B.C. Ray, J.
1. The petitioner No. 1 who is the guardian and father of the petitioner No. 2, Sri Jayanta Banerjee and the petitioner No. 2 who appeared in the Joint Entrance Examination held in1982 by the West Bengal Board of Examination for admission to Medical, Engineering and Technological Degree Colleges, moved this writ application assailing the legality and validity of the Constitution of the said Board of Examination as well as the illegal and arbitrary procedure adopted by the Board of Examiners in the matter of assessment of the examination papers submitted by the candidates appearing in the said examination and also in the matter of conducting and publishing the results of the Joint Entrance Examination held in 1982.
2. The salient facts as appeared in the writ petition in brief are as follows : the petitioner No. 2 applied with registration fee to appear in the Joint. Entrance Examination to be held in 1982 and his registration number in the said examination is M/GAS-114. The admit card issued to the petitioner in respect of the said examination was annexed as annexure 'C' to the petition. The petitioner No. 2 duly appeared in the said examination and answered all questions to his greatest satisfaction. He expected to do better in the said examination and he also expected to be within the successful candidates in order of merit for being admitted in the medical colleges. It has been pleaded that the result was first published on 30th June. 1982 but immediately after publication the list was hurriedly withdrawn for republication later on. The list was subsequentlypublished in July, 1982 and in that list petitioner's name did not appear. It hasbeen stated that the Board does not follow any system to afford an opportunity to the aggrieved student for review, re-examination and/or scrutiny of his or her answer scripts. It has also been pleaded that there was a great difference in the result published in the first blush and in the results that was published in the second time, thereby giving room for serious doubts of arbitrariness, discrepancy, malpractice and utter discrimination at the behest ofsome persons of influence having vested interest. There has been serious resentment amongst students who appeared in the ensuing examination, examiners connected with the examination, guardians, educationists and people in general as to the mala fide and arbitrary mode ofconducting and publication of the result of Joint Entrance Examination, 1982held by the West Bengal Board of Examination for admission to Engineering, Medical and Technological Decree Colleges. It has been pleaded that the answer scripts of the students were not properly and fairly examined and there is discrimination in the matter of tabulation of marks and in publication of the list of successful candidates. It has also been stated that grace marks have been given to the tune of sixty in number without having any declared policy, rules, norms, procedure and lawful practice. It will be evident if all the relevant documents including answer scripts, tabulation sheets, selection papers and connected marksheet are produced before this Hon'ble Court, that there has been gross injustice, unfairness, arbitrary discrimination, undue favouritism, sacrificing all norms and procedures of fair examination system to the greatest prejudice and injury to the case of the students in general and to the case of the petitioner No. 2, in particular. In spite of repeated asking the authority refused to review the answer scripts on the plea that there was no such rule for review or disclose of the marks obtained by the examinees. As such the instant application has been made in a representative capacity on behalf of the unsuccessful candidates as well as on behalf of the petitioner himself. This application was moved on 30th July, 1982 whereon this court directed the petitioner to serve copies of this application on the respondents and on interim order was made in the meantime restraining the respondents from giving effect to the impugned results of Joint Entrance Examination held in 1982 and they were further directed to produce the results that was published first on 30th of June, 1982 as well as the subsequent results before this court on that day. The respondents were further directed to preserve all the papers of the examinees.
3. On 4th August, 1982, after hearing the learned Advocates for both the parties eight applications for addition of parties were allowed and they were directed to be added as petitioners to the original writ application and the cause title of the petition was directed to be amended. On 5th August, 1982 two other applications for addition of parties were also allowed and the petitioners of those applications were directed to be added as party petitioners. On 11th August, 1982 also several applications for addition of parties filed up to that date were allowed and the applicants in all those applications were allowed to be added as party petitioners.
4. On 20th August 1982, after hearing the learned Advocates for all the parties the instant, rule was issued and the interim order that was made earlier was extended till the disposal of the rule. Thereafter an appeal was preferred before appeal Bench of this court and the order of stay of operation of the order appealed against was made absolute till the disposal of the rule. This order was made on 24th August, 1982. Against the said order of the appeal court a special leave petition was filed before the Supreme Court and the Supreme Court rejecting the special leave petition directed the expeditious hearing of the rule.
5. On 1st October, 1982 an application under Rule 11 of the Rules of the High Court, Calcutta relating to applications under Article 226 of the Constitution of India was filed praying for leave to proceed with the writ application by the petitioners on behalf of the unsuccessful candidates who appeared in the Joint Entrance Examination. It was alsoprayed in the said application that the petitioner be permitted to proceed with the application on behalf of all the unsuccessful candidates in a representative capacity stating inter alia that some of the unsuccessful candidates have already been added as party respondents by order of the appeal bench of this court. This application was allowed and the petitioner was directed to proceed with the application in a representative capacity on behalf of all the unsuccessful candidates and the petitioners were further granted leave to proceed with the application against the successful candidates in a representative capacity and the cause title was directed to be amended accordingly.
