LPA No.984 of 2008 (AGAINST THE ORDER AND JUDGMENT DATED 20.10.2008 PASSED IN C.W.J.C. NO. 7631 OF 2007.) ****** KHUSHBOO SHARIVASTAVA, D/O SRI MOHAN PRASAD SHRIVASTAVA, R/O MOHALLA- B-43, BUDHA COLONY, P.S.-BUDHA COLONY, DISTRICT- PATNA …….. ……………….PETITIONER/APPELLANT VERSUS 1. THE UNION OF INDIA THROUGH THE SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF INDIA, NEW DELHI 2. THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF INDIA, NEW DELHI 3. THE SECRETARY, ALL INDIA PRE-MEDICAL/PRE DENTAL ENTRANCE EXAMINATION, CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA, 2, COMMUNITY CENTER, BEET VIHAR, NEW DELHI-92 4. THE DY. SECRETARY, ALL INDIA PRE MEDICAL/PRE-DENTAL ENTRANCE EXAMINTION, CENTRE, BEET VIHAR, NEW DELHI-92 5. THE CONTROLLER OF EXAMINATION OF INDIA PRE-MEDICAL/PRE- DENTAL ENTRANCE EXAMINATION, CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA, 2, COMMUNITY CENTRE, BEET VIHAR, NEW DELHI-92 6. VINEET KUMAR, S/O SRI SHASHI BHUSHAN SINGH, R/O CHIKNANTE COLONY, P.S.- HAJIPUR, DISTRICT- VAISHALI 7. KUMAR GAUTAM, S/O SRI VIJAY KUMAR, R/O NIRMALA SADA, NEAR KAILASH VIHAR, SOUTH SHIVPURI, P.S.-SHASTRI NAGAR, DISTRICT- PATNA ……….. ……………. ……..RESPONDENTS *********** FOR THE APPELLANT :- MR. SANJAY SINGH, ADVOCATE MR. SANJEEV KUMAR SINGH, ADV MR. UMAKANT PD. NO. 1, ADV. FOR RESPONDENTS 3-4 :- MR. VINAY KRISHNA TRIPATHY, ADV FOR RESPONDENTS 1 & 2 :- MR. SUDHIR SINGH, ASSTT. S.G. ************* C.K. Prasad, ACJ & S.K. Sharma, J. Writ petitioner- appellant, aggrieved by the order dated 20th October, 2008 passed by the learned Single Judge in C.W.J.C. No. 7631 of 2007, has preferred this appeal under Clause 10 of the letters patent. Short facts, giving rise to the present appeal are that the writ petitioner no. 1- appellant herein appeared in the All - 2 - India PMT/DPT Entrance Examination held on 1st April, 2007 conducted by the Central Board of Secondary Education (hereinafter referred to as CBSE). The result of the examination was published on 5th of June, 2007 and finding herself unsuccessful she made request for revaluation of the answer sheets. When the said request was not acceded to she preferred the writ application. When the writ application was taken up on 24th of August, 2007 this Court directed her to deposit a sum of Rs. 25,000/- (twenty five thousand) and while doing so it was observed that in the event it transpires that her paper was correctly evaluated, the amount deposited by her shall be treated as cost and be paid to the CBSE. It was further observed that on receipt of the amount the CBSE shall produce her answer sheets. She deposited the amount and her answer sheets were produced. The learned Single Judge on consideration of the materials placed before it came to the conclusion that her answer sheets were not correctly evaluated and she was entitled for two more marks. Finding of the learned Single Judge in this regard, reads as follows : “After thorough perusal of the answer sheets and model answers the result of the petitioner after scrutiny as per information of the petitioner no. 1 has been placed before this court through the supplementary affidavit which contains comparative chart of model answers given by petitioner no. 1 with reference to certain questions in the papers of Botany, Zoology and - 3 - Chemistry. This court was also taken through the comparative chart of answers given by petitioner no. 1 and the model answers as well as the answers in the book of N.C.E. R.T. which is also incorporated in the chart. The reply to question no. 3 (e) in the paper of Botany and the reply of the petitioner to question no. 20 (a) –iii in chemistry shows that her answers were correct as per the prescribed text book for those subjects but since the answers were to be given in the subjective manner, it was not in the same language as in the model answers. Thus, this court is satisfied that petitioner’s answer sheets were not correctly evaluated in the context of questions worth two marks.” Despite the aforesaid finding the learned Single Judge declined to grant relief to the petitioner, inter alia, observing that the seats have already been allotted and one year of study has been undertaken by the successful candidates and in the face thereof it would be inexpedient to direct for her admission. The learned Single Judge also took into consideration that the examination of the next year had already been conducted and admission granted to the successful candidates. Absence of any interim order reserving any seat in case of success of the writ petition was also taken into account by the learned Single Judge while declining the relief. However, while doing so it observed as follows : “Model answers are suitable for objective tests only because two correct answers may be - 4 - described by good students in two different languages and only an expert in the subject can evaluate the correctness of such answers. When the correct answer given by the petitioner for two questions did not fetch her the required two marks, it reflects upon the correctness of the assessment system adopted by the C.B.S.E. for evaluating subjective answers. The C.B.S.E. in its own wisdom may adopt a better system to finalize model answers or it may adopt objective questions even for the final examination. These are suggestions which must be considered by the experts with a view to prevent same kind of injury to any other candidate in future.” Mr. Sanjay Singh appearing on behalf of the appellant submits that learned Single Judge on its own finding ought to have granted relief to her for her admission in the next session. It is undisputed that if two marks are added in her marks, same shall entitle her admission in MBBS Course. Mr. Binay Krishan Tirpathy appearing on behalf of the respondent Nos. 3 to 5 had gone into the root of the matter and assailed the