Civil Procedure Code (CPC)

Admission to m.d. ayurveda – held, requires re-consideration

RETIRED JUDICIAL OFFICER

Education and University – Admission to M.D. Ayurveda – Method of evaluation – Held, raised by petitioner in this writ petition requires re-consideration by constituting subject expert committee - Sought quashing of Ext.P15 to extent it changes answer key to question Nos. 106 in Paper I from ‘D’ to ‘B’ and to extent it deleted question Nos. 28 and 126 in Paper II in respect of admission to M.D. Ayurveda course - Best method would be to conduct examinations based on specific text books authored by specific experts - Students participating in examination will have to provide their answers in accordance with opinion made by such experts or authoritative text books – Petition allowed (P 1, 21 and 22)

Kerala High Court
Nileena J.Prabhash vs State Of Kerala on 17 October, 2016
        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938

                  WP(C).No. 33756 of 2016 (T)
                  ----------------------------


PETITIONER(S):
-------------

            NILEENA J.PRABHASH,
            AGED 27 YEARS, W/O.VISHAK S.RAVI,
            VAIKKATHUPARAMBIL, MUHAMMA P.O.,
            CHERTHALA, ALAPPUZHA - 688 525.


            BY ADVS.SRI.ELVIN PETER P.J.
                   SRI.T.G.SUNIL (PRANAVAM)
                   SRI.K.R.GANESH

RESPONDENT(S):
--------------

         1. STATE OF KERALA,
            REPRESENTED BY THE SECRETARY TO GOVERNMENT,
            HEALTH & FAMILY WELFARE DEPARTMENT,
            SECRETARIAT, THIRUVAANTHAPRUAM - 695 001.

         2. THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION,
            DIRECTOR OF AYURVEDA MEDICAL EDUCATION,
            THIRUVANANTHAPURAM - 695 001.

         3. THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
            OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
            HOUSING BOARD BUILDING, SANTHI NAGAR,
            THIRUVANANTHAPURAM - 695 001.

             BY GOVERNMENT PLEADER SMT.K.R.DEEPA

       THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
       ON 02-12-2016 THE COURT ON 09-12-2016, DELIVERED THE
       FOLLOWING:


msv/

WP(C).No. 33756 of 2016 (T)
---------------------------
                            APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------
P1   TRUE COPY OF THE B.A.M.S. DEGREE OF THE PETITIONER AWARDED
     BY THE UNIVERSITY OF KERALA

P2   TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS FOR THE
     ENTRANCE EXAMINATION FOR ADMISSION TO POST GRADUATE COURSE
     IN M.D.AYURVEDA PUBLISHED BY THE 3RD RESPONDENT

P3   TRUE COY OF HALL TICKET ISSUED BY THE 3RD RESPONDENT TO
     THE PETITIONER TO APPEAR FOR THE ENTRANCE EXAMINATION

P4   TRUE COPY OF QUESTION PAPER SERVED TO THE CANDIDATES ON THE
     ENTRANCE EXAMINATION FOR PAPER 1

P5   TRUE COPY OF QUESTION PAPER SERVED TO THE CANDIDATES ON THE
     ENTRANCE EXAMINATION FOR PAPER 2

P6   TRUE COPY OF THE RELEVANT EXTRACT PROSPECTUS PRESCRIBING
     THE PROCEDURE FOR FILING OBJECTIONS ISSUED BY THE
     3RD RESPONDENT

P7   TRUE COPY OF RELEVANT PAGE OF SUSHRUTHA SAMHITHA WHICH
     WOULD SHOW THE MOST APPROPRIATE ANSWER TO QUESTION NO.106

