# Kumar Sambhav Pal v. Union of India & Anr

- **Citation:** (2021) 6 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Writ-C No. 27636 of 2020
- **Bench:** Mahesh Chandra Tripathi, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-sambhav-pal-v-union-of-india-anr-47099
- **Pages:** 7

## Headnote

Constitution
of
India-
Article
226
-
Scrutiny / Re- evaluation of answer sheet
- power under Article 226 may only be
invoked in rare & exceptional cases where
the error or illegality is patent & manifest
i.e.
where
material
error
has
been
committed - Onus and burden lies solely
on the petitioner to prima facie establish
that there has been an apparent and
evident
mistake
in
the
process
of
evaluation - evaluation undertaken by the
examining bodies should not be viewed
with suspicion unless it is prima facie
established that it was not fair or
transparent - Such challenge may only be
accepted when it is well substantiated &
rest on a strong pedestal which is likely to
succeed (Para 8, 11)

Petitioner appeared in NEET (UG) 2020 - after
examination, answer key uploaded on the
official website - petitioner did not challenge the
same- Testing agency uploaded scanned image
of OMR sheets of all the candidates - petitioner
expected to score more than 600 marks - but
petitioner secured just 146 out of 720 marks -
petition filed for direction to the respondents to
produce his OMR sheet - Held - petitioner
neither denied his signatures nor his roll number
in his handwriting on the OMR uploaded on the
official website - entire claim set up on false
ground (Para 8, 11)

Dismissed. (E-4)

List of Cases cited:

## Text

6 All. Kumar Sambhav Pal Vs. Union of India & Anr.
367
----------
(2021)06ILR A367
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Writ-C No. 27636 of 2020

Kumar Sambhav Pal ...Petitioner
Versus
Union of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Anand Kapoor Pandey

Counsel for the Respondents:
A.S.G.I., Sri Dhananjay Awasthi, Sri Hridai
Narain Pandey, Sri Purnendu Kumar Singh

Constitution
of
India-
Article
226
-
Scrutiny / Re- evaluation of answer sheet
- power under Article 226 may only be
invoked in rare & exceptional cases where
the error or illegality is patent & manifest
i.e.
where
material
error
has
been
committed - Onus and burden lies solely
on the petitioner to prima facie establish
that there has been an apparent and
evident
mistake
in
the
process
of
evaluation - evaluation undertaken by the
examining bodies should not be viewed
with suspicion unless it is prima facie
established that it was not fair or
transparent - Such challenge may only be
accepted when it is well substantiated &
rest on a strong pedestal which is likely to
succeed (Para 8, 11)

Petitioner appeared in NEET (UG) 2020 - after
examination, answer key uploaded on the
official website - petitioner did not challenge the
same- Testing agency uploaded scanned image
of OMR sheets of all the candidates - petitioner
expected to score more than 600 marks - but
petitioner secured just 146 out of 720 marks -
petition filed for direction to the respondents to
produce his OMR sheet - Held - petitioner
neither denied his signatures nor his roll number
in his handwriting on the OMR uploaded on the
official website - entire claim set up on false
ground (Para 8, 11)

Dismissed. (E-4)

List of Cases cited:

1. Manoj Kumar Tiwari Vs U.O.I. & ors. Writ C
No.19615 of 2020 dt 8.12.2020

2. Abdul Azeez Vs U.O.I. Writ Petition (C)
No.11495 of 2020 (S) dt 30.6.2020

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J. & Hon'ble Sanjay Kumar Pachori, J.)

1. Heard Shri A.K. Pandey, learned
counsel for the petitioner; Shri Purnendra
Kumar Singh, learned counsel for the
Union of India and Shri Dhananjay
Awasthi,
learned
counsel
for
the
respondent no.2/Senior Director, National
Testing Agency, Ministry of Education,
Government of India, New Delhi.

2. The present writ petition is
preferred seeking following reliefs:-

"i. To issue a writ, order or direction
in the nature of mandamus directing the
respondent No.2 to reserve a seat for the
petitioner having Roll No.4402006652
(OBC-(NCL) Category Candidate) in ongoing conselling of National Eligibilitycum-Entrance Test (Under Graduate)-2020
(in short "NEET (UG)-2020" conducted by
the respondents;

ii. To issue a writ, order or direction
in the nature of mandamus directing the
respondents to consider the candidature of
the petitioner having Roll No.4402006652
(OBC-(NCL) Category Candidate) in ongoing counseling of National Eligibilitycum-Entrance Test (Under Graduate)-2020
368 INDIAN LAW REPORTS ALLAHABAD SERIES
(in short NEET (UG)-2020" conducted by
the respondents.

iii. To issue a writ, order or direction
in the nature of mandamus directing the
respondents to produce the OMR Sheet
pertaining to the petitioner before this
Hon'ble Court."