findings of the learned Single Judge that the petitioner was entitled for two more marks. He submits that this Court, in the face of the regulation of the C.B.S.E. prohibiting revaluation exceeded in its jurisdiction in evaluating her marks and coming to the finding that she was entitled for two more marks. He points out that in sum and substance this Court had evaluated the answer sheets which is not permissible in law. In - 5 - support of his submission, he has placed reliance on a Division Bench judgment of this Court in the case of Ganesh Prasad Yadav & ors. vs. The State of Bihar & Ors and analogous cases reported in 1995 (2) PLJR 170 and our attention has been drawn to paragraph 36 of the judgment which reads as follows: “No doubt, there are mistakes in the alternative answers or responses to the four questions, but on that basis it cannot be said that the Commission adopted any unfair means or acted in an unfair manner, on the other hand, the aforesaid mistakes appear to have been committed by the experts to whom the work of setting of questions and their suggestive answers was entrusted. It cannot be said that there was unfair treatment to the non-selectees in particular. All the candidates including the successful candidates including the successful candidates have answered the same set of questions and in that view of the matter either all the candidates have suffered equally or took advantages of wrong suggestive answers. In that view of the matter, in spite of the aforesaid errors, in my view, it would not be proper to quash the preliminary test for the aforesaid defects.” Reliance has also been placed on a decision in the case of PRAMOD KUMAR SRIVASTAVA Versus CHAIRMAN, BIHAR PUBLIC SERGVICE COMMISSION, PATNA AND - 6 - OTHERS reported in [(2004) 6 SCC 714] and our attention has been drawn to the following passage from paragraph 7 of the judgment which reads as follows : “We have heard the appellant (writ petitioner) in person and learned counsel for the respondents at considerable length. The main question which arises for consideration is whether the learned Single Judge was justified in directing the re- evaluation of the answer book of the appellant in General Science paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer book. There is a provision for scrutiny only wherein the answer- books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks.” Submissions advanced do not commend us. In absence of any provision for re-evaluation of answer sheets in the relevant rules, no candidate in an examination has got any - 7 - right whatsoever to claim or ask for the evaluation of his/her marks, but this does not mean that this Court in exercise of its high prerogative writ denuded of the power to examine the correctness of the answer sheets when such a challenge is made. The power to issue high prerogative writ to the superior courts is given to advance justice and this Court cannot shut its eyes when glaring mistake is pointed out. Here, in the present case, as observed earlier while directing for production of the answer sheets the learned Single Jude had put the petitioner to terms, she was required to deposit a sum of Rs. 25,000/- (twenty five thousand) and only thereafter, the learned Single Judge directed for production of the answer sheets. This Court came to the conclusion that the petitioner was entitled for two more marks. This exercise has been done by this Court in exercise of its high prerogative writ and rules framed by the C.B.S. E. would not preclude this Court from exercising this power. It is hallowed by time and sanctified by precedent that power of this Court under Article 226 and 227 of the Constitution cannot be curtailed by any rules or regulations. In view of what we have observed, the decision of this Court in the case of Ganesh Prasad Yadav (Supra) and of the Supreme Court in the case of Pramod Kumar Srivastava (Supra) shall have no bearing in the facts of the present case. In those cases, the issue was not the jurisdiction of this Court to re-evaluate the answer sheets in exercise of its power of judicial - 8 - review but the entitlement of a candidate to ask for re- evaluation of the answer sheets from the Board/University conducting the examination. Mr. Tripathi then, submits that in the facts of the present case the learned Single Judge ought not to have held that the petitioner was entitled for grant of two more marks. He points out that it is not the case of the petitioner that the questions were incorrect or for that matter the model answers. He further points out that the matter was examined by the Professors and it was found that answers given by the petitioners in regard to question no. 3 (e) and 20 (a) (iii) are not correct. According to him, this Court in exercise of power of judicial review will not substitute the opinion of the expert on the subject. Reliance has been placed on a decision of the Supreme Court in the case of RAJBIR SINGH DALA (Dr.) Versus CHAUDHARI DEVI LAL UNIVERSITY, SIRSA AND ANOTHER reported in (2008) 9 SCC 284 and our attention has been drawn to paragraph 31 of the judgment, which reads as follows: “We agree with Mr. Patwalia, learned counsel, that it is not appropriate for this Court to sit in appeal over the opinion of the experts who are of the view that Political Science and Public Administration are interrelated and interchangeable subjects, and hence a candidate who possesses masters degree in - 9 - Public Administration is eligible for the post of Lecturer in Political Science and vice versa. We are told that a large number of persons having qualifications in the interchangeable/interrelated subjects have been appointed Readers/Professors/Lecturers and are continuing as such in various colleges and universities in the State.” We do not have the slightest hesitation in accepting