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Krishna Kumar Roy Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 3108 of 1980
Judge
Reported inAIR1981All287
ActsConstitution of India - Article 226; Evidence Act, 1872 - Sections 45
AppellantKrishna Kumar Roy
RespondentState of U.P. and ors.
Excerpt:
.....by the board, though the board has not recommended any book in its latest prospectus. may be these books were not considered wholly satisfactory, or it was thought that other books were equally good. the f2 consists of three-fourths dominant (tall) and one-fourths recessive (dwarf). however, only one-third of the tall plants breeds true, the other two-thirds are exactly like the f1 and will segregate in the next generation. here both the dominant and the recessive traits reappeared, as pure and uncontaminated as they were in the original parents (generation p).'19. all that we find from a close perusal of the various text books shown to us on both sides is that in fl generation the plants contain a mixture of both tall and dwarf traits, but in the second, generation called f-2, the two..........plants in f2 population shows : (1) dominance, (2) segregation, (3) independent assortment, (4) purity of gametes.' 16. the correct answer declared in the key, annexure 2, was serial number 2, namely, segregation. the petitioner does not dispute that segregation was the correct answer. what he says is that the alternative 4 was equally correct, and as he had answered correctly by marking alternative 4 he too ought to have been treated as having answered correctly. in support of this contention he has cited in para 20 of the petition six books in which it has been stated that the law of segregation is also called the law of purity of gametes. the learned counsel for the petitioner, besides the books mentioned in para. 20, has cited before us principles of genetics by s. j, gardner of.....
Judgment:

K.N. Goyal, J.

1. Combined Pre-Medi-cal Test (for short, C. P. M. T.) is held every year in accordance with the orders of the State Government issued under Section 28 (5) of the U. P. State Universities Act, 1973. This test is conducted by one of the State Universities, and admissions to all the State Medical Colleges and the King George Medical College, Lucknow, are made out of the candidates obtaining the highest position in this test subject to various reservations. We are not concerned in this case with reservations.

2. The petitioner was one of the general candidates. Four papers are set for the test, each containing 100 questions, each carrying three marks. Thus the maximum marks of all the papers come to 1200. The petitioner secured 875 marks at the last C. P. M. T. All the general candidates who had secured up to 881 marks and some of those who had secured 880 marks have been able to secure admission. Two of the candidates who obtained 880 marks and others who secured less marks are still in the waiting list. The petitioner's contention is that if the proper marking had been done then he would have secured more marks than 880.

3. After the C. P. M. T. was held, correct answers were published as per a 'key', An-nexure 2 to the writ petition. Against question No. 17 of Chemistry and question No. 45 of Physics paper it was mentioned that 'due to some printing errors all the candidates have been given full marks in these two questions'. The petitioner's contention is that he had answered these questions correctly and it was wrong on the part of the examiners to have given full marks even to the candidates who had not answered these questions correctly. It was conceded before us that the printing error consisted of discrepancies between the English and Hindi versions in the questions. Each paper is a multiple-choice objective style paper. In other words, against each question four alternative answeres, marked 1, 2, 3 and 4 respectively are indicated, and the candidateis expected to note the serial number of the correct alternative in the answer sheet. What happened in regard to these questions was that the serial numbers of the alternatives given in the English version in the left-hand column did not tally with the serial numbers of the same alternatives in the Hindi version given in the right hand column. Such being the situation, the examiners rightly took the view that it could not be ascertained as to which candidate had answered the question correctly. The petitioner cannot prove that he had answered the question correctly as one has no means to find out whether he was guided by the English version or by the Hindi version, nor could he prove that any other candidate had answered the question incorrectly. Thus the objection raised on this core was obviously untenable.

4. The petitioner has further contended that he had given correct answers to question No. 44 of the Zoology paper and question No. 90 of the Botany paper and that the examiners were wrong in treating his answers as incorrect. The marking admittedly has been done according to the key published by the authority conducting examination, namely, Annexure 2. What has been suggested is that the key itself was wrong so far as the alternatives indicated by the examiners in that key in respect of these questions are concerned.

