Dr. (Mrs.) Sakti Rupa Chakraborty Vs. University of Calcutta and ors. - Court Judgment

Excerpt:
- samir kumar mookherjee, j.1. the petitioner in the present case, after passing her m.b.b.s. examination, was selected for the diploma course in obstetrics and gynaecology, which, in abbreviated form, is known as d.g.o., of the calcutta university and duly passed the same in 1978. the petitioner, thereafter, joined the west bengal health service, and at the relevant time, was working as a medical officer in the department of o & g in n.r.s. medical college at calcutta. pursuant to an advertisement, the petitioner submitted an application for admission in the m.d. (o & g) course of the calcutta university for the session, commencing in the year 1988, and the petitioner being a west bengal health service candidate, her case was sponsored by the state government for appearance in the entrance examination for one of the five seats, reserved for the medical officers of the west bengal health service. the list published upto 8th august, 1988 contained the petitioner's name along with the names of five other candidates for the five seats reserved for west bengal health service. the petitioner secured joint fourth position along with two other candidates. in that situation, although the petitioner became successful in the written tests, she had to appear at an interview before a selection committee for selection of two out of three candidates securing the same fourth position. from the list published on 5th september, 1988, it seemed that the petitioner did not succeed-in the interview as her name did not appear in the list of successful candidates in such interview. on the basis of representation made by the petitioner thereafter, inter-alia, pleading past precedents, the government requested the university to accommodate the petitioner by increasing one seat in the quota of government seats, if necessary, by reducing the government quota next year by one. such representation of the petitioner or the recommendation of the government having proved abortive, the writ application was moved on or about 28th november, 1988. the application was ultimately heard out as a contested application upon service of notice to the concerned university authorities as also to the medical council of india through its secretary.2. at the hearing the university respondents filed their opposition and were represented by mr. das adhikary affidavit-in-reply had been filed on behalf of the petitioner. there was no appearance, however, on behalf of the medical council of india. on behalf of the appearing parties detailed submissions had been made which included validity and propriety of the interview and vires of the rules framed by the university, apart from correctness of the process of allotment of marks in such interview.3. as regards the objective aspect of the matter the admitted position is that if the petitioner was the lone candidate securing fourth position, then even without an interview she would have been found eligible for prosecuting m.d. course in obstetrics and gynaecology. the interview had brought failure to her. the candid ate/petitioner has challenged the allotment of marks in the written tests on the basis of which she secured a common position with other candidates. for justifying the marking and for substantiating the stand taken to that effect by the university authorities, the answer script of the petitioner had been produced before this court. from the affidavits filed by the parties, it has transpired that a candidate had been allotted full marks even for an incorrect answer with regard to a question, which was declared ambiguous by the university, and for every incorrect answer a candidate had been subjected to negative marking, that is, half of the full mark for an incorrect answer had been deducted from the total marks obtained by the candidate. it appears that the candidate had to answer 95 questions by 'ticking method' within a span of one hour fifteen minutes, each question carrying one mark. the broad requirement was to indicate by ticking, on the answer paper itself, the 'most appropriate answer' out of the answers mentioned against each question. admittedly the university declared three questions as 'ambiguous questions' and due to error with regard to answers to question nos. 2, 15, 21, 23, 28, 30, 51, 53, 68, 69, 72, 78, 79, 84, 87 and 91, there was negative marking by deducting half mark against each answer thereto.4. contentions, similar to those, which i am called upon to deal with in the present case, had been frequently raised before the highest judiciary of the country as also before this court on earlier occasions culminating with authoritative pronouncements. the procedures judicially recognised, the ratios laid down and the guidelines formulated in such pronouncements have eased my task to a very great extent. it is, as i feel, therefore, convenient and necessary to refer to and reiterate the above trinity from