3. Learned counsel for the petitioner
submits that the petitioner belongs to Other
Backward Class Category. He appeared in
National
Eligibility-cum-Entrance
Test
(Under Graduate)-20201 on 13.9.2020. After
conducting the aforesaid examination, the
National Testing Agency (NTA) uploaded
the answer key for different series of booklets
on 26.09.2020. The petitioner did not
challenge his answer key uploaded by the
NTA. Thereafter, the NTA released the OMR
sheets of NEET (UG)-2020 on 05.10.2020
and also uploaded the scanned image of
OMR sheets of all the candidates. Finally, the
NTA declared the result on 16.10.2020 and
on the same day, the score cards of all
candidates
were
also
uploaded.
After
declaration of the final result, the petitioner
came to know that there is a huge difference
between the marks as obtained by him and
the marks, which were expected to be secured
by the petitioner. As per his own calculation
based on the answer keys, the petitioner
expected to score more than 600 marks out of
720. It is claimed that due to nondownloading the scanned image of the OMR
sheet uploaded on the official website of
NTA, the petitioner could not participate in
the counselling and he was surprised to know
that he had secured 146 marks out of 720.
This situation has impelled the petitioner to
approach before this Court under Article 226
of Constitution of India.

4. On the other hand, Shri Dhananjay
Awasthi,
learned
counsel
for
the
respondent no.2 has placed the categorical
instruction and the same is taken on record.
In the instructions in question, it has been
stated that the Ministry of Human Resource
Development (MHRD), now renamed as
Ministry of Education, Government of
India (GOI), has established National
Testing Agency (NTA) as an independent,
autonomous and self-sustained premier
testing organisation registered under the
Societies Registration Act, 1860 to conduct
efficient, transparent and international
standard test in order to access the
competency of candidates for admission to
premier higher education institutions; to
undertake
research
on
educational,
professional and testing systems to identify
gaps in the knowledge systems and taking
steps for bridging them; to identify experts
and institutions in setting examination
questions and to produce and disseminate
information and research on education and
professional development standards.

5. Section 14 of the National Medical
Commission
Act,
2019
provides
for
holding of a common and uniform National
Eligibility-cum-Entrance
Test
for
admission to the undergraduate medical
courses in all medical institutions including
those governed under any other law. Thus,
the admission to MBBS course in AIIMS,
New Delhi, JIPMER and all AIIMS like
Institutions is also being made through
NEET. The eligibility criteria applicable to
appear in NEET (UG) shall also be
applicable to the candidates desirous to
take admission to INIs like AIIMS. The
NTA has been mandated by the Ministry of
Health and Family Welfare to conduct the
National Eligibility Cum Entrance Test
(UG) throughout the country since the year
2019. The NEET (UG) - 2020) has been
conducted on 13.9.2020 in Pen and Paper
mode as an uniform entrance examination
for admission to MBBS/BDS Courses and
6 All. Kumar Sambhav Pal Vs. Union of India & Anr.
369
other undergraduate medical courses in
approved/recognized
Medical/Dental
&
other Colleges/ Institutes in India. The
norms/procedure/timeliness followed in the
conduct of this examination are as per
Section 10-D of the Indian Medical
Council Act, 1956 and relevant Regulations
notified thereunder by Medical Council of
India (MCI) from time to time for
regulating graduate medical education.

6. The NEET (UG) 2020 has been
conducted by NTA on 13.09.2020 and
14.10.2020 (only for COVID-19 affected
candidates). The combined results of the
examinations was declared on 16.10.2020
on the official website of NTA through
public notice dated 17.10.2020. The result
of all the candidates alongwith their All
India Rank (AIR) has been handed over to
the office of Director General of Health
Services (DGHS), Ministry of Health &
Family
Welfare
on
26.10.2020
for
counselling/admission. The pattern of the
examination has also been provided under
Clause 3.2 and 3.3 at page 13 of the
Information Bulletin of NEET (UG) 2020,
wherein total 180 number of multiple
choice questions with four options and
single correct answer, were given and the
aggregate marks were 720. Each question
carries four marks and for each correct
answer/best option, the candidate will get
four marks. For each incorrect answer, one
mark will be deducted from the total score.
To answer a question, the candidate has to
find
for
each
question
the
correct
answer/best option. The NEET (UG) 2020
is a Pen & Paper based test to be answered
on the specially designed machine gradable
sheet using Ball Point Pen.

