# Dr. Anurag Kumar Tiwari and others v. Union of India and others

- **Citation:** (2010) 2 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-21
- **Case number:** Civil Misc. Writ Petition No. 23997 of 2010
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anurag-kumar-tiwari-and-others-v-union-of-india-and-others-41615
- **Pages:** 20

## Headnote

Sri Ashok Khare
Sri P.N. Saxena
Sri Girijesh Kumar Tripathi
Sri Kamal Kumar Singh

Counsel for Respondents:
Sri V.K. Singh
Sri K.S. Chauhan
Sri Hem Pratap Singh
Sri S.S. Tiwari
A.S.G.I.

Constitution
of
India,
Art-226Cancellation
of
whole
entrance
examination for MD/MS screening testText held on 18.02.2010-result declared
on 19.02.2010 on certain complaints two
members
committee
found
certain
irregularities in marking the answer
sheets-canceled
result
declares
on
1.4.10-even five members committee
found the re-evaluation marking as same
of scanner cancellation of entire exam by
Vice Chancellor.Without application of
mind would meant penalizing successful
candidates for no fault of theirs held Vice
Chancellor Committed great error of lawas such decision not only arbitrary but
unjustified
impugned
order
and
consequential
Notification
Quashednecessary direction issued.

Held Para 36

Thus,
the
Vice-Chancellor
of
the
University failed to address himself to
the correct issue that was required to be
decided. He not only committed an error
of fact touching the merit of the decision
but also committed an error of law as the
decision taken by him is not only
arbitrary and unjustified but has been
taken without application of mind to any
of the relevant consideration. He could
not have taken such a drastic action as
cancellation of the entire examination
and even according to the Five Member
Committee
this
would
have
meant
penalizing the candidates for no fault of
theirs.
Case law discussed:
AIR 2006 SC 2571, 2009 (3) ADJ 166, (2007)
6 SCC 382, (2003) 2 SCC 673, (2009) 1 SCC
59, (2005) 13 SCC 744, (2009) 9 SCC 599,
(2005) 3 SCC 241, (2006) 3 SCC 208, 2007
AIR SCW 4884, AIR 2009 SC 2975, (2006) 11
SCC 67, 2009 (6) SCC 171, 2008 AIR SCW
8194, (2003) 2 SCC 673, 2006 (3) ESC 2041.

## Text

_Characters 0–39,399 of 59,868. This is a partial read: ask again with offset=39399 for what follows._

2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
501
Sector
Corporations
in
U.P.
The
petitioners were fully aware of the
decision of the State Government and
have not denied that they had knowledge
of the Government Orders dated 5.2.1986,
25.7.2002 and thereafter 30.7.2007 passed
by the State Government declining the
request of the Corporations to increase the
age of retirement. The petitioners misled
the Court in obtaining the interim order
and have taken advantage of their own
wrong. The petitioners are, therefore, not
entitled to any equitable consideration and
are not entitled to keep the benefits drawn
under the interim orders of the Court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2010

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 23997 of 2010

Dr. Anurag Kumar Tiwari and others

 ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri P.N. Saxena
Sri Girijesh Kumar Tripathi
Sri Kamal Kumar Singh

Counsel for Respondents:
Sri V.K. Singh
Sri K.S. Chauhan
Sri Hem Pratap Singh
Sri S.S. Tiwari
A.S.G.I.

Constitution
of
India,
Art-226Cancellation
of
whole
entrance
examination for MD/MS screening testText held on 18.02.2010-result declared
on 19.02.2010 on certain complaints two
members
committee
found
certain
irregularities in marking the answer
sheets-canceled
result
declares
on
1.4.10-even five members committee
found the re-evaluation marking as same
of scanner cancellation of entire exam by
Vice Chancellor.Without application of
mind would meant penalizing successful
candidates for no fault of theirs held Vice
Chancellor Committed great error of lawas such decision not only arbitrary but
unjustified
impugned
order
and
consequential
Notification
Quashednecessary direction issued.

Held Para 36

Thus,
the
Vice-Chancellor
of
the
University failed to address himself to
the correct issue that was required to be
decided. He not only committed an error
of fact touching the merit of the decision
but also committed an error of law as the
decision taken by him is not only
arbitrary and unjustified but has been
taken without application of mind to any
of the relevant consideration. He could
not have taken such a drastic action as
cancellation of the entire examination
and even according to the Five Member
Committee
this
would
have
meant
penalizing the candidates for no fault of
theirs.
Case law discussed:
AIR 2006 SC 2571, 2009 (3) ADJ 166, (2007)
6 SCC 382, (2003) 2 SCC 673, (2009) 1 SCC
59, (2005) 13 SCC 744, (2009) 9 SCC 599,
(2005) 3 SCC 241, (2006) 3 SCC 208, 2007
AIR SCW 4884, AIR 2009 SC 2975, (2006) 11
SCC 67, 2009 (6) SCC 171, 2008 AIR SCW
8194, (2003) 2 SCC 673, 2006 (3) ESC 2041.