such reported authorities, for sustaining and justifying the ultimate conclusion i reach regarding the merit of the petitioner's prayers for reliefs as also the nature and extent of such reliefs, if at all the petitioner is found entitled to, which may be granted to her.5. in the case' of charles k. skaria v. c. mathew reported in air 1980 supreme court 1230, justice krishna iyer, delivering the judgement of the court, laid down, in no unmistakable terms, the perennially sanctioned judicial cannon that procedure should be the hand maid not mistress of and form should be subservient to substance not superior to the essence thereof ; end could not undermine the means ; equity shall overpower technically where human justice is at stake ; in law if one fails, in justice he need not ; if marginal adjustment by increasing one seat more were possible, without injury to academic efficiency ; a candidate, though having no legal claim to a seat, in the context of overall circumstances, may merit compassionate consideration, if necessary, by addition of one more seat, only for a particular year. in another case, kanpur university and ors. v. samir gupta and ors., reported in : [1984]1scr73 , chandrachud, j. the then chief justice of the supreme court, while pronouncing the verdict of the court in a conflict regarding the correctness of the key answer and the answer given by the students, approved the procedure that key answers should not be kept secret as that might compel so many students to suffer injustice in silence ; an answer given in an acknowledged text book, commonly read by students (here prescribed text books), if does not tally with the key answer the students ought not to be penalised ; in a system of 'multiple choice objective type test' care must be taken to see that questions having an ambiguous import are not set in the papers but only clear and unequivocal question are set; applying the above tests, if the student is found entitled to addition of mark that should be given. in the case of abhijit sen and ors. v. state of u.p. and ors., reported in : [1984]1scr983 the court itself embarked upon investigation into propriety of the key answer and the answer given by the student/candidate on the basis of text book, which the student was expected to read, to find out and determine the correct answer. the last decision which i shall refer to, was delivered by t. k. basu, j. in the case of somnath bandyopadhyay v. university of calcutta and ors., 90 c.w.n. 743 wherein it was laid down by his lordship that in cases of model or key answers to multiple choice objective type questions the correctness was justiciable in court of law and the court could scrutinise whether the model answers were right or wrong and if the option ticked by the students is correct, the student is entitled to marks. it was further laid down in that decision that even if the session for which the candidate sought admission had come to an end the educational authorities could be directed to admit the candidate in the course for the current year exempting the period during which the candidate was not admitted or could not join classes.6. in the present case, applying the aforesaid tests and following the procedure recognised and approved judicially, i proceed to deal with the factual contentions on merit. upon consideration of the questions, which were treated to have been erroneously answered by the candidate/petitioner, i have found that some such questions ought to fall in the category of 'ambiguous questions' because, even on the basis of prescribed text books of the university, the answer given by the candidate could not be said to be wrong but, at the most, it could have been treated as one of the correct answers. such questions can be said to be ambiguous questions. for our present purpose, testing few questions for substantiating the above finding of mine would be sufficient because that would add to the credit of the petitioner, in the minimum one and half marks and would take her out of the bracket-ted fourth position with other candidates. question no. 2 was as follows : -'amount of liquor amnii ate 30 weeks pregnancy is.-(a) 400 ml.(b) 500 ml.(c) 600 ml.(d) 700 ml.'7. according to the university authorities the most appropriate answer would be that given in clause (c) and this answer was available according to materials furnished by the university in the text book 'obstetrics and gynaecology by c. s. dawn.' the said book, however, was not specifically mentioned as one of the text books in the list of such books published by the university and as produced before me. the candidate's answer with regard to this question, however, was clause (a) and such answer sought to be justified by the candidate by reference to different passages of the text books prescribed by the university itself. i propose to quote, as cited and relied on by the petitioner, from page 318 of the text book 'obstetrics and gynaecology (fifth edition) 1986 edited by devid n danforth'-'range of normal volume of amniotic fluid at 30 weeks of pregnancy shows lowest limit below 400 ml. and higher limit upto 250 ml.'8. to take another question, namely, question no. 15. 