7. It is pertinent to note that the
'specially designed machine gradable sheet'
is called 'Answer Sheet', which is popularly
known as the Optical Mark Recognition
(OMR) sheet. The candidate records his/her
response in it by darkening only one circle
for
each
question/entry.
The
NTA
displayed the OMR sheets of all candidates
including the petitioner with effect from
05.10.2020
onwards
and
no
change/modification
has
been
made
thereafter. The results have been declared
on the basis of the responses marked in the
OMR/Answer Sheet, which was also
provided to all the candidates including the
petitioner. As per the calculation sheet of
the candidate/petitioner, which has been
generated from the system on the basis of
the questions attempted by him on his
actual OMR/Answer Sheet, the petitioner
has attempted 154 questions. He has
answered 60 questions correctly and 94
incorrectly. As per the marking scheme of
the examination, 04 marks are awarded for
each correct answer and 01 mark for each
incorrect answer is deducted from the total
score/marks. As such, the petitioner had
secured 146 marks (60x4-94x1) out of the
total marks of 720, as correctly provided in
the score card.

8. In this backdrop, Shri Dhananjay
Awasthi,
learned
counsel
for
the
respondent no.2 has vehemently contended
that in order to achieve optimum level of
accuracy, a detailed procedure is followed
in the finalization of result. He submits that
there are many layers of checks to verify
the identity of the OMR sheet, therefore,
there is hardly any scope or likelihood of
any discrepancy in the online evaluation
system
conducted
by
NTA
as
the
petitioner's OMR sheet has been scanned
and tallied properly. He further makes
submission that at no point of time the
petitioner has denied his signatures nor his
roll number in his handwriting on the OMR
uploaded on the official website of NTA.
370 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, the OMR uploaded on the
official website has been assessed for
declaration of the result being the only
OMR on record, which was submitted by
the petitioner himself. He submits that the
exhaustive procedure is provided and there
is hardly any scope for human involvement
and there is no discrepancy. The entire
claim has been set up on false ground and
the petitioner tried to take undue advantage
over other candidates by claiming himself
that he has secured more than 600 marks
out of 720 but in fact, he has secured only
146 marks as shown in the score card,
which has been uploaded on official
website of the NTA. In support of his
submission, he has also placed reliance on
the judgment dated 8.12.2020 passed by
learned Single Judge of this Court in Writ
C No.19615 of 2020 (Manoj Kumar
Tiwari vs. Union of India and 3 others)2.
The relevant portion of the judgment is
extracted herein under:-

"The petitioner seeks the issuance of a
writ commanding the respondents to
undertake a revaluation of his answer
script submitted in respect of the subject-
"Community and Elementary Education".
The issue itself arises in the backdrop of
the petitioner having participated in an
entrance examination conducted by the
second respondent for granting admission
to its D.EL.E.D. course. Being unsuccessful
in obtaining admission to that course, he
has petitioned this Court for reevaluation
of the answer script in question.

It becomes pertinent to note that prior
to approaching this Court the petitioner
has not obtained a copy of the answer
script from the respondents, a procedure
that could have been adopted and is
permissible in law in light of the law as
declared by the Supreme Court in Central
Board of Secondary Education Vs. Aditya
Bandhopadhya and others3. The Court is
thus left to consider the reliefs claimed in
the petition solely on the basis of the
following
averments
as
made
in
paragraphs 9 to 12 of the writ petition
which read thus:-

"9. That the petitioner has solved
the question paper to the best of his ability
but when the statement of marks awarded
to the petitioner in Sub Code No. 507 he
was shocked.

10. The the petitioner apprehends
that answer book of the subject Community
and Elementary Education on (Subject
Code No. 507) has not been properly
checked/evaluated.

11. That possibility of errors in
calculation of marks, cannot be ruled out,
but
unless
any
direction
to
ensure
rechecking or scrutiny is issued the
Institute may not take any step.

12. That the petitioner has good
academic career, he awarded 199/500 in
Purva
Madhyama, 323/600
in
Uttar
Madhyama,
1199/2200
in
Shashtri
Pariksha and 590/900 in Acharya Pariksha
and in result of D.EL.Ed. Course subject
Nos. 501 to 514 except Code No. 507 he
awarded good marks and he hopes that he
will get more than 28 marks."