(Delivered by Hon'ble Dilip Gupta, J.)

1. Thirty six out of the fifty
candidates who had appeared at the
MD/MS Merit Screening Test-2010 for
Institutional candidates conducted by the
Institute of Medical Sciences, Banaras
Hindu University, Varanasi (hereinafter
referred to as the 'Institute') have sought
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the quashing of the order dated 6th April,
2010 passed by the Vice-Chancellor of
the University as also the consequential
notification dated 13th April, 2010 issued
by the Institute for cancelling the Merit
Screening Test held on 10th February,
2010 and for holding of a fresh 'Merit
Screening
Test'
for
Institutional
candidates on 26th May, 2010. The
petitioners have also sought a direction
upon the respondents to hold the
counselling
of
the
petitioners
for
admission to the MD/MS course as per
the merit list declared on 19th February,
2010 on the basis of the Merit Screening
Test held on 10th February, 2010.

2. The Institute awards degree of
MD/MS in several disciplines/subjects
and admission to these courses is made
through an All India Test but a separate
test called 'Merit Screening Test' is
conducted
by
the
Institute
for
Institutional/Internal
Candidates
who
have
passed
the
Final
Professional
Examination from the Institute.

3. There were 134 seats available for
the MD/MS Course in the Institute for the
Academic Year 2010, and the breakup of
the seats is as follows:-

(i) DGHS Quota : 67 Seats (i.e. 50%
of the total intake)

(ii) Institutional Quota: 43 Seats
(50% of the MBBS intake)

(iii) All India Entrance Test Quota :
24 seats

4. The Merit Screening Test for
admission against the 43 Institutional
seats was held by the Institute on 10th
February, 2010 and the All India Entrance
Test for the 24 All India Entrance Test
Quota seats was held on 21st February,
2010. For the purpose of conducting the
Merit
Screening
Test
for
the
Institutional/Internal candidates, the ViceChancellor of the University, by the order
dated 9th November, 2009, appointed
Professor L.D. Mishra, Department of
Anesthesiology, as the Professor InCharge
of
the
MD/MS
Entrance
Examination-2010, while Professor S.K.
Gupta, Department of General Surgery,
was appointed as Co-Incharge of the
MD/MS Entrance Examination-2010. A
Co-ordination
Committee
was
also
constituted for conducting the aforesaid
MD/MS Entrance Examination-2010 and
in its meeting held on 12th November,
2009, the Co-ordination Committee at
Item No. 9 resolved that the evaluation of
OMR Sheets, preparation of result sheets
and its pasting on the University Website
will be done with the help of the
Computer Centre of the University. The
schedule of the MD/MS Test
for
Institutional
candidates
was
also
discussed and it was resolved that as per
the procedure practiced last year, the date
of Screening Test will be 14th February,
2010 and the date of result on website will
be 3rd week of March, 2010. Along with
the application form provided to the
candidates, Information Leaflet about the
Merit Screening Test-2010 for MD/MS
admission to Institutional candidates was
also provided to the candidates and the
relevant information contained in the
leaflet is as follows:-

"1.
Eligibility:
(i)
Internal
candidates
who
have
passed
Final
Professional MBBS Examination from
Institute of Medical Sciences, BHU in
December,
2008
and Supplementary
Examination in April, 2009 are eligible.
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
503
(ii) The Completed one year Compulsory
rotating Internship by 30th April, 2010.
.................

.3. Evaluation, Result & Selection:
(i) There will be only one test paper
common to all the subjects. The test
paper will consist of 200 objective
questions from the subject taught in
MBBS. 1 mark will be awarded for
each correct answer. The qualifying
marks shall be 50% of the aggregate for
general candidates and 40% for SC/ST
candidates.

(ii) Selection will be made on the
basis of the merit index prepared
according to the guidelines provided by
the
Institute/University
for
MD/MS
selection-2010.
Final
Merit
Index=
aggregate % of marks obtained in all the
professional examinations+ (1.5 x number
of distinctions)-(1.5 x number attempts) +
% of marks obtained in the Merit
Screening Test-2010.

(iii) Notwithstanding anything to
the contrary contained anywhere in the
ordinances
of
the
University,
no
scrutiny/revaluation of the answer
sheet shall be allowed on any ground.

(iv)
Roll
number
of
qualified
candidates will be displayed on the
institute Notice board.

(v) Selected candidates will have to
appear before the admission committee
for counselling. In case of equal merit
index
the
inter-se
ranking
of
the
candidates should be determined in the
following order.