'the length of pelvic part of the ureter is-(a) 10 cm.(b) 13 cm.(c) 18 cm.(d) 20 cm.(e) 22 cm.the key answer according to the university is (b) i.e. 13 cm. the candidate's answer is (a) i.e. 10 cm.on behalf of the university pages 332 and 321 from the book of r.j. lasel (not a specified text book) have been quoted to show that the length should be 12.5 cm. in 'gray's anatomy', 37th edition, pages 1413 and 1414, such length has been given as 12.5 cms. to 15 cms. and on the basis of the said text book 13 cms. has been taken to be the most appropriate answer. on the other hand the candidate/petitioner has quoted from 'post graduate obstetrics and gynaecology, 4th edition (1973) by j. c. mcclure browne published by butterworth page 413' that the pelvic part is 14-20 cms. therefore, answers (c) and (d) both become correct and it has been argued that the question being susceptible to two answers is an ambiguous question. to take another question, namely, the question no. 53-'secondary arrest in active face of first stage of labour means non-progress of cervical dilatation for atleast-(a) half hour(b) one hour(c) one and half hours(d) two hours(e) three hours.'9. according to the university the key answer is (d) but the candidate's answer is (e) which has been held to be incorrect with the resultant deduction of half mark. it has been shown to me that a prescribed text book 'william's obstetrics, 17th edition' at page 643 states as follows :-'from the table 29.-1, abnormal labour patterns, diagnostic criteria and methods of treatment. labour pattern diagnostic criterion 1. arrest disorders nulligravidas multiparas 2. secondary arrest more than 2 hours more than 2 hours' of dilatationclause 2 quoted above makes it clear that the time period may be more than 2 hours and as such the answer of the candidate cannot be outright rejected as incorrect and a deduction of half mark on such basis cannot also be sustained.10. consideration of the aforesaid apparently technical details, from a broad stand point, indicates that the candidate was entitled to some more marks, which, if allowed, would have rendered her eligible in preference to other candidates occupying jointly the fourth position and also would have obviated the necessity of the petitioner's participation in the viva-voce test.11. the petition, therefore, must succeed and the action of the respondents in not including the petitioner's name in the final list must be declared to be arbitrary, illegal. if such success is to be given effect to, the only difficulty, which may arise and which has been canvassed by the contesting respondents, is that the number of seats being fixed, the university authorities have no power to add to the same since the enlargement of the number depends only on the medical council of india. it is found that the 'general information,' embodying the relevant rules for admission of candidates provides for relaxation in the case of candidates from foreign countries sponsored by the central government and those sponsored by the government of tripura and other states of north eastern region. since in the present case, refusal of providing a seat to the petitioner would be a manifest injustice, i do not feel hesitant to issue a direction for creation of an additional seat, if necessary, for accommodating the petitioner. i have referred to the above provision only to show incidentally that number of seats is neither firm nor inflexible.12. accordingly, i declare the results published by the university, which are annexures 'b' and 'c to the writ application as incorrect as far as the non-inclusion of the petitioner's name is concerned and the petitioner's name be deemed to have been included in such lists. i issue a writ of mandamus directing the respondents to allow the petitioner to prosecute the m.d. (obstetrics and gynaecology) course in the session commencing in the year 1992 by sanctioning an additional seat earmarked for the petitioner, as a state sponsored candidate belonging to west bengal health services, if necessary, by addition also of such a seat by the medical council of india and the state government is directed to bear the expenses of the additional seat. let appropriate writs issue.13. before parting with the case, i keep it on record that since i have found merit in the petitioner's contention on a factual basis, i do not fell it necessary to go into the other technical arguments about the validity and vires of the rules advanced on behalf of the contesting parties. those questions have been kept open. the writ application is allowed to the extent indicated above.there will be no order as to costs.14. let xerox copies of this order be delivered to the learned advocates for the parties on their usual undertakings to apply for and obtain urgent certified copies.