The practice of approaching this
Court directly without obtaining copies of
the answer scripts or seeking directions
requiring examining bodies to produce
answer books cannot but be deprecated in
the strongest terms, discouraged and
curbed. The conduct of examinations by
educational authorities cannot be lightly
interfered with unless the petition rests on a
strong foundation and it is at least prima
facie established that there has been an
apparent and evident mistake in the
process of evaluation. The onus and burden
on this aspect lies solely on the petitioner
and is one which must be discharged at the
6 All. Kumar Sambhav Pal Vs. Union of India & Anr.
371
threshold. In order to establish a stark or
glaring mistake in the process of evaluation
it is imperative for the petitioner to
establish from the record that an apparent
illegality has been committed by the
examiner. That cannot possibly be done
unless a copy of the answer script has been
obtained and the petitioner upon a perusal
thereof finds a manifest error or illegality
in the evaluation undertaken. The burden to
prove that a fair evaluation was in fact
undertaken cannot stand shifted or placed
upon the examining body unless this
primary
fact
is
established
by
the
petitioner.
This
essentially
since
the
examining body cannot be commanded to
prove a fact in the negative.

An
evaluation
undertaken
by
examining bodies should not be viewed
with suspicion unless it is prima facie
established that it was not fair or
transparent. Courts must necessarily be
wary of entertaining such challenges unless
it be well substantiated and found to rest on
a strong pedestal which is likely to succeed.
In any case a foray like the present cannot
be entertained simply on the basis of a
stated apprehension or the candidate's own
assessment
of
performance
in
the
examination. A challenge to an evaluation
undertaken by examining bodies, in any
case, on a mere allegation that "possibility
of errors in calculation of marks cannot be
ruled out..." cannot be countenanced. It
must necessarily, for reasons aforenoted,
stand on sounder footing.

More fundamentally the Court takes
notes of the submission of Sri Awasthi who
submits that no provision for reevaluation
exists in terms of which a direction as
claimed by the petitioner may be issued.
While the absence of a provision for
reevaluation may not completely denude
the Court from examining a challenge to an
evaluation process under Article 226 of the
Constitution, its powers may be invoked in
rare and exceptional cases and where the
error or illegality is patent and manifest.
The Court deems it apposite to notice the
following
conclusion
as
ultimately
pronounced in Ran Vijay Singh Vs. State
of U.P.4

30.2. If a statute, Rule or Regulation
governing an examination does not permit
re-evaluation or scrutiny of an answer
sheet (as distinct from prohibiting it) then
the court may permit re-evaluation or
scrutiny only if it is demonstrated very
clearly, without any "inferential process of
reasoning
or
by
a
process
of
rationalisation" and only in rare or
exceptional cases that a material error has
been committed;

The
above
position
was
again
explained in High Court of Tripura v.
Tirtha Sarathi Mukherjee5 with the
Supreme Court observing: -

20. The question however arises
whether even if there is no legal right to
demand re-valuation as of right could there
arise circumstances which leave the Court
in any doubt at all. A grave injustice may
be occasioned to a writ applicant in certain
circumstances. The case may arise where
even though there is no provision for revaluation it turns out that despite giving the
correct answer no marks are awarded. No
doubt this must be confined to a case where
there is no dispute about the correctness of
the answer. Further, if there is any doubt,
the doubt should be resolved in favour of
the examining body rather than in favour of
the candidate. The wide power under
Article 226 may continue to be available
even though there is no provision for revaluation in a situation where a candidate
despite having giving correct answer and
about which there cannot be even the
slightest manner of doubt, he is treated as
having given the wrong answer and
372 INDIAN LAW REPORTS ALLAHABAD SERIES
consequently
the
candidate
is
found
disentitled to any marks.

21. Should the second circumstance be
demonstrated to be present before the writ
court, can the writ court become helpless
despite the vast reservoir of power which it
possesses? It is one thing to say that the
absence of provision for re-valuation will
not enable the candidate to claim the right
of evaluation as a matter of right and
another to say that in no circumstances
whatsoever where there is no provision for
re-valuation will the writ court exercise its
undoubted
constitutional
powers?
We
reiterate that the situation can only be rare
and exceptional."

As
is
evident
from
the
above
exposition of the law on the subject, there
must be a demonstrable illegality in the
evaluation undertaken and only in such
rare and exceptional cases would the Court
be
legally
justified
in
invoking
its
jurisdiction. The petitioner
here
has
miserably failed to meet the tests as evolved
and noticed above.

The writ petition consequently fails
and is dismissed."