(vi) In case of equal marks the merit
shall be decided on the basis of the
aggregate
of
all
the
Professional
Examinations
of
MBBS.
Hence,
candidates should clearly and correctly
full up the marks obtained and the total
marks of all the professional MBBS
Examinations
in
item
11
of
the
application form (to be verified at the
time of counselling). Otherwise any claim
for correctness of inter-se merit shall not
be entertained.

(vii) If the marks at the above also
happens to be the same, the date of birth
would be the basis i.e. the candidate
senior in the age would rank higher."
(emphasis supplied)

5. Fifty internal candidates appeared
at the Merit Screening Test for MD/MS
course-2010 which was held on 10th
February, 2010 and the result of the Merit
Screening Test for internal candidates was
declared on 19th February, 2010 after
manual checking of the OMR Sheets.
Two candidates namely Dr. Rohit Kumar
and Dr. Arpit Jain filed applications under
the Right to Information Act, on 23rd
February, 2010 demanding their OMR
Sheets and Answer Keys as well as the
OMR sheets of the whole batch. Dr. R.
Bharadwaj also moved an application on
9th March, 2010 under the Right to
Information Act with a similar prayer.
This request was denied but the Two
Member Committee constituted by the
Vice-Chancellor
of
the
University
consisting of two Professors took a
decision to re-check the OMR sheets of
these three candidates and on manual
checking found that in one OMR sheet a
major error had occurred because the
candidate had actually obtained 135
marks as against 108 marks calculated
earlier, but the marks in the other two
OMR Sheets remained unchanged. The
Committee brought this fact to the notice
504 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of the Director of the Institute and sought
his approval for rechecking all the OMR
Sheets by the Computer Centre through a
Scanner. The Director gave his approval
but also advised for a fresh manual
checking of all the OMR Sheets.
Subsequently, manual rechecking of all
the OMR Sheets was done by the Two
Member Committee and a few more
mistakes were detected. The rechecking
through the scanner was also done on 1st
April, 2010 and the revised merit list of
the Merit Screening Test was put up on
the notice board in which there was a
change in the marks of 7 out of the 50
candidates.

6. The declaration of the revised
result on 1st April, 2010 led to the filing
of a representation by ten candidates
before
the
Vice-Chancellor
of
the
University on 3rd April, 2010 with a
prayer that the counselling should be done
on the basis of the result earlier declared
on 19th February, 2010 and not on the
basis of the result subsequently declared.

7. On 4th April, 2010, the ViceChancellor of the University constituted a
Five Member Committee consisting of the
Director of the Institute, the Dean Faculty
of Medicine, Controller of Examinations
and the Deputy Registrar to inquire into
the
complaints
made
against
the
subsequent revision of the examination
result and the Committee was asked to
submit its report within three days. This
Five Member Committee, in turn, asked
the Two Professors who had conducted
the Merit Screening Test to submit a
report. The Two Member Committee then
submitted a report dated 5th April, 2010
and it will be useful to reproduce the
entire report which is as follows:-

"The Rector

Date: 05.04.2010
Banaras Hindu University.
Re: MD/MS Screening Test 2010 for
institutional candidates

Respected Sir,

This is with reference to our meeting
on 4th April, 2010 (Sunday) in your office
(Holkar Bhawan) regarding the rescrutiny
of the answer sheets of the MD/MS 2010
screening test for institutional candidates
and putting up of the revised computer
checked merit list. As directed by you we
are herewith presenting to you the
circumstance and the sequence of events
leading to the above.

1. The MD/MS screening test 2010
for institutional candidate (Total 50
candidate) was held on 10th February,
2010, and the results were put up on the
notice board on 19th February, 2010 after
manual checking of the OMR (answer)
sheets. The checking had to be done
manually because (a) both the scanning
machines (one in PMT Cell and other
in the Controller's Office) were nonfunctional and despite our best efforts
we could not get either of them rectified
and (b) There was immense pressure
upon us to declare the results before
the BHU All India MD/MS Entrance
Test scheduled on February 21, 2010. In
the exam in question, there were 200
questions with one mark for each correct
answer. There was no negative marking.
(copy of information leaflet enclosed).

2. The BHU All India MD/MS
Entrance Test was held on February 21,
2010 for which 3874 candidate had
applied. The result was declared on
February 25th, 2010 after scanning of the
OMR (answer) sheets and computing of
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
505
the results in the Computer Centre of
BHU. This was possible because of our
continued efforts, we could get one of the
scanning machines repaired and made
functional. There were 200 questions with
four marks for each correct answer and
minus one mark for each incorrect answer
(copy of information leaflet enclosed).

