Abhjjit Sen & Ors. v. State of U.P. & Ors.

Judgment

The Judgment of the Court was delivered by TULZAPURKAR; J. Civil Appeal Nos. 4092-4114/83 (Kanpur University & Ors. v. Sarni~ Gapta & Ors.) mid Civil Appeal .Nos. 4068-4091/83 (State of U.P. & Ors. v. Sarnir Gupta & Ors.(') were disposed of by this Court by its Judgment dated September 27, 1983. The instant'appeals by four failed students though connected with the aforesaid appeals and arising out of a common. judgment of the ·Allahabad High Court dated 24·2·!982 could not, for some reasons, be disposed of along wit]} the aforesaid appeals and have been ·assigned to this Bench. ·The defects, that emerged on record .in impiementing and carrying out the 'Multiple Choice Objective Type Test' while holding' a 'Combined Pre-Medical Test' which was done pursuant to the orders issued by the State Government in that behalf under s. 28 of.the U.P. State Universities Act, 197~ by the. Kanpur .

University "in 1982 for giving admission to the 7-Med,ical Colleges in ·the State of Uttar Pradesh for the d983 session, have. been pointed out, elaborately discussed and commented upoil' by this Court in its judgment dated September 27, 1983 and therefore it is unnecessary for us to dilate on those aspects o,f the matter .again while dispesing (I) [1984] 1 S.C.R. 73; SUPRllMli COURT REPORTS U984l I s.c.il. of the instant appeals. Suffice it to say that this Courr has expressed therein a clear and.categorial view that if the 'key-answer'

(i.e. the answer. which the papsr-setter has supplied to the University as the correct answer and which has been fed into the Computer) is shown to be demo~strably wrong. that is to say, such as no reasonable body of men well versed in the particular subjec( would regard it as correct and .if the answer gi~en by a student is correct if regard be had to acknowledged text-books or books which the student was ex· pected to read and consult before appearing for the test it would be unfair to penalise the student for not giving an answer which accords with the 'key-answer' that is to say with an answer which is demons· !rated to be wrong. The contentions raised in the instant appeals will have to be considered within . these parameters indicated in the judgment.. At the outset it may be stated that Civil Appeal No. 4116/83 (filed by Appellant Abhijit Sen) and Civil Appeal No. 4118/83 (filed by Appellant Satyendra Vikram Singh) were not pressed before us and have to be dismissed.

Kumari Sbivani Aggarwal and Kurnari Sunita Khare (the appellants in Civil Appeal No. 4117 &4119of1983) have challenged the University's decision which decision has been upheld ' by tbe Allahabad High Couri) of refusing them admission to the M.B.B S. course in any of the seven Medical Colleges. Learned Counsel appearing for them contended that the 'key-answer' supplied· by the Pa.per: setter to question No. 31 in Zoology Paper (being Alternative No. 2) was wrong or incorrect and th~ answer given by both the appellants (by ticking Alternative No. 4) was the correct. answer according to recognised text·b<'oks and therefore each one of these appellants was entitled to an addition of 4-marks (three marks for giving correct answer plas I mark which had been wrongly deducted by treating their answers as wrong) and if such addition of 4:marks was made each one was entitled to get admission. Jn the case of Kumari Stinita Khare.(appellant in Civil Appeal· No. 4119/83) her Counsel raised a further similar contention with regard· to Question No. 100 in Zoology-paper as according to him the 'key-answer' supplied by the paper-setter (being Alternative No. 3) was clearly wrong or incorrect while the answer gi~eri by that' appellant (by ticking Alternative No. 4) was the. correct answer ·according to recognized taxt·books and therefore so far ~s she was concerned .even if her contention with regard tq • Question No. 31 was not accepted she was entitled to addition of four marks (3 for giving correct answer plus I mark which was wtongly deducted by treating her answer as incorrect) in regard to Question No. 100 and l A.BRUIT SEN v. U.P. STATE (Tulzapurkar, J.) even on this basis she would be entitled to get admission.