6. A supplementary affidavit has been filed by Sri Satyendra Nath Das, the added petitioner on 6th August, 1982 and the same was sworn on 6th August, 1982. It has been stated in the said supplementary affidavit that there are glaring disparities and contradictions in question papers in English version and in Bengali version and with regard to the Instructions to the Examiners. It has also been stated in paragraph 6 of the said affidavit that in particular in question No. 4 (a) of the Biology paper there is serious discrepancy in English version and in Bengali version. The Instructions to Examiners do not stand in parity with the books of authority on the subject. There are similar instances if the proper scrutiny is being made in comparative study of the question papers and the instructions. It has also been stated in paragraph 7 of the said affidavit that in particular as regards question No. 13 of the Biology paper there is also discrepancy between the English version and the Bengali version and the Instructions to the Examiners Ho not tally with any standard book of the authorities approved by West Bengal Council of Higher Secondary Education, It has been further stated in paragraph 8 of the said affidavit that the instructions to examine the answer; scripts are against the tenor of the questions and the answers demanded as per the question. The mode of examination is confusing and injurious to the students. As regards the question No. 6 (b) (i) of the paper Physics there is also discrepancy between Bengali version and English version. The questions in Chemistry papers are very much misleading and the answers given in the standard books do not carry instructions. It has also been stated that the cover pages of the answers scripts of the students are taken off and code numbers have been given and unless the answer scripts are properly examined there are serious apprehension and doubts about mala fide and malpractice relating to conducting of the Examination itself. Another supplementary affidavit has also been sworn by Nirupam Ghose, an added petitioner on 9th August and filed on that day. It Has been stated in paragraph 2 of the said affidavit that he having secured 249 marks in the Joint Entrance Examination in 1982 and also having his name published in Merit List did not get a chance to get himself admitted in the Medical Stream for falling much below in serial number of the successful candidates in comparison to the seats available in Medical Colleges. It has been stated that the method of Joint Entrance Examination is basically incorrect. The reasons are obvious that the two separate streams, i.e., Medical Stream and Engineering Stream should have been separately examined for proper merit test for the separate streams, that is. a Biological Science Student Group for Medical Stream and Non-Biological Student Group for Engineering Stream should have been separately examined for avoiding all sorts of arbitrary selectionotherwise difficulties would crop up andfor various other reasons as suggestedin the present case. It has been furtherstated in paragraph 4, sub-paragraph Ithat the question paper of BiologicalSciences of 1982 and the directions tothe examiners by the Head ExaminerMr. Roychowdhury dated 29-4-82 containing the model scripts of answer withthe direction how to evaluate the answer script of the students were notedin the said instructions to Examiners bythe Head Examiner. The zerox copy ofthe said question paper and the instruction to examiner are annexed herewithas 'C' and 'D' to this affidavit. It hasbeen stated that the question No. 1 (II)'What is Osmosis?' is a question appearing in the annexure 'C'. The instructions given by the Head Examinerwith regard to the said question appeared in annexure 'D'. The direction of theHead Examiner as noted in the instruction to examiners annexure 'D' is obviously wrong, if it is read from anystandard book of Biological Science followed in the Higher Secondary Course.It has been further stated that the instructions given by the Head Examinerwith regard to the said question is'Movement of solvent molecules fromhigher concentration to lowerconcentration through a semipermeable selectively permeable membrane.' But the correct answer wouldbe from any standard book as follows : 'If two solutions of different concentrations are separated by a semi-permeable membrane, then the solvent from the less concentrated solution moves through the membrane to the more concentrated one.' It has been stated that this direction given by the Head Examiner being obviously wrong and as a result any student although answered correctly would be debarred from getting the marks allotted for it. It has also been stated that the Board after receiving the answer scripts took off the first cover page of the answer scripts where the Roll No. of the candidates appears and flexible code number was put in on every answer script before issuing the script to the examiner for examination in order to prevent the examiner or anybody to know the name of the particular candidate. There has been a chance of malpractices in out-tine the number so given bv any examiner obtained by 'X' candidate in the name of the 'Y' candidate. It has alsobeen stated that the Government of West Bengal in Bengali Newspaper as well as in the English Newspaper published a notification under the Heading 'Notification regarding admission to Engineering. Medical and Technological Degree Colleges' to the effect that students securing 50% marks in the said examination would be listed in the merit list apart from candidates belonging to Scheduled Castes and Scheduled Tribes whose names would be listed on securing 40% marks. The said notification was annexed as annexures 'H' and 'I' of the affidavit. It has been pleaded that in a competitive examination this sort of fixation of marks was not necessary and it shows a mala fide act on part of the authority concerned for conducting the examination and publishing the list of successful candidates.
7. Another supplementary affidavit in support of this writ application hag been sworn by Sri Gunadhar Maity, one of the added petitioners on 9th August, 1982 and filed on that day. It has been stated that the deponent appeared in the said Joint Entrance Examination of 1982 conducted by the West Bengal Board of Examination, in, Engineering, Medical and Technological Degree Courses. The list of successful candidates was hung up in the notice Board of Medical College, Calcutta. The relevant copies of the list wherein the deponent's name appeared has been annexed as annexure 'N' series to the affidavit. It has been stated that, in the said list that has been published the petitioner's name appears against serial No. 341 against his registration No. M/CAC-832. It has been further stated in paragraph 4 of the said supplementary affidavit that while the deponent went to submit the prescribed forms for admission, he was told that his position was 741 as per another merit list. In the receipt his serial No. 341 was first written and thereafter deleted and the No. 741 has been inserted in his place. A xerox copy of the receipt is annexed hereto and marked by letter 'O' of the said affidavit, It has been stated in paragraph 5 that he brought this matter to the notice of the authority concerned of Central Selection Committee receiving the application form for admission and he was advised to make a written representation to the Hon'ble Health Minister, State of West Bengal, through the Chairman, Central Selection Committee ofJoint Entrance Examination. The deponent has, accordingly, made a written representation a copy of which has been annexed and marked with letter 'F' to the said affidavit.
8. Another supplementary affidavit has been sworn by Sukhendra Nath Chatterjee, the added petitioner on 6th August, 1982 and the same has been filed on that day. It has bean stated in the said affidavit in paragraph 3 that the son of the deponent, Sri Proseniit Chatterjee bearing Roll No. C/How-203 appeared in the Joint Entrance Examination, 1982 at Model School Centre within campus of Shibpur B. E. College. It has been stated that the student bearing Roll No. C/How-205 had his seat very near the seat of C/How-203. On the second day of the examination and in particular during second session the candidate bearing Roll No. C/How-205 left the hall just after one hour and the said candidate did not appear at all in his usual seat on the last day relating to the examinations of English and Mathematics. It has also been stated in the paragraph 8 of the said affidavit that in the 8th July, 1982 issue of Dainik Basumati a notification by State of West Bengal regarding the marks for qualifying candidates to be obtained by the candidates for being enlisted in the list of successful candidates in order of merit was published. It has also been stated that the names of candidates who have sot below 50% marks also appeared in the list and the Roll No. C/How 205 also appears in the list of successful candidates in the Engineering Stream.
9. An affidavit in opposition has been sworn by Dr. Arun Kumar Seal, the Principal of Bengal Engineering College, Sibpur and also the Chairman of the West Bengal Board of Examination for admission to Engineering, Medical and Technological Degree Colleges have been filed on behalf of respondents Nos. 3 and 4 on 10th August, 1982 against the issuance of the Rule and extension of the interim order. It has been stated in paragraph 3 of the said affidavit that on 2nd March, 1982 under a memorandum addressed by the Deputy Secretary to the Government of West Bengal, Education Department communicated to the Secretary to Government of India, Ministry of Scientific Research and Cultural Affairs, that scats for the purpose of admission into technical institutionshad been pooled in response to the letter No. F.21-72/61-T dated 11th January, 1962 by the Secretary to the Government of India. It was stated that except for the Jadavpur University, all other technical institutions, namely. Bengal Engineering College, Sibpur. Regional Engineering College. Durgapur and Jalpaiguri Engineering College had agreed to have a joint admission test that year to be conducted by a Board constituted with the heads of those institutions or their nominees and a representative of the Education Department. It was pointed out that the Board would invite applications from all students seeking admissions to the various Engineering Colleges charging fees at prescribed rates and will conduct a written admission test in the prescribed manner. The results of the written admission test would be forwarded to the Colleges concerned which will apply their own Rules for the purpose of final selection of candidates. A copy of the said memorandum dated 2nd March, 1962 has been annexed as Annexure 'A' to the said affidavit. It has been further stated herein that since the session of 1972-73, the Board has been directed by the Governor to hold Joint Entrance Examination for selecting candidates for admission to the Pre-medical Course in Dental and Medical Colleges in West. Bengal and a copy of the communication of the order is annexed hereto and marked 'C (1)'. On 7th July, 1981, the Board was renamed as The West Bengal Board of Examination for admission to Engineering. Medical and Technological Degree Colleges and was re-constituted with the additional inclusion. Copy of this order has been annexed as annexure 'D' to the writ application. It has been stated in paragraph 9 of the said affidavit that being entrusted with the conduct of Joint Entrance Examination for admission to Engineering, Medical and Technological Degree Colleges, the Board framed certain Rules for the Joint Entrance Examination. 1982, copies of which were supplied to all candidates along with the application forms for applying for permission to appear at that examination so that it might not be said that the candidates for admission to the said degree colleges were not aware of the Rules for Joint Entrance Examination. A printed copy of these Rules has been annexed as annexure-E. It has been stated in