3. Three institutional candidates
submitted separate applications under RTI
Act to the Dy. Registrar (Admin.1) &
CAPIO dated 23.2.2010 and 9.3.2010,
which were forwarded to us on 17.3.2010
by Asstt. Registrar & CPIO, IMS. Two of
these candidates wanted their OMR sheets
(Answer sheets) and answer key and copy
of the OMR sheets of the whole batch.
We then talked to the Dy. Registrar
(Admin.1) & CAPIO on the phone. He
told us that OMR sheets have never been
given in the past but he also said that we
should talk to Dr. K.P. Upadhyay,
Controller of Examinations regarding this.
We then talked to Dr. Upadhyay and he
told us that they had to provide the
question booklet and answer key of one of
the university entrance examination to
one student under RTI Act some time ago
based on a precedence wherein a
candidate was provided the question
booklet and answer key of the BHU
PMT test on the directive of the
Central
Information
Commissioner
Mr. Shailesh Gandhi. Based on the
above inputs, we denied the request of all
the candidates citing the relevant clause
mentioned in the information booklet for
candidates for MD/MS 2010 Entrance
Test to the same effect.

4. We, however, realized that if the
above candidates appealed to the
Central Information Commission or
went to Court, we might be forced to
provide their OMR sheets and the
answer key to the Court or its
representative/candidate.

5. One of the institutional candidates
who had requested for the OMR sheet met
us and stated that he was extremely
disappointed with the results of the said
examination as he had scored more marks
than many of his batch mates in the All
India PGME as well as in the PG entrance
exam of AIIMS, New Delhi.

6.
Meanwhile
we
got
another
application dated 26th March, 2010 from
Shreyas Pandey (who had not qualified in
the MD/MS Screening test 2010) under
RTI requesting for copy of his OMR
sheet, question booklet, answer key and
copies of OMR sheets of the whole batch
stating that he was not satisfied with his
result.

7. Based on 4, 5 and 6 above, we
decided that it was worth rechecking the
OMR (answer sheets once again because
the first time we had checked these sheets
manually and had realized that manual
checking
was
very
tedious,
time
consuming and cumbersome and thereby
suspecting that mistake might have been
made. On manual rechecking of the 3
OMR sheets, we found a major error in
the total marks of one of the candidates.
In the rechecking he got 135 marks
instead of 108 marks that he had been
given earlier. The marks of the other 2
candidates were unchanged.

8. This matter was brought to the
notice of our Director and we told him
that in the interest of fair-play and
justice we should get all the OMR
(Answer)
sheets
rechecked
by
the
Computer Centre. We also believed that
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
since the Counseling had not yet been
held results had to be re-declared when
it was found that an error had occurred
earlier. More recently, the CPMT
results (combined entrance exam for
entrance in the U.P. Medical Colleges)
conducted
by
VBS
Purvanchal
University also had to be redeclared
because of errors in the initial results.
The Director gave his approval for
rechecking by the Computer Centre, but
at the same time asked us to check all the
OMR (Answer) sheets manually before
going to the Computer Centre.

9. On manual rechecking a few more
mistakes were detected in the results
which
reinforced
the
need
of
a
computerized
checking
to
prevent
hardship to affected students as well as
future litigation. The rechecking was
done on 1st April, 2010 using the OMR
scanner and revised merit list of the
screening test was put up on the notice
board on 2nd April, 2010. There was a
change in the marks of 7 out of 50
candidates.

We trust, this clarifies the sequence
of events and the circumstances which
made us embark upon this course of
action."

8. The Five Member Committee
thereafter submitted a report dated 5th
April, 2010 to the Vice Chancellor of the
University. It found, on a comparison of
the scores announced on 19th February,
2010 and 1st April, 2010, that there was a
change of scores in the case of seven
candidates. In one case there was a
decrease of three marks while in the case
of the remaining six candidates, the
increase was of one mark each in four
cases, three marks in one case and 27
marks in the case of Dr. Rohit Kumar.
The Committee also compared the scores
contained in the list announced on 1st
April, 2010 with that of the computer
generated list and both the lists tallied and
were in order. The Committee submitted
its report dated 5th April, 2010 to the
Vice-Chancellor of the University with
following 'Analysis and Findings' and
'Conclusion'.