P8   TRUE COPY OF SANSKRIT VERSION OF EXT.P7

P9   TRUE COPY OF THE RELEVANT EXTRACT OF SUSRUTHA SAMHITHA
     CHIKILSA SATHANAM IN CHAPTER DWIVRANIYAM CHIKILSITHAM

P10  TRUE COPY OF SANSKRIT VERSION OF EXT.P9

P11  RELEVANT EXTRACT OF PIPPALLI REFERRED TO IN QUESTION NO.126

P12  TRUE COPY OF SANSKRIT VERSION OF EXT.P11

P13  TRUE COPY OF ANSWER KEYS PUBLISHED BY THE 3RD RESPONDENT ON
     2.10.2016

P14  TRUE COPY OF OMR SHEET OF THE PETITIONER IN THE ENTRANCE
     EXAMINATION

P15  TRUE COPY OF NOTIFICATION DATED 17.10.2016 ISSUED BY THE
     3RD RESPONDENT

P16  TRUE COPY OF RELEVANT EXTRACT OF RANK LIST OF THE ENTRANCE
     EXAMINATION FOR ADMISSION OF M.D.AYURVEDA COURSE 2016

P17  TRUE COPY OF ORDER DATED 26.9.2014 IN WPC NO.19470/2014 OF
     THIS HON'BLE COURT

RESPONDENT(S)' EXHIBITS
-----------------------                     NIL
                                      //TRUE COPY//

                                      P.S.TO JUDGE
msv/



                        SHAJI P. CHALY, J.
                -----------------------------------------------
                 W.P.(C). No.33756 of 2016
            -----------------------------------------------
         Dated this the 9th day of December, 2016


                             JUDGMENT

This writ petition is filed by the petitioner seeking to quash Ext.P15 to the extent it changes the answer key to question Nos.106 in Paper I from 'D' to 'B' and to the extent it deleted question Nos.28 and 126 in Paper II in respect of admission to M.D. Ayurveda course and for other related reliefs.

2. Material facts for the disposal of the writ petition are as follows; petitioner acquired the qualification of Bachelor in Ayurveda Medicine and Surgery (B.A.M.S.) in the year 2013, evident from Ext.P1. Petitioner passed B.A.M.S degree securing 1st class. Petitioner is qualified to seek for admission to M.D. Ayurveda in any specialties. Third respondent published Ext.P2 prospects for the entrance examination for admission to Post Graduate course in Ayurveda for the  academic year 2016 - 2017. The same is approved by the 1st respondent as per an order dated 26.8.2016. In Ext.P2 paragraph 12.4.3(vi) (b) it is stated as follows:

"Each question will have four answers marked (A), (B), (C) and (D). The most appropriate answer will have to be selected. Thereafter, using ballpoint pen (blue or black ink) mark the bubble corresponding to the most appropriate answer."

 

3. According to the petitioner, thus it is clear, method of marking the OMR sheet was by bubbling the most appropriate answer. Each question carries 3 marks and for each correct answer, the candidate was entitled for 3 marks and for each incorrect response, one mark will be deducted from the total score.

4. Petitioner submitted her application pursuant to Ext.P2 prospectus. Thereafter, 3rd respondent issued hall ticket, evident from Ext.P3. Consequent to which, petitioner appeared for the entrance examination held on 1.10.2016. The scheme of the examination is by providing two papers  viz., Paper I and Paper II, evident from Exts.P4 and P5. In accordance with the notification published by the 3rd respondent, after the entrance examination is over, the answer key to the questions included in Papers I and II for the entrance examination was to be published. After publication of the answer keys, candidates, who had any objection to the answer key so published was entitled to file their objections to the said answer keys. The relevant extract of the prospects of the said procedure is produced as Ext.P6. The objections filed by the candidates to the answer keys was to be examined by an expert committee constituted for the purpose and after the same, on the basis of the recommendation of the said expert committee, a provisional rank list would be published deleting wrong questions shown in the answer key and also changing the answer keys on the recommendation of the expert committee.