the broad submission of Mr. Tripathi that this Court in exercise of its power of judicial review would not ordinarily differ with the opinion of the expert, but as a proposition of law it cannot be said that in no circumstance the Court can differ with the conclusion of the expert. It is well known that the Court is expert of the experts. Therefore, it cannot be said that the learned Single Judge erred in examining the merit of the two answer sheets. Mr. Tripathi has taken us to the opinion of the professor in this regard. As observed earlier, dispute is in regard to question no. 3 (e) in Botany and question No. 20 (a) (iii) in Chemistry. Question No. 3 (e) reads as follows : “Write the type of inflorescence, Placentation and fruit in each of the following. (e) Wheat In the model answer of the C.B.S.E following answer has been indicated and petitioner’s answers have been indicated in the right side:- - 10 - Question - Model Answer - Answer of Petitioner Inflourescence - Spike of Spikelets - Compound spike Placentation - Basal - Basal Fruit - Caryopsis - Caryopsis The opinion of the retired Reader in the department of Zoology is as follows: “Q. No. 3 (e) - The appropriate answer to the type of inflorescence in wheat is only “Spike of Spikelets”. This is the standard Taxonomic term. The other Term “compound spike” is being loosely used in several books.” As regards question no. 20 (a) (iii), the opinion of the Professor is as follows : “Q. No. 20(a) III :- The answer written by the candidate shows that he/she lacks the complete understanding of the subject. Let the following be understood in this connection :- (i) The presence of asymmetric carbon is not the 100 % surety for the optical activity of a compound. (ii) There could exist optically active compounds having no asymmetric atoms of carbon. (iii) The presence of Chiral carbon atom is a must for the optical activity of the compound. Thus the answer given by the candidate is not totally correct and not acceptable.” - 11 - These opinions are dated 10th February and 15th February 2008, but those opinions were not placed before the learned Single Judge. We have considered the opinion of the two experts but from that it is very difficult to infer that the answers given by the petitioner were wrong. The learned Single Judge had rightly observed that answers of those questions were to be given in the subjective manner. In his opinion the language may differ but that itself shall not render the answer of the petitioners wrong. Accordingly, we concur with the finding of the learned Single Judge that the petitioner’s answer sheets were not correctly evaluated and she was entitled for two more marks. Mr. Singh, submits that the petitioners did what was possible for her to do. According to him, the result was published on 5th of June, 2007 and petitioner without waiting presented the writ petition before this Court on 13 of June, 2007 and after it was processed, filed on 3rd of July, 2007 and therefore learned Single Judge on its own finding ought to have directed for admission. Mr. Tripathi however, submits that at such a distance of time it would be inexpedient to direct for her admission. We have given our anxious consideration to this aspect of the matter. In case, we show door to the petitioner and decline her relief, the very system will be put to ridicule. The - 12 - petitioner has approached this Court within 8 days of the publication of the result. It was not possible for her or for that matter any litigant to force the Court to hear the matter immediately. Systemic delay occurs and for that blame cannot be put on the petitioner. It is well settled that no citizen can be allowed to suffer for act of other. Had the writ petition heard within the reasonable time from the date it was filed, perhaps this argument would not have been available to the respondents. Taking into consideration the aforesaid facts, we are not inclined to decline the relief to the petitioner only on the ground that much time has elapsed in the face of finding that she is otherwise entitled. A Division Bench of this Court when confronted with such a situation in the case of The Bihar Combined Entrance Co vs. Vishakha Gupta reported in 2008 (1) PLJR 847 directed as follows: “In the circumstances, in our opinion, it will be just and proper to direct the respondents-appellants to grant admission of the writ petitioner-respondent, to the MBBS for the Session 2007-08, if necessary, by raising an additional seat for her. This is necessary because the respondents have admitted next candidate in order of merit to MBBS course, but since she has not been impleaded and has already gone some length in course, it will be unjust to dislodge her without hearing her. Moreover, it is not a case in which any irregularity of general Rules has taken place affecting a large number of - 13 - candidates but is in the nature of one isolated case.” Such a direction has been given by the Supreme Court in the case of AMAN DEEP JASWAL Versus STATE OF PUNJAB AND OTHERS reported in (2006) SCC 597 which would be evident from paragraph 4 of the judgment. “On these peculiar facts, we are of the view that the appellant Aman Deep Jaswal is entitled to be admitted in MD Anaesthesia in Government Medical College, Patiala in the next academic year 2006-07 within the sanctioned intake of the college. Ordered accordingly.” In the facts of the present case, we are of the opinion that the petitioner deserves to be admitted in MBBS course in the next academic session 2009-10. We direct accordingly. In the result the appeal is allowed with the direction aforesaid and the order of the learned Single Judge is modified to the extent indicated above. No order as to cost. Patna High Court, Dated, the 06.02.2009, A.F.R./avin (Chandramauli Kr. Prasad, ACJ.) (Shyam Kishore Sharma, J.)