"Analysis and Findings

It may be seen that Professor
Incharges of the MD/MS screening test
had reiterated that no revaluation can be
done in response to the RTI applications
of some of the candidates. However,
without
any
formal
request
they
themselves decided to reevaluate the
OMR
sheets
without
seeking
permission of the competent authority.
After having done this they obtained the
permission of the Director, IMS, for
computer evaluation of the OMR sheets,
without informing him about the RTI
applications and their disposal. Further,
they were fully aware that the rule 3(iii)
of the test does not permit such
scrutiny/reevaluation. The rule 3(iii) of
the said screening test reads as under:

3(iii) "Notwithstanding anything to
the contrary contained anywhere in the
ordinance
of
the
university
no
scrutiny/reevaluation of the answer sheet
shall be allowed on any ground."
(Annexure I)

In addition, there are several
disturbing facts/questions pertaining to
the whole affair, some of which are
noted below:
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
507

1.
The
candidate
protested
on
25.2.2010 i.e. 6 days after declaration of
the scores on 19.2.2010.

2.
The
Professor
Incharges
themselves evaluated the OMR sheets
together and did not bother to have the
scores verified, preferably, by some
independent persons.

3. They have not bothered to
maintain any record of either the first or
the second manual evaluation.

4.
They
undertook
reevaluation
on
26.2.2010 without any formal request for
the same, and that too after they had
denied the same to RTI applicants in view
of rule 3(iii).

5. It is difficult to understand as to how
one can miss evaluation of 50 questions
of an OMR sheet.

Conclusion

We feel that the entire process of the
test including evaluation of OMR sheets
for admission to various courses in IMS
needs an expert review and possible
lacunae need to be identified and
corrective measures taken.

We are forced to conclude that the
evaluation process of the OMR sheets
was done without due care required in
such a sensitive matter, and in total
contravention of the relevant rules.

There are three possible options with
regard to the MD/MS internal screening
test of 2010 in question.

a) The entire test may be cancelled
and fresh test may be conducted. This
would, however, mean penalizing the
candidates for no fault of theirs and may
arouse genuine protests from them.

b) The result declared on 01.04.2010
may be cancelled since this is in
contravention of the explicit rule 3(iii) of
the said test. However, this would lead to
acceptance of the Mark list which has
been shown to be incorrect on subsequent
computer verification.

c) The mark list declared on
19.02.2010 may be withdrawn and that
declared on 01.04.2010 may be declared
as valid. However, in this case, rule 3(iii)
will stand violated."
(emphasis supplied)

9. The Vice-Chancellor of the
University thereafter passed an order on
6th April, 2010 for cancellation of the
MD/MS Entrance Examination held for
internal candidates and for holding of
fresh examination and the relevant portion
is as follows:-

"After carefully considering the
entire matter, the facts of the case on
record, the report of the committee
constituted to find out the facts of the case
under reference, legal opinion of Senior
Standing
Counsel
at
High
Court,
Allahabad in the matter and having
regard
to
the
sanctity
of
the
examination and the results thereof and
to
the
fact
that
the
fairness,
transparency and adherence to the
established
norms
in
the
entire
examination process are of paramount
importance for the credibility of it and
the slightest of slackness or deviation
from the established norms vitiates the
entire process and raises doubts on the
credibility of the system. I have come to
the conclusion that in order to maintain
508 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the sanctity and the credibility of the
examination, it would be in the fitness
of the things and would be in all
fairness to cancel the entire MD/MS
Entrance Examination 2010, IMS, BHU
(for internal candidates) and to hold it
afresh expeditiously.

The
entire
MD/MS
Entrance
Examination 2010, IMS, BHU (for
internal candidates) is therefore cancelled
and the said examination be conducted
afresh expeditiously only for those
eligible applicants who have applied in
response to the advertisement for the
above said MD/MS Entrance Examination
2010, IMS, BHU (for internal candidates).

All the applicants of the said
examination be informed individually
accordingly.

The Professor Incharges of the said
MD/MS Entrance Examination 2010,
IMS, BHU be not involved in the fresh
conduct of examination.

A circular giving direction to all
bodies
entrusted
with
the
job
of
Examination/Test to ensure the keeping of
Answering Sheets etc. in sealed cover
signed by authorized Committee be
issued.

A Committee of the following is
constituted to suggest curative measures
to eliminate such recurrence in the
examination in future:
1. The Rector

 -Chairman
2. The Director, IMS

 -Member
3. Prof. K.M. Srivastava
Dept. of Geophysics

 -Member
4. Prof. B.N. Singh,
Dept. of Zoology

 -Member

5. The Controller of Examinations
or his nominee

 -Member
6. Prof. I/c, PMT Cell
 -Member
7. The Asstt. Registrar (UET)

-

 Member Secretary

An inquiry committee consisting of
the following is constituted to inquire into
the entire episode and to fix the
responsibility for the lapses:
1. The Rector

 -Chairman
2. Prof. K.M. Srivastava
Dept. of Geophysics

 -Member
3. Prof. B.N. Singh,
Dept. of Zoology

 -Member
4. The Dy. Registrar (RAC)

 Member secretary"
(emphasis supplied)

11. Pursuant to the aforesaid order
passed by the Vice-Chancellor of the
University, a notification dated 13th
April, 2010 was issued by the Institute
for holding the fresh Merit Screening
Test for Institutional candidates for
admission to the MD/MS course on 26th
May, 2010.