5. In Paper I, question No.106 was the following: "After the management of Unmaada, Sushruta advises............to prevent the recurrence. The answers provided for the same  for selection are as follows:

(A) Vishudda Deha (B) Sneha Basti (C) Praanaayama (D) ((A) and (B)) From the multiple choice given for the above said question, according to the petitioner 'D' was the most appropriate answer. The fact that, 'D' was the most appropriate answer will be clear from the Sushrutha Samhitha "Uthara Thanthram Volume - 2", which is the Malayalam translation of the authoritative Sanskrit Treaties on Ayurveda, evident from Ext.P7. It is the contention of the petitioner that, Ext.P7 would establish that, the most appropriate answer to question No.106 was answer key 'D'. The Sanskrit version on the subject is produced as Ext.P8. According to the petitioner, petitioner correctly bubbled the answer key No.D to question No.106 and therefore, the petitioner is entitled to get 3 marks. Similarly in Paper 2, question No.28 reads as follows:

"Sushruta advises Lekhana Karma with .....in the  absence of Shastra". Answers provided for selection as follows:-

(A) Karkashapatra (B) Samudra Phena (C) Plota (D) ((A), (B) & (C))

6. According to the petitioner, the correct answer to the above question was answer key 'D'. The 'Lekhana Karma' in question No.28 means scraping of disease affected areas on the body and answer key No.A 'Karkashapatra' means rough leaves and answer key No.B 'Samdudra Phena means bone of cuttle fish and answer key (C) Plota means cloth. Thus question No.28 means scraping of disease affected body has to be done with either rough leaves or bone of cuttle fish or cloth. Therefore, according to the petitioner, answer key 'D' is the most appropriate answer to question No.28, which will be clear from Ext.P9 Susrutha Samhitha Chikilsa Sthanam in Chapter Dwivraniyam Chikilsitham and the Sanskrit version of the same is Ext.P10. Therefore, according to the petitioner, petitioner had answered the question correctly and entitled to get additional mark. So also question No.126 in Paper 2 reads as follows:

Pippali is advised by Bhavaprakasha in the management of ........and the answers provided are;

(A) Parinaam Shoola (B) Bhagandara (C) Bhagna (D) Jalodara Visravana

7. According to the petitioner, Pippali referred to in question No.126 is Ayurvedic medicine. The correct answer key to the above question is answer key (A) viz., Bava Prakasha, the drug Pippali comes under Hareetakyadi Varga and there it is clearly stated that it cures shoola. Shoola means pain and Parinaam Shoola is the pain during digestion of food, evident from Exts.P11, and P12 Sanskrit Version.

According to the petitioner, petitioner correctly bubbled answer key 'A' to question No.126 and she was entitled to be awarded 3 marks for the above question. After the entrance  examination was over, 3rd respondent published the answer keys on 2.10.2016, evident from Ext.P13. In Ext.P13, against question No.106, answer key was correctly shown as 'D'.

Thus it is clear that, petitioner having bubbled answer key to 'D' to question No.106 had correctly answered the said question. Further in the answer key for Paper II against question No.28, the answer key shown therein is D. Petitioner has correctly bubbled the said answer key to question No.28 and entitled to get 3 marks. Similarly the correct answer key shown to question No.126 is 'A' and petitioner had correctly bubbled answer key to question No.126, there also petitioner is entitled to get 3 marks.

8. Going by the procedure prescribed by the entrance examination, the candidates appeared for the entrance examination are entitled to retain a copy of the OMR sheet and the same is produced as Ext.P14. Ext.P14 when compared to the questions given in Papers 1 and 2 in Ext.P13 would show that petitioner is entitled to get a total of 591 marks including 3 marks for question Nos.106 in Paper I and  question Nos.28 and 126 in Paper II. After publication of Ext.P13, it is understood to the petitioner that, certain candidates filed objections to the answer keys published in Ext.P13. Thereafter, the said objections were placed before the expert committee and on the recommendation of the expert committee, Ext.P14 revised answer key was published by the 3rd respondent as per notification dated 17.10.2016. As per Ext.P15, 3rd respondent interalia changed the answer key to question No.106 in paper I as 'B', which was earlier shown in Ext.P13 as 'D'. Similarly in Paper II, question Nos.28 and 126 are deleted. According to the petitioner, Ext.P15 to the extent it changed the answer key to question No.106 and the deletion of question Nos.28 and 126 in Paper II are illegal, arbitrary, unfair and discriminative, and therefore, violative of Article 14 of the Constitution of India. By the revision of answer key by publishing Ext.P15, petitioner lost 9 marks in total for the entrance examination and because of the above, petitioner, who was otherwise entitled to get 591 marks got only 582 marks and thereby the rank of the petitioner was lowered down to 117, evident from Ext.P16. The total number of seats available for MD Ayurveda is 132 and out of which, after deducting the seats reserved to category candidates, the open merit candidates are entitled to seek admission only to 92 seats. Thus by publishing Ext.P15, the right of the petitioner to seek admission to MD Ayurveda has been nullified. It is also stated that, address of the candidates included in Ext.P16 rank list is not shown in Ext.P16 and there is no source to obtain the address of those candidates included in Ext.P16 rank list. These are the background facts raised by the petitioner seeking to set aside Ext.P15 and for other related reliefs.