Counsel for the respondents did not dispute befpre us that if the two appellants or either of them is found entitled to an addition of four marks as suggested on their behalf they will have to be · given admission . to M.B.B.S. course but counsel disputed the validity of· the contention urged on behalf of the appellants that '.key-answer' supplied by the' paper-setter to either Question No. 31 or Question No. 100 in Zoology-paper 'was wrong or that the answers furnished by the appellants were correct.

Counsel urged that sirice the court was embarking upon a course of finding out and determining the correct answer hjtving regard to ·1µe recognised text-books or authorit_ative books on the subject it would be immaterial whether the 'key-answer' supplied by the paper setter was found to be wrong, not being in confirmity with the correct answer determined by the Court but the appellants would not be entitled to addition of four marks. unless their answers were in confirmity with the correct answers found by the court. In other words according to counsel for the respondents if a situation was reached where both the answers, namely, the one given by the appellants as well as the 'key-answer' supplied by the paper-setter, were found to be wrong with reference to the correct answer as determined by the Court the appellants should not succeed. We think there is considerable force in this· last admission made by the Counsel for the respondents. Question No. 31 the Zoology-paper together with the suggested answers reads thus : · "31.

In I.he vertebrates Oxygen is transpprted by the blood as follows : (1) Absorbed (typographically wrongly typed as Absorbed) to the surface of R.B.C. (2) Combined with Hemoglobin to form a complex, (3) Dissolved in plasma, (4) In all the above ways." !t may be stated that in Alternative No. 1 above the first word typed 1s 'Absorbed' (meaning 'to take in') which is obviously a trpographioai or printin~ mistak~ for _the word 'Absorbed' . (meaning 'get ·attached' or 'collect on') for, gramatically the word 'Absorbed' would be followed by 'in' and nut 'to'. This would al;o be clear from · the word 'the surface' which follow in as inuc:h as· there· cannot be any absorbing to the surface. The correct word is 'Absorbed' mean, ing get attached. to the surface or get collected on the surface. It is therefore, clear that the first. alternative read correctly would run thus:· "Absorbed to the ~urface of R.B.C." Now the key-answer' supplied bythe paper-setter was Alternative No. 2 whereas both tiie appellants had ticked Alternative No. 4 as the correct answer.

Both sides, for the purpose of cljliming -that eacl1 one's answer is the correct enswer, have relied upon the following passag;,· appearing at page 547 ·of the text-book 'Medical Physiology' by'Ar\hur C. Guyton, M.D .. of international repute under the heading 'Transport of Oxygen in the Bloo.d' : "Normally, about 97 per cent of, thsoxygen trans• ported from the lungs to the tissues is carried in chemical combinatioll' with hemoglobin in the red blood, cells, and the remaining 3 per cent is carried iµ the dis$olved state· in the water of the r.lasma and cells.'.' In our. view on a careful reading of the aforsaid . passage, on which · the both sides have relied, both the 'key·anS1ver' supplied by the paper-setter as well as the answer given by the two appellants will have to be.:regarded as wrong,. The aforesaid passage ·clearly shows. that in vertebr~tes Oxygen is transported by the blood in. ways as given by two alternatives namely, Alternative No. 2 and ·3, 97 percent by Alternative No, 2 and the remaining 3 per· cent by Alternanative No. 3 and there is no reference whatsoever to Alternative No. J as .being one of the ways in which such tran'sport takes place.

Couse! for the respondents urged that since 97 per cent of Oxygen was transported in 'chemical combination with Hemoglobin in ·the red~b!ood cells that was pre-dominant way in which the transport ta_k.es place and \herefore the' key-answer' which referred to Alter· native No. 2 would be the correct answer. It is· not possible to accept this contention for the reason tllat in'.the question set it was not asked as to what was the pre-dominant way ia which Oxygen is transported by.the blood and therefore Alternaiive No.'2 cannot be said to· be the correct answer. In our view both the Alternatives · oogether (Alternative No. 2 _and 3) would be· 1he . correct answer. Further, since Alternative No. I has no where been i;nentioned· in tile ABHIJIT SEN v . . tJ.P. STATE (Tu/zapurkur' J.) passage quoted above as being on~ of the ways in which transport of· Oitygen takes place the appellants by ticking Alternative No. 4 which suggested that such transpoit take& place in all· the three ways men: tioned earlier which included Alternati~e No. I would also .be clearly wrong.