9. Hon'ble Supreme Court has also
occasion to consider similar issue and
dismissed the Writ Petition (C) No.11495
of 2020 (S) (Abdul Azeez vs. Union of
India represented by its Secretary,
Ministry
of
Human
Resource
Development, New Delhi and another)6
on 30.6.2020 with following observations:-

"32. Though, the petitioner has filed
an application, not numbered, seeking for a
direction to respondents 5, 6 and 7 -
Ministry of Home Affairs represented by its
Secretary, Ministry of External Affairs
represented by its Secretary, and Ministry
of Civil Aviation represented by its
Secretary, to operate Special Chartered
flights for the students from Qatar and
other
Gulf
Co-operation
countries,
exclusively for the NEET (UG)-2020
aspirants,
for
attending
NEET
examinations scheduled in various cities in
India, it is for the students, who have
registered
their
names
for
NEET
examination,
to
make
necessary
arrangements with the operators. We
cannot
issue
any
directions
to
the
Government or the MCI, as the case may
be. The guidelines issued by the Ministry of
Home Affairs, Government of India, New
Delhi enabling the students to travel are in
vogue from 5.5.2020 onwards. NTA has
fixed the date of NEET (UG-2020)
examination on 26.07.2020. There are no
materials, as to when the students,
intending to take part in NEET(UG) - 2020
examination, have reported the authorities
to permit them to travel to India, to take up
NEET examination. Ministry of External
Affairs, New Delhi has replied thus:

"VBM flights include students and
other compelling cases. Our Missions
would try their best to accommodate Indian
students and OCI students (if they fall
within the MHA SOP guidelines) appearing
in NEET exam."

In the light of the above discussion, we
are of the view that the prayers sought for
by the petitioner in this public interest writ
petition cannot be granted. Writ petition
fails and accordingly, dismissed."

10. The NEET is one of the highest
competitive
examination,
opening
opportunities for students to get into the most
prestigious medical colleges. The NEET
(UG)-2020 examination was smoothly held
amid strict precautions in view of the
COVID-19 pandemic on 13.9.2020 on the
given schedule in a secure and healthy
atmosphere by following all the directions
and advisories sincerely. Due to the COVID-
6 All. Shameem Ahmad Vs. State of U.P.
373
19 pandemic, 85-90 percent of 15.97 lakh
candidates appeared for NEET (UG)-2020
examination. The NTA released the answer
keys of the NEET (UG)-2020 on 26.9.2020
and the aspirants were able to download the
code-wise official NEET (UG)-2020 question
paper with solutions from the NTA official
website and challenge it as well. Admittedly,
the petitioner did not challenge his answer
key uploaded by the NTA on the official
website. Thereafter, the NTA declared the
final result on 16.10.2020 wherein, he had
secured only 146 marks out of 720.

11. In the aforesaid facts and
circumstances, we are of the opinion that the
evaluation undertaken by the examining
bodies should not be viewed with suspicion
unless it is prima facie established that it was
not fair or transparent. Such challenge may
only be accepted unless it be well
substantiated and found to rest on a strong
pedestal which is likely to succeed. In the
present matter, the detailed instruction, as
enumerated above, clearly transpires to the
Court that the entire pleading has been set up
on vague and evasive grounds.

12. We do not find any good ground
to interfere in the present writ petition.

13. Consequently, the writ petition is
dismissed.
----------
(2021)06ILR A373
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Crl. Misc. Bail Application No 452 of 2021

Shameem Ahmad ...Applicant
Versus
State of U.P. ...Opp. Party
Counsel for the Applicant:
Jitendra Singh

Counsel for the Opp. Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860-Sections 306, 511, 109,
506, 504-application-rejection The dispute
of tenancy between the deceased and his
building owner, co-accused was pending
in the Civil Court, this fact is also known
from
the
evidence
collected
by
the
prosecution-The fact mentioned in the
F.I.R. that owner was insisting on paying
the rent due or vacating the house and
when the deceased refused to do so as
usual citing his financially tight condition,
angered owner, abused in anger and said
that pay the rent otherwise leave the
house or die by burning somewhereImmediately
after
this
incident,
the
deceased did not commit the incident of
setting himself on fire, so that it can be
called
an
abatement
to
suicide-The
incident of self immolation occurred after
five days-A journalist is not expected to
dramatize a sensational and horrifying
incident and make news by putting his
actor in pitiable condition in danger- In
this case, from the statement of the F.I.R.
and the statements of the oral witnesses
which have been recorded during the
investigation, prima facie it is established
that the accused tempted the deceased
that if he would try to commit suicide in
front of the Legislative Assembly building,
by making a video of him, he will telecast
the same on television with matter of
misbehaviour of owner with him-After
this the owner will not be able to evict
him out from the house-the investigator
has seized the video camera and film from
the accused, evidence of independent
witness, an electronic engineer- a man
identified as accused was seen recording
the film of the deceased even prior to this
incident of his self burning, Instead of
saving the grievously burning deceased,
the accused kept on filming it till he was
badly
scorched
-The
suicide
was
committed only after the plan suggested