9. Third respondent has filed a counter affidavit stating that the conduct of Post Graduate course in Ayurveda Vashaspathi MD Ayurveda/Ayurveda Dhanwanthari MS(Ay) for the year 2016-2017 are governed by the rules and regulations stipulated in the prospectus approved by the Government vide order No.412/2016/AYUSH dated 26.8.2016. As per the prospectus, selection of candidates and allotment  of specialties are made from the list published by the Commissioner for Entrance Examinations based on the entrance examination conducted on all India basis at Thiruvananthapuram. It is also submitted that, the question papers for the entrance examination and answer keys were prepared by an expert team from outside the State in order to maintain the secrecy of the same. The answer key of the questions were published in the website of the Commissioner for Entrance Examinations on 2.10.2016. It was notified that complaints if any regarding the questions/answer keys should be forwarded to the Commissioner for Entrance Examination on or before 7.10.2016, 5 p.m.. Accordingly complaints were filed against 32 questions in Paper I and 33 questions in Paper II by a total of 92 candidates. The complaints received with regard to the question/answer keys have been subjected to scrutiny by another expert committee comprising of 5 faculty members of the State.

10. Based on the recommendations of the expert committee constituted for the purpose, 3 questions have been  deleted and the answer key of 3 questions were revised in paper I while 4 questions have been deleted and the answer keys of the two questions have been revised in paper II. The remaining 53 questions did not require any change in answer key. The 12 changes effected in the final answer key based on the recommendation of the expert committee is also provided in the counter affidavit. It is also submitted that in paper I, question Nos.51, 75 and 115 were deleted and key of question No.25 changed as 'C', question No.106 changed as 'B' and question No.128 changed as A. So also in paper II, question Nos.28. 105, 126 and 128 were deleted and key of question No.22 changed as A and question No.61 changed as C. Thus a total of 3 questions in paper I and 4 questions in paper 2 have been deleted while preparing the mark list. The marks obtained for remaining 147 questions in paper I have been multiplied by 150/147 and the marks obtained for the remaining 146 questions in Paper II have been multiplied by 150/146, to get the actual marks corrected to 4 decimals. The above formula is applied to award proportionate marks  based on the score of the candidates in the questions considered for valuation to compensate the loss of marks for the deleted questions. Accordingly the results were prepared and published on 17.10.2016.

11. It is also submitted that, the Commissioner of Entrance Examinations conducted entrance examinations for PG Ayurveda course, prepared the rank list and category list and handed over the same to the Director of Ayurveda Medical Education. The Director of Ayurveda Medical Education conducted allotment as per the provisions contained in the Government approved prospectus. A different expert committee comprising 5 experts from the State was constituted to scrutinize and finalize the objections raised by the complainants. Answer keys were finalized on the basis of the opinions of the subject experts. It is also stated that petitioner was a candidate for entrance examination for admission to PG Ayurveda (MD Ayurveda) course 2016 and assigned Roll No.90464. She had attended the examination and secured 117th rank for the same.  Petitioner has also submitted complaints on question No.140 in paper I and questions Nos.84 and 109 in paper II with regard to the question/answer keys of the PG Ayurveda Entrance Examination 2016. A total of 65 questions including 3 questions challenged by the petitioner were examined by the expert committee and finalized the answer key as stated above. Of these 65 questions/answer keys challenged by the candidates, only 12 were found genuine by the expert committee. The remaining 53 questions including 3 questions challenged by the petitioner were found to be not requiring any change by the expert committee. It is also stated, the objections of all the candidates were considered by the same expert committee constituted by the Commissioner for Entrance Examinations. After publishing the result based on the final answer key, the petitioner has come up with another set of questions/answer key through this writ petition, which are entirely different from the complaints which she raised when the complaints were called for. It is also submitted that petitioner has not objected to the expert committee's rejection  of her original three complaints. Instead, she has now come up with another set of three questions, which according to the answer key finalized by the Expert Committee are not to her advantage. The effect of answer key changes/deletion of questions on the results of the petitioner is summarized below:

Question  Answer Key  Final Answer key   Answer    Marks as per  Marks as per
  No.    Published on   published on  marked by the pre-revised  final answer
          02.10.2016    17.10.2016     petitioner      Key           key

                                   Paper I

              A              C              C       -1(wrong)     3 (correct)



              A          Deleted           A        3(correct)    1.836735
                                                                (Compensated
  51                                                               marks)

              D          Deleted           D        3(correct)    1.836735
                                                                (Compensated
  75                                                               marks)

              D              B             D        3(correct)

  106                                                                 -1

              A          Deleted           A        3(correct)    1.836735
                                                                (Compensated
  115                                                              marks)

              D              A              C       -1(wrong)     3 (correct)



                                                    Paper II

  22          D              A             A        -1(wrong)     3 (correct)






Question  Answer Key  Final Answer key  Answer     Marks as per Marks as per
  No.    Published on   published on  marked by the pre-revised  final answer
          02.10.2016    17.10.2016     petitioner      Key           key

              D          Deleted           D        3(correct)     2.04795
                                                                (compensated
  28                                                               marks)

  61          B              C              B       3(correct)    -1(wrong)

              B          Deleted            B       3(correct)     2.04795
                                                                (compensated
  105                                                              marks)

              A          Deleted           A        3(correct)     2.04795
                                                                (compensated
  126                                                              marks)

              A          Deleted           A        3(correct)     2.04795
                                                                (compensated
  128                                                              marks)


12. It is further submitted that, the rank list for MD Ayurveda has been published and the activities of allotment have been announced by the Director of Ayurveda Medical Education. The procedure followed by the Entrance Commissioner is clearly given in the prospectus for the Entrance Examination, which is admitted by all the candidates. Petitioner has not challenged the prospectus in the writ petition. The attempt of the petitioner is to take advantage of the known position of the petitioner and the writ petition is only an experimental one.

 

13. Petitioner has filed a reply affidavit reiterating the stand adopted in the writ petition. That apart it is contended that, when the expert committee as stated in the counter affidavit from outside the State of Kearla has prepared the question, it is beyond doubt that, the said expert committee prepared the questions relying upon authoritative texts on Ayurveda and obviously the answer key as contained in Ext.P13 was also published by the expert committee relying on authoritative texts. It is also contended that, the expert committee from outside the State of Kerala, which prepared the question papers and answer keys cannot be said to be erroneously prepared or that the answer key published by them is incorrect or mistaken. Therefore, the objections to Ext.P13 answer key should have been considered by the very same expert committee, who prepared the question papers and answer keys instead the procedure followed by the respondent is placing the objections received after publication of Ext.P13 answer key to a different expert committee. These are the background facts available to decide the issue with  respect to modification of Ext.P13 answer key by Ext.P15 order dated 17.10.2016.

14. Heard learned counsel for petitioner, learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the respective parties.