12. The petitioners have sought the
quashing of the order dated 6th April,
2010 passed by the Vice-Chancellor of
the University as also the consequential
notification dated 13th April, 2010
issued by the Institute.

13. It needs to be mentioned that
eight candidates who had appeared at
the aforesaid Merit Screening Test on
10th February, 2010, filed an application
in this petition for impleadment as
respondent
Nos.
6
to
13.
This
application was allowed by the order
dated 11th May, 2010. These newly
added respondents have supported the
order of the Vice-Chancellor of the
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
509
University
for
holding
the
fresh
examination on 26th February, 2010
after the cancelling the earlier Merit
Screening Test held on 10th February,
2010.

14. Another application has been
filed
by
these
newly
impleaded
respondents with a prayer that in the
examination
to
be
conducted,
the
respondents should supply the copies of
the OMR sheets with carbon paper so
that the carbon copy can be retained by
the candidates and the result should also
be published on the internet so that they
can compare the marks awarded to them
in
order
to
maintain
complete
transparency
and
sanctity
of
the
examination.

15. I have heard Sri Ashok Khare,
learned Senior Counsel appearing for
the petitioners assisted by Sri Kamal
Kumar Singh. Sri V.K. Singh, learned
Senior Counsel assisted by Sri Hem
Pratap Singh has made submission on
behalf of the respondent-University and
the Institute. Sri P.N. Saxena, learned
Senior Counsel assisted by Sri G.K.
Tripathi has made submissions on
behalf of the candidates subsequently
impleaded as respondents.

16. Sri Ashok Khare, learned
Senior
Counsel
appearing
for
the
petitioners stated at the time of hearing
of the petition that instead of pressing
the second relief claimed by the
petitioners for holding counselling on
the basis of the result declared on 19th
February, 2010, the petitioners would be
satisfied if the counselling is held on the
basis of the result declared on 1st April,
2010 since the petitioners have now
realised that there were mistakes in the
result earlier declared on 19th February,
2010. It is his submission that the ViceChancellor of the University, in the
facts and circumstances of the case,
particularly in view of the report
submitted
by
the
Two
Member
Committee and the Analysis, Findings
and Conclusion of the Five Member
Committee,
was
not
justified
in
cancelling the Merit Screening Test held
on 10th February, 2010. He has
submitted that the mistakes that had
occurred in the manual checking had
been subsequently rectified and no
mistake whatsoever has been pointed
out after the declaration of the result on
the basis of the evaluation done by the
scanner. He further submitted that in
any case, the entire examination could
not have been cancelled in view of the
decision of the Supreme Court in
Inderpreet Singh Kahlon & Ors., Vs.
State of Punjab & Ors., AIR 2006 SC
2571 and the Division Bench of this
Court in State of U.P. & Ors., Vs.
Pawan Kumar Singh & Ors., 2009(3)
ADJ 166.

17. Sri V.K. Singh, learned Senior
Counsel appearing for the respondentUniversity and the Institute, however,
submitted that the Vice-Chancellor of
the University has passed the order after
a thorough examination and careful
consideration
of
the
facts
and
circumstances of the case as well as the
report of the Inquiry Committee in order
to maintain sanctity and credibility of
the Examination and this decision of the
Vice-Chancellor of the University does
not call for any interference by this
Court
under
Article
226
of
the
Constitution. It is his submission that
even if two views are possible, then the
view taken by the Authority should not
510 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
be interfered with by the Court while
exercising powers of judicial review in
view of the decisions of the Supreme
Court in S. Sethuraman Vs. R.
Venkatraman & Anr., (2007) 6 SCC
382 and Onkar Lal Bajaj & Ors., Vs.
Union of India & Anr., (2003) 2 SCC
673. He further submitted that purity in
examination has to be maintained and
for this he has placed reliance on the
decisions of the Supreme Court in
Director (Studies), Dr. Ambedkar
Institute
of
Hotel
Management
Nutrition & Catering Technology,
Chandigarh & Ors., Vs. Vaibhav
Singh Chauhan (2009) 1 SCC 59 and
in
Manish
Ujwal
&
Ors.,
Vs.
Maharishi Dayanand (2005) 13 SCC
744. It is also his submission that an
Examiner has to be very careful and
cautious in the evaluation of the answer
sheets to maintain the faith in the
examination and so the Vice-Chancellor
of the University was justified in
cancelling the examination. In support
of this contention he has relied upon the
decision of the Supreme Court in Sahiti
& Ors., Vs. Chancellor, Dr. N.T.R.
University of Health Sciences & Ors.,
(2009) 9 SCC 599.