5. The learned Standing Counsel for the respondents 1 and 2, Sri Umesh Chandra, has contended that it is not open to this Court to sit in judgment over the views of the examiners. The decision of the examiners with regard to the correctness of the answers must be treated as final. He has in this context referred to the University of Mysore v. Govinda Rao, AIR 1965 SC 491 (para 12) in which their Lordships held that the view of the academic body as to what should be treated as 'high second class' degree should not be interfered with by the Court. Likewise in Principal, Patna College, Patna v. K. S. Raman (AIR 1966 SC 707) it has held that where it is plain that the Regulation framed by an academic body is capable of two constructions it is generally not expedient for the High Court to reverse the decision of the educational authorities on the ground that the construction placed by such authorities on the relevant Regulations appears to the High Court less reasonable than the alternative construction which it is pleased to accept. Both these cases Were considered by us in Sushil Chand Tewari v. State of U. P. (Writ Petition No. 3026 of 1979 decided on 14-12-1979), and we held thatalthough the view of the academic expertsshould not normally be interfered with, yetif the expert body takes a view which noreasonable person could take them the Courtcould and ought to interfere. As pointed outby Lord Denning in Baldwin and FrancisLtd. v. Patents Appeal Tribunal, ((1959) 2 AllER 433) even on technical matters a Courtcan hear arguments of counsel and consulttext books, technical dictionaries, etc. or evenbe informed through assessors, and theCourt's jurisdiction is not to be shut outmerely on the ground of technicality of thematter. We have therefore to approach thequestions raised in the light of the generalprinciple that we should not lightly interferewith the opinion expressed by experts butinterfere only where the expert takes a viewwhich no reasonable person could possiblytake.

6. Question No. 44 of the Zoology paper was as follows :--

'44. The last and final moulting of rhabdi-tiform larva of ascaris takes place in the : (i) Heart of man, (ii) Liver of Man, (Hi) Lung of Man, (iv) Intestine of man.'

7. According to the key published the correct alternative was 3, i. e., lung of man. In the petition, three books were cited in which the answer given was that the last and final moulting takes place in the intestine of man. These books are as follows :

1. Adhunik Janta Vigya by Dr. Ramesh Gupta M. Sc., Ph. D., F. A. Z., Head of the Zoology Deptt. Sri J. N. Degree College, Lucknow, revised by Dr. V. P. Agarwal, M. Sc., Ph.D. (London) F. Z. M., F. L. S., Principal D. A. V. College, Muzaffar Nagar.

2. Adhunik Praniki by Dr. Uma Shanker Srivastava Professor & Head of Zoology Department, Allahabad University and Kripal Singh Bhatia a teacher of Post-Graduate Zoology Department of an affiliated College.

3. Animal Biology by (Late) E. L. Jordan, M. Sc., M. A. (Toronato) and H. C. Nigam, M. Sc. F. I. A. Z., Cert. Sum, Inst. Head of the Zoology Department, Lucknow Christian College, Lucknow.

8. It appears that after the notice of thiswrit petition was taken by the Registrar, AgraUniversity, who conducted the C. P. M. T.of this year, the examiner concerned Dr. A- S-Kapoor, Professor of Zoology in the University of Rajasthan was asked for his views.Dr. Kapoor, however, stuck to his view thatthe correct answer was the third alternative,namely the lung of man and not the fourthalternative, namely, the intestine of man. Hehas stated as follows :--

'It may be true that some of the books have stated that the fourth and final moult of the rhabditiform larva of Ascaris takes place in the intestine of man. There are all kinds of books in circulation in the market and many of these carry minor discrepancies of different nature. However, in such matters, reliance is to be placed on standard books on the subject which state that the fourth and final moult of the larva takes place in the lung of man. Accordingly, the third alternative for the answer to the question is the correct alternative.'

He however did not cite any 'standard book' in support of the view taken by him. At the time of arguments also, the learned standing counsel was not able to cite any treatise in support of the view taken by the examiner. The University could have taken the assistance of the moderators of the paper or of other experts in this regard. It appears that the syllabus for the C. P. M. T. is the same as that for the Intermediate examination conducted by the Board of High School and Intermediate Education, U. P. Neither the Board nor the University conducting the C. P. M. T. examination has prescribed or recommended any text books for the candidates. It appears that the books referred to above are the main books in circulation in the Intermediate Colleges of the State. No other book in circulation in such colleges has been brought to our notice. Until a few years ago Jordan and Nigam's and Uma Shankar Sri-vastava's books aforesaid were 'recommended' by the Board, though the Board has not recommended any book in its latest prospectus. May be these books were not considered wholly satisfactory, or it was thought that other books were equally good. However, the learned counsel for the petitioner has brought to our notice the following other text books on the subject :

Invertebrates by R. L. Kotwal, S. K. Agarwal, and R. P. Khetarpal (of the Department of Zoology, Meerut College, Meerut and D. A. V. College, Ambala),

9. Although it is a private publication,it is mentioned that the book has been subsidised by the Government of, India throughthe National Book Trust of India for thebenefit of students. At page 335 of the 4thEdition (1977) of this book it is mentionedthat after remaining in the lung for severaldays the larva of ascaris passes through otherstages, and finally, in the intestine it moultsfor the fourth and the last time to becomeadult.