15. Publication of Ext.P13 answer key is not a disputed matter. The case projected by the petitioner is dependent on Ext.P13. According to the petitioner, if the answer key to question No.106 in paper I was not changed from D to B, petitioner would not have lost 3 marks and so also, if question Nos.28 and 26 were not deleted, petitioner would have secured full marks for the said questions, rather than the proportionate marks awarded consequent to the deletion of the questions. According to the petitioner, by virtue of the authoritative texts, Exts.P7, P9 and P11 translations of Exts.P8, P10 and P12 would clearly establish that the answers given in Ext.P13 publication of answer keys to the aforesaid questions were based on the authoritative text books. It is also contended that, the respondents have no case that, the question paper prepared outside the State is not by an expert committee relying on authoritative text books.

16. True, in the prospectus provided for the Entrance Examination, it is stated that complaints if any made within a time frame provided therein would be referred to an expert committed selected for the purpose. However, as per the stipulations contained in the prospectus itself, the findings of the said expert committee will be final and the same cannot be challenged by any of the candidates, who participated in the entrance examination. According to the learned counsel, that doesn't mean that, if any illegality or arbitrariness reflects in the action of the expert committee, the same are susceptible to challenge in writ proceedings invoking the powers conferred on this court under Article 226 of the Constitution of India. It is also contended by the learned counsel that, it is not discernible from Ext.P15 the circumstances under which the expert committed has arrived at a conclusion that, the answers given in Ext.P13 answer key by the committee which prepared the question papers and  answer key was wrong and therefore, the committee constituted ought to have called for the records from the committee, which prepared the question papers and answer keys and should have verified the circumstances under which the answer keys were prepared as per Ext.P13. Therefore, on a perusal of Ext.P15, it is evident that, the revision was made to Ext.P13 without resorting to any documents and without ascertaining how the answers were prepared by the expert committee.

17. On the other hand, learned Senior Government Pleader stoutly opposed the contentions put forth by the petitioner, mainly on the ground that, petitioner was well aware of the stipulations contained in the prospectus issued for the examination, wherein it is clearly stipulated in clause 12.6 of Ext.P6 that, all complaints received will be referred to the subject expert committee to be constituted by the Controller of Examinations and the recommendation of the committee will be final. It is also stipulated therein that, necessary modification will be made in the published answer  keys based on the recommendations of the committee and individual reply will not be given to the candidates on the decision of the committee. Therefore, it is contended that, after conduct of the examination and after evaluating the complaints by the subject expert committee as provided under the stipulations of Ext.P6, petitioner cannot turn around and say that the procedure adopted by the subject committee is bad. It is also submitted that, petitioner has lost the full mark only in respect of question No.106 in Paper I and since the questions in Paper II were deleted, proportionate marks were given and it cannot be said that, petitioner has lost full marks for the deleted questions. Therefore, it is the contention of the Senior Government Pleader that, petitioner has not made out any case in the writ petition especially due to the fact that petitioner has also raised complaints based on the provisions of Ext.P6 prospectus in which petitioner could not succeed. However, the same turns out to be a reason for the petitioner to challenge a portion of Ext.P15 order, based on the evaluation made by the subject expert committee. It is also  contended that, even though petitioner challenged after the examination in respect of certain questions, the same was declined and the said action of the subject expert committee is not challenged by the petitioner.

18. Learned counsel for the petitioner has invited my attention to the judgment of the Apex Court in Rajesh Kumar and others v. State of Bihar and others [(2013) 4 SCC 690] to canvass a proposition that, in a selection process, if an erroneous evaluation is done using wrong answer key, proper direction/relief is to direct re-evaluation and no need to direct successful examinees to write examination afresh . Paragraph 15 of the judgment is relevant to the facts and circumstances of this case which is as follows:

"15. There is, in our view, no merit in that contention of Mr Rao. The reasons are not far to seek. It is true that the writ petitioners had not impleaded the selected candidates as party- respondents to the case. But it is wholly incorrect to say that the relief prayed for by the petitioners could not be granted to them simply because there was no prayer for the same. The writ petitioners, it is evident, on a plain reading of the writ petition  questioned not only the process of evaluation of the answer scriptts by the Commission but specifically averred that the "model answer key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "model answer key" was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "model answer key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in `A' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to `A' series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue  directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key."