18. He further pointed out that
when specific directions had been
issued by the Co-ordination Committee
on 12th November, 2009 that the
evaluation of the OMR sheets and
preparation of the result sheet should be
done with the help of the Computer
Centre of the University, there was no
occasion for the two Professors who
held the MD/MS Merit Screening Test
to check the OMR sheets manually and
declare the result in haste on 19th
February, 2010 even though the Coordination Committee had taken a
decision to declare the result on the
website by the third week of March,
2010. According to him, the Two
Member Committee could not have
taken a decision to recheck the answers
after the result was declared on 19th
February, 2010 and that too without
obtaining any order from the Competent
Authority in view of Clause 3(iii) of the
Rules supplied with the Information
Leaflet
which
provides
that
notwithstanding anything to the contrary
contained anywhere in the Ordinances
of
the
University,
no
scrutiny/reevaluation of the answer sheet shall be
allowed on any ground.

19. Sri P.N. Saxena, learned Senior
Counsel
appearing
for
the
newly
impleaded students has adopted the
submissions advanced by the learned
Senior Counsel for the University and
has submitted that in the facts and
circumstances of the case, the order
passed by the Vice-Chancellor of the
University
for
cancelling
the
examination is justified and does not
call for any interference by the Court
under Article 226 of the Constitution.

I have considered the submissions
advanced by learned Senior Counsel for
the parties.

20. There can be no dispute that
purity and fairness in examination is of
paramount importance and has to be
maintained at all costs and that an
examiner has to be careful and cautious
while evaluating the answer books so
that no doubts are cast on the credibility
of the examination.

21. In the present case, it is not in
dispute that the Merit Screening Test for
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
511
internal candidates of the Institute
which was held on 10th February, 2010
consisted of 200 objective questions set
out in the OMR Sheet with four answers
to each question and the candidates
were required to select the most
appropriate answer. One mark was to be
awarded for the correct answer and
there was no negative marking. The
qualifying
marks
for
the
General
Category Candidate was 50% while that
for the Reserved Category Candidate
was 40%. Fifty internal candidates
appeared at the said MD/MS Merit
Screening Test-2010 and the result for
admission to the 43 seats was declared
on 19th February, 2010. The Five
Member Committee considered the
report submitted by the Two Member
Committee and also examined the
record. It found that there was a change
in the marks of seven candidates in the
two results declared on 19th February,
2010 and 1st April, 2010 and what is
important is that it also found that the
scores contained in the list announced
on 1st April, 2010 and the scanner
generated list were identical and in
order.

22. A perusal of the Analysis and
Findings
of
the
Five
Member
Committee shows that it felt highly
disturbed by the fact that when Clause
3(iii) of the Rule did not permit
scrutiny/re-evaluation of the answer
sheets, the Two Member Committee,
which conducted the Merit Screening
Test, should not have re-evaluated the
OMR
Sheets
without
seeking
permission of the Competent Authority.
The Five Member Committee also noted
the following additional disturbing facts
pertaining to the whole affair:-

"1. The candidate protested on
25.2.2010 i.e. 6 days after declaration of
the scores on 19.2.2010.

2.
The
Professor
Incharges
themselves evaluated the OMR sheets
together and did not bother to have the
scores verified, preferably, by some
independent persons.

3. They have not bothered to
maintain any record of either the first or
the second manual evaluation.

4. They undertook reevaluation on
26.2.2010 without any formal request
for the same, and that too after they had
denied the same to RTI applicants in
view of rule 3(iii).

5. It is difficult to understand as to
how one can miss evaluation of 50
questions of an OMR sheet."

23. After having noted the
aforesaid, the Five Member Committee
concluded that the evaluation process of
the OMR sheets was done without due
care required in such a sensitive matter
and was also in total contravention of
the relevant Rules. It is for this reason
that it gave three options to the ViceChancellor of the University namely:-

"a) The entire test may be cancelled
and fresh test may be conducted. This
would, however, mean penalizing the
candidates for no fault of theirs and may
arouse genuine protests from them.

b)
The
result
declared
on
01.04.2010 may be cancelled since this
is in contravention of the explicit rule
3(iii) of the said test. However, this
would lead to acceptance of the Mark
list which has been shown to be
incorrect
on
subsequent
computer
verification.
512 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

c) The mark list declared on
19.02.2010 may be withdrawn and that
declared on 01.04.2010 may be declared
as valid. However, in this case, rule
3(iii) will stand violated."