10. In the Animal Biology by Grove andNewell, published by certain. English Professors (8th Edn., 1969) at page 203 also, it is indicated that after passing through the lung the final moulting takes place in the small intestine.

11. In the book by Parker and Haswell on Zoology (Text Book of Zoology, Invertebrates, Vol. I, 7th Edition 1974, reprinted by English Language Book Society and Mcmil-lan), at page 251, again, it appears that the fourth and final moult occurs in the intestine. The moulting in the lung takes place at ail earlier stage.

12. In parasitology by Dr. R. D. Chat-terjee, Hony. Professor of Medicine, R. G. Kar Medical College, Calcutta (1969 Edition), at pages 176-177, the same has been stated.

13. Thus, we find that the authorities are all one way, and the expert examiner has himself not cited a single authority. In such a situation his mere ipse-dixit to the contrary cannot be treated as conclusive. We have, therefore, no option but to hold that the examiner in holding that the last and final moulting takes place in the lung of man and not in the intestine of man took a view which no reasonable person could take. The petitioner's contention in this regard must therefore be upheld.

14. If we take this to its logical consequence the result would be that all the candidates who have been given three marks for giving alternative No. 3 as the correct answes should instead have been given one negative mark for giving an incorrect answer. Thus their marks should stand reduced by four. This would however lead to total up-setting of the result which had already been given effect to a couple of months before this petition was filed. Students have already secured admissions and are prosecuting their studies in pursuance of the result announced on 1st of August, 1980. We would, therefore, follow the guideline laid down for such cases in Charles K. Skaria v. C. Mathew, (AIR 1980 SC 1230). In paras 9 and 18 of the report their Lordships held that the judicial process must hesitate to scuttle but should salvage wherever possible and destroy only when the situation is beyond retrieval. In that case also the students were half-way through their course, and in spite of the unconstitutionally found in regard to the method of selection it was held that only the least disturbance should be ordered so that the result of litigation may be constructive and not destructive. In the present case what we find is that the writ petition was filed at least three months after the declaration of the result. Howmuch delay may constitute laches depends upon the circumstances of, each case. In some cases even a few days' delay may be fatal. Here the petitioner has come to this Court after the courses have already started in pursuance of the admissions. We could on this ground have declined to interfere altogether but for the fact that the mistake pointed out by him is too patent and some admissions are still going on from the waiting list and the petitioner still stands a chance of securing admission. We, therefore, make it clear that the candidates who have already secured admission on the basis of alternative answer No. 3 being treated as the correct answet would not be disturbed as a result of out decision. However, the waiting list of the candidates who have not yet secured admissions can be revised in the light of out decision.

15. Coming now to the Botany paper, question No. 90 was as follows :

'The appearance of tall and dwarf plants in F2 population shows :

(1) dominance,

(2) segregation,

(3) independent assortment,

(4) purity of gametes.'

16. The correct answer declared in the key, Annexure 2, was serial number 2, namely, segregation. The petitioner does not dispute that segregation was the correct answer. What he says is that the alternative 4 was equally correct, and as he had answered correctly by marking alternative 4 he too ought to have been treated as having answered correctly. In support of this contention he has cited in para 20 of the petition six books in which it has been stated that the law of segregation is also called the law of purity of gametes. The learned counsel for the petitioner, besides the books mentioned in para. 20, has cited before us Principles of Genetics by S. J, Gardner of Utah State University (5th Edition) page 9 which states as follows :

'The most significant deduction from Mendel's results was the separation of pairs of determiners resulting in the purity of gametes.'

The expert examiner of Botany who is also a Professor in the University of Rajasthan has however stuck to his view that the correct answer is segregation, i. e., alternative 2. He has in support of his view relied upon two authorities which are as follows :--

1. Principles of Genetice (5th Edition) by Sinnott, Dunn and Dobzhansky,

2. Elementary Genetics (1962 Edition) by Prof. Singleton of the University of Virginia (U.S. A.).

The first book states as follows :

'Moreover, Mendel, unlike bis predecessors, counted the numbers of individuals with each of the .differentiating characters which re-appeared by segregations in F2. In the experiment with flower colour, for example, he raised 929 F2 plants and found that 705 of them bore red flowers and 224 bore white flowers. A similar segregation occurred in the F2 generations from crosses involving other pairs of characters.'

17. The second of the books cited by the examiner states as follows :--

'The diagram illustrates Mendel's Law of segregation.

It also shows the consequences of dominance. The F2 consists of three-fourths dominant (tall) and one-fourths recessive (dwarf). However, only one-third of the tall plants breeds true, the other two-thirds are exactly like the F1 and will segregate in the next generation. The recessive is a pure line and will breed true.'