 

19. Taking note of the respective submissions made across the Bar, the question to be decided solely revolves round Ext.P15 order passed by the 3rd respondent, Commissioner of Entrance Examinations apparently based on the report of the subject expert committee constituted by the respondents to deal with the complaints submitted by the candidates. The thrust of the contention advanced by the petitioner is that, the answer key is published as per Ext.P13. Petitioner has answered the questions and on an evaluation of question No.106 in Paper I and question Nos.28 and 126 in Paper II, the answers given by the petitioner are correct as per the answer key, Ext.P13. However, on complaints given by the candidates, a subject expert committee was constituted afresh and the said committee has interfered with Ext.P13 answer key and Ext.P15 order is the outcome of such  interference by the subject expert committee. In order to substantiate that, Ext.P13 answer key is correct, petitioner has relied upon three text books, which are produced as Exts.P7 to P12 Malayalam and Sanskrit version of the text book. So also it is the contention of the petitioner that, the case of the respondents is that, the question paper and answer keys were prepared by an expert committee outside the State for maintaining the maximum secrecy. Apparently the question paper and answer keys were prepared relying on some authoritative text books. Therefore, unless and until the circumstances which persuaded the expert committee which prepared the question paper and answer key is evaluated to examine the circumstances under which the subject committee prepared Ext.P13 answer key, it cannot be said that, the said expert committee constituted for dealing with the complaints subsequent to the entrance examination can be said to be correct. The text books Exts.P7 to P12 also show that, the opinion contained thereunder tallies with the answer given by the petitioner to the questions under dispute. Therefore, in my considered opinion, the prohibition contained under clause 12.6 of Ext.P6 prohibiting the candidates from challenging the decision of the subject Expert Committee cannot stand in the way of petitioner to invoke the writ jurisdiction conferred on this court under Article 226 of the Constitution of India, since in my considered opinion, there is patent arbitrariness and illegality in the procedure adopted by the subject expert committee which dealt with the complaint.

20. Yet another reason persuaded me to reach such a conclusion is that, there are no reasons assigned in Ext.P15 order passed by the 3rd respondent based on the evaluation of subject expert committee to arrive at a conclusion different from Ext.P13 published answer keys. Moreover, I am of the considered opinion that, in respect of the questions under issue, the answers could be based on different opinions by experts on the subject, or on the basis of authoritative text books. Unlike the examination conducted on the basis of prescribed text books, in an examination of this nature,  various experts, and authoritative text books, may be having different opinions in the same subject matter. The question then is, how to reconcile the opinion while preparing the answer key and evaluated by the subject expert committee. In my considered opinion, best method would be to conduct the examinations based on specific text books authored by specific experts, or authoritative text books. Therefore, the students participating in the examination will have to provide their answers in accordance with the opinion made by such experts or authoritative text books.

21. Taking note of all these aspects, I am of the considered opinion that, the issue raised by the petitioner in this writ petition requires re-consideration by constituting a subject expert committee different from the committee appointed to consider the complaints with respect to the questions challenged by the petitioner in this writ petition and evaluate Ext.P13 answer key and its basis, and the method of evaluation done by the subject expert committee pertaining to Ext.P15 order and arrive at a conclusion. The  same shall be done untramelled by findings and observations contained in Ext.P15 order. If the petitioner is able to secure rank for getting admission for MD Ayurveda on the basis of revaluation done, in accordance with the rank list prepared, an additional seat shall be provided to the petitioner to pursue the MD course for the academic year 2016-2017. The whole exercise shall be completed by the respondent at the earliest and at any rate within a month from the date of receipt of a copy of this judgment. I make it clear, I have entered into the findings in this writ petition with reference to the peculiar facts and circumstances of this writ petition and the directions are not intended to have a general bearing. The said directions are issued since it is submitted by the Government Pleader that already the selection process is over and the selected candidates are not in the party array. However, when the writ petition came up for admission, an interim order was passed whereby the petitioner was permitted to participate in the counselling provisionally, on 24.10.2016.

 

The writ petition is allowed to the extent indicated above.

 

Sd/-

SHAJI P. CHALY JUDGE smv 05.12.2016

 
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