24. The Vice-Chancellor of the
University in his order dated 6th April,
2010
observed
that
fairness,
transparency and adherence to the
established
norms
in
the
entire
examination process are of paramount
importance for its credibility and any
slackness
or
deviation
from
the
established norms vitiates the entire
process and raises doubts in the
credibility of the system. He, therefore,
in order to maintain the sanctity and the
credibility of the examination, decided
to cancel the entire MD/MS Entrance
Examination 2010 held for the internal
candidates and ordered for holding of a
fresh examination expeditiously. This
order of the Vice-Chancellor of the
University
has,
therefore,
to
be
examined in the light of the conclusion
arrived
at
by
the
Five
Member
Committee that the "evaluation process
of the OMR sheets was done without
due care required in such a sensitive
matter and in total contravention of the
relevant Rules".

25. However, before proceeding to
do so, it is necessary at this stage to
consider the scope of judicial review in
such matters. The Supreme Court has
repeatedly emphasized that an Authority
has to pose to itself a correct question so
as to arrive at a correct finding and a
wrong question may lead to a wrong
answer. An error of fact touching the
merit of the decision vis-a-vis the
decision making process will also come
within the purview of the power of
judicial review, apart from other factors
like,
illegality,
irrationality
and
procedural impropriety. The concept of
error of law includes the giving of
reasons
that
are
bad
in
law
or
inconsistent,
unintelligible
or
substantially inadequate and that all
actions of public functionary must be
guided by reasons and not by whims or
caprice of the persons entrusted with the
task.

26. In this connection, reference
needs to be made to the decision of the
Supreme Court in Cholan Roadways
Ltd. Vs. G. Thirugnanasambandam,
reported in (2005) 3 SCC 241, in which
the Supreme Court pointed out:

"It is now well settled that a
quasi-judicial authority must pose
unto itself a correct question so as to
arrive at a correct finding of fact. A
wrong question posed leads to a
wrong answer...............

Errors of fact can also be a subjectmatter of judicial review. (See E. v.
Secy. of State for the Home Deptt.)
Reference in this connection may also
be made to an interesting article by Paul
P. Craig, Q.C. titled "Judicial Review,
Appeal and Factual Error" published in
2004 Public Law, p.788."

(emphasis supplied)

In S.N. Chandrashekar v. State of
Karnataka reported in (2006) 3 SCC
208, the Supreme Court also observed:

"It is now well known that the
concept of error of law includes the
giving of reasons that are bad in law
or (where there is a duty to give
reason) inconsistent, unintelligible or
substantially
inadequate.
(See
de
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
513
Smith's
Judicial
Review
of
Administrative Action, 5th Edn., p.
286.)

The Authority, therefore, posed
unto itself a wrong question. What,
therefore,
was
necessary
to
be
considered by BDA was whether the
ingredients contained in Section 14-A of
the Act were fulfilled and whether the
requirements of the proviso appended
thereto are satisfied. If the same had not
been satisfied, the requirements of the
law must be held to have not been
satisfied. If there had been no proper
application of mind as regards the
requirements of law, the State and the
Planning Authority must be held to have
misdirected themselves in law which
would vitiate the impugned judgment."
(emphasis supplied)
The Supreme Court in State of Kerala
& Ors., Vs. K.Prasad & Anr. 2007
AIR SCW 4884 held as follows:-

"This Court in Shrilekha Vidyarthi
(Kumari) Vs. State of U.P. (1991) 1
SCC 212 held that every State action, in
order to survive, must not be susceptible
to the vice of arbitrariness which is the
crux of Article 14 and basic to the rule
of law, the system which governs us,
arbitrariness being the negation of the
rule of law. Non-arbitrariness, being a
necessary concomitant of the rule of
law, it is imperative that all actions of
every public functionary in whatever
sphere must be guided by reason and
not
humour,
whim,
caprice
or
personal predilections of the persons
entrusted with the task on behalf of
the State and exercise of all powers
must be for public good instead of
being an abuse of power."
(emphasis supplied)

In Uttamrao Shivdas Jankar Vs.
Ranjitsinh
Vijaysinh
Mohite-Patil
reported in AIR 2009 SC 2975 the
Supreme again examined the scope of
judicial review and observed:-

"Even in applying the standard
of judicial review, we are of the
opinion that the scope thereof having
been expanded in recent times, viz.,
other
than,
(i)
illegality,
(ii)
irrationality
and
(iii)
procedural
impropriety, an error of fact touching
the merit of the decision vis-a-vis the
decision making process would also
come within the purview of the power
of judicial review."

(emphasis supplied)

27. In this connection reference
can also be made to the decisions of the
Supreme Court in Indian Airlines Ltd.
Vs. Prabha D. Kanan (2006) 11 SCC
67
and
Meerut
Development
Authority
Vs.
Association
of
Management Studies & Anr. 2009 (6)
SCC 171.

28. It is in the light of the
aforesaid
principles
stated
by
the
Supreme Court that the order passed by
the Vice-Chancellor of the University
has to be examined.

29.