaid judgment, it was also held that the key answer should be assumed to be correct unless it is proved to be wrong. It should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, i.e., it must be such as no reasonable body of men well- versed in the particular subject would regard as correct. If there is a case of doubt, he would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalize the students for not giving an answer, which accords with the key answer, that is to say, with an answer which is 12 WP 7169/11 demonstrated to be wrong. In a system of multiple choice objective type test, care must be taken to see that questions having an ambiguous import are not set in the papers. That kind of system of examination involves merely the tick marking of the correct answer. It leaves no scope for reasoning or argument. The answer is 'yes' or 'no'. That is why the questions have to be clear and unequivocal. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and no marks assigned to it.” In para 20, the Karnataka High Court held as under : 20.As long as the procedure adopted in evaluation of these answer scripts are not arbitrary, reasonable, consistent, then the system cannot be found fault with. As long as all the students who took the examination are treated equally, then they cannot have any grievance whatsoever. It is settled law that in academic matter, the University's word is the last word. Court neither has the necessary expertise nor infrastructure to go into the correctness of such decision. This Court cannot sit in judgment over those findings and examine the material on record and arrive at its own conclusion as a Court of appeal. It is also not possible in such circumstances to go on appointing the committees after committees to go into the correctness of the decision of the committee. There won't be any end to this exercise. Therefore a key answer should be assumed to be correct unless it is proved to be wrong. It should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. If it is a case of doubt, unquestionably key answer 13 WP 7169/11 is to be preferred. Only if it is beyond the realm of doubt, possibly judicial review is permissible.” (Emphasis supplied) 15. A microscopic analysis of these judgments would show that the punch line/basic principle on the anvil of which the action is to be judged is whether any reasonable body of men well versed in the particular subject would regard it as correct. 16. Pausing here for a moment, the petitioners, on one hand, have relied upon the books published by NCERT, State Government and website wikipedia.com, on the other hand, the side of the respondent/Board is that the subject experts have decided to take the answer from “The Pearson General Knowledge Manual, 2009” Authors being Edgar Thorpe and Showick Thorpe. He further submits that the experts have taken answers from “Pratiyogita Darpan Panorama Year Book”. He submits that in the opinion of the experts, these books are authentic in nature. It is clear that expertise of the experts is not called in question by the petitioners in these cases. In other words, the competence of the experts is not called in question by the petitioners in these matters. It is the prerogative of the Board to choose the subject expert. Question is whether on the basis of the principles and law laid down by the Apex Court in Kanpur University's case ( supra ) and followed by various High Courts, the action of the Board can be said to be per se illegal and the answers are such which no reasonable body of men well versed in the particular subject would regard it as correct. The experts have relied upon certain books and derived questions and answers from the said books. Which book is to be relied upon is a million dollar question in these cases. The Writ Court cannot decide about the selection of book from which question-answers are to be selected. This is essentially the job of experts who have admittedly undertaken this 14 WP 7169/11 exercise. The proceedings of the Board placed before this Court would show that the experts have chosen the questions/answers from the aforesaid books. 17. In a recent judgment in the case of Himachal Pradesh Public Service Commission vs. Mukesh Thakur, (2010) 6 SCC 759, the Apex Court held in para 20 as under : “20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.”