18. The learned Standing Counsel also relied on the aforesaid book by Jordan and Nigam, namely, Animal Biology, which has been cited by the petitioner himself in connection with the Zoology paper. As this theory of genetics is common for plant life and animal life, the authors of this books have dealt with Mendel's Laws in the chapter on Heredity. They have also described the law of segregation in the context of monohybried Crosses in respect of which experiments were made by Mendel. These authors have not spoken about the purity of gametes while speaking of segregation. As against this, the learned counsel for the petitioner Sri Trivedi has referred to the Encyclopaedia Britannica (15th, 1979, Edition, Volume 8) pages 802 and 803, in which the following passage occurs.

'Since pea plants reproduce usually by self-pollination of their flowers, the variaties Mendel obtained from seedsmen were 'pure'-i. e., descended for several to many generations from plants with similar traits. Mendel crossed them by deliberately transferring the pollea of one variety to the pistils of another; the resulting first-generation hybrids, denoted by the symbol Fl, usually showed the traits of only one parent For example, the crossing of yellow-seeded plants with green-seeded ones gave yellow seeds; the crossing of purple-flowered plants with white flowered ones gave purple-flowered plants, etc. Traits such as the yellow-seed colour and the purple-flower colour Mendel called dominant; the green-seed colour and the white flower colour he called recessive. Itlooked as if the yellow and purple. 'bloods' overcame or consumed the green and white 'bloods'. That this was not so became evident when Mendel allowed the F1 hybrid plants to self-pollinate and produce the second hybrid generation, F2. Here both the dominant and the recessive traits reappeared, as pure and uncontaminated as they were in the original parents (generation P).'

19. All that we find from a close perusal of the various text books shown to us on both sides is that in Fl generation the plants contain a mixture of both tall and dwarf traits, but in the second, generation called F-2, the two traits are segregated, and tall as well as dwarf plants reappear. Such a segregation results in re-appearance of pure gametes. Thus, in an indirect manner, it may be said that segregation also leads to purity of gametes, and it is for this reason that the law of segregation has also been described in some books as the law of purity of gamates while other text books have not mentioned this alternative description of the law. All of them have however referred to segregation.

20. It is however noteworthy that the question is not about the choice between the law of segregation or law of purity of gametes as suggested in para 18 of the writ petition. The choice is between segregation and purity of gametes. The examiner wants the students to tell him what is shown by the appearance of tall and dwarf plants in F2 generation. Normally, in an objective test, the choice given should be such that only one alternative could be said to be the correct alternative. Here we find the choice between segregation and purity of gametes as not a very satisfactory choice. However the primary answer should, it seems, be segregation, though the secondary answer may be purity of gametes. If the examiner chose in his wisdom to set such a question with these alternative choices we cannot say that he acted illegally. The concept of 'reasonableness', for the purposes of administrative law, is not that of what appears to the Court to be more reasonable. The scope of interference by the Court is limited to a case where the view taken by an authority is such that no reasonable person could possibly take. We are not in a position to say that the examiner took such a wholly unreasonable view in deciding that out of these two alternatives the primary alternative of segregation should have been indicated and not the secondary alternative of purity of gametes.

21. In the traditional system of examinations, essay-type answers were required, andit could be possible for the examiner to give marks according to the process of reasoning indicated in the answer written by the candidate. Such gradation of marks is not possible in an objective test. Each system has its own merits and demerits. In an objective test a candidate may feel that he has not got his due in respect of one answer; but he may have secured marks for other answers by mere fluke without knowing anything of the subject-matter of the questions. The Court cannot, therefore, interfere on such subjective or hypothetical considerations. We are not in a position to say whether the examinee really knew or not that segregation also resulted is purity of gametes. We are only to consider whether the expert who decided, in advance, for all candidates uniformly, that the more appropriate answer would be segregation rather than purity of gametes, acted in a manner in which no reasonable person could possibly act. We are in the circumstances unable to uphold the petitioner's contention in regard to the Botany paper.

22. We find that the respondent No. 3 has been unnecessarily impleaded as there is no question of the petitioner being admitted automatically to the King George Medical College, Lucknow. To which of the seven colleges a candidate was to be admitted, if at all, would depend on the rules in this regards, and he could not presume that he would secure admission in an institution of his choice. However, respondent No. 3 has not put in appearance.

23. In the result, the writ petition is allowed in part, and the respondents Nos. 1 and 2 are directed to award the petitioner four more marks in the Zoology paper and to rearrange the waiting list in accordance with the observations in this judgment. No order is made as to costs.


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