Counsel for the appellants relied upon the words 'and cells' in the last portion of the passage ("the remaining 3 per cent is carried in the dissolved state in the water of the plasma and· cells") for contending that the Alternative No. I was also one of the ways in which such transport takes place. It is not possible to accept this contention for the simple reason that the last portion of. the· passage on which reliance has been placed speaks of 3 per cent being cartied· in the dis· solved state in the. water of the plasma and cells while the· Alternative No. I speaks of transport by being absorb~d i.e. by getting ·attached ·to the surface· of the R.B:C. Obviously, therefore, the inclusion within. their answer by the appellants of Alternative No. I . as being one of the ways in which sqch transport .takes place. was. clearly wrong.

In this view of the matter we do not think that · either of the appellants is entitled. to an addition of four marks as· suggested by counsel on their behalf by reason of thtir answer given to Question No. 31. Torning to Question No. 100 in Zoology-paper (with which only the appellant Kumari Sunita Khare is concerned) that question reads : · "I 00. A scout bee finding a food source communicates to the other worker· bees the location of the food source- (I) .Can not. communicate the direction· of food source-? (2) Can communicate the direction of food source through its round dan.ce ? (3) Can communicate the direction of food· source . throu~h its tail wagging dance ? • ( 4) Can col)lniunicate the directjon of food source through its round dance as well as ·tall waggilfg dance.?· SUPR.EMB COURT REPORTS · (1984) I S.C.R. The 'key-answer' supplied by the paper-setter was Alternative No. 3 while according to the Appellant Alternative. No~ 4 was the correct answer.

In Biological Science' by Willfom H. Gregory and Edword H. Goldman while dealing with the 'bee language' on page 391 the following passage occurs- " ........ A peculiar 'bee dance' is performed py returning scouts. if the food is close, a round dance is per· formed. If the food is farther than 100 yards, a special tale wagging dance ls staged. The direction of the food is also indicated." In the book 'Special ·Organization', on Honey-bees by. Dr.· V. Freser at page 4~ the author has, while dealing witl:r the 'dance language', given further refinement thus : "when the forage is located within 28 meters of the colony, on its return home, .the successful forager performs a 'tail wagging dance". "when the, forage is locatM 100 meters or more away . from nest a successful forager performs a 'tail wagging dance".

From .the above passages of the learned Authors one thing is very clear t!J.at the range plays a very important part in deciding whether the scout bee or the successful forager on return home would per· form a round dance anti according to Gregory and Goldman if the food is close-by a round dance is performed and if the food is further than JOO days a tail-wagging dance is performed whereas according to t)le refinement given by Dr. Freser if the food is located within 28 metres a round dance would be performed but if it is located at the distance of 100 meters.or more tail-wagging dance is performed. Now the _question set by the paper,setter makes no· reference whatsoever to any range with reference to which the candidate is called upon to give his answer to -the question and in the absence of any reference to the range according lo the aforesaid passages Alternative No. 4 would be the correct answer and not Alternative No. 3 which had been supplied as 'key·answer' by the paper-setter.

In our view it is a c·ase of· tricky question being set by the paper setter wher.e one the essential aspects namely', the range has not been indicated anywhere in the question. Placed in, that situation the appellant Kumari Sunita K~are was right when she l ABHIJIT SEN v. u. P. STATE (Tulzapurkar, J.) '991 ticked Alternative No. 4 as being the correct answer to the questiol\ set:. In view of what is stated above.only one appeal 'namely. Civil Appeal No.4119/83 of Km. Sunita Khare deserves to be alk>wed. We allow it accordingly with .cost and direct the respondents to giv,e her admission to the M.B.B.S. course in the 1983 session. The other ·· three appeals 11re dismissed but there will 'be no orders as to costs.' N.V.K. C.A, 4119/83 allowed. C.A. 4116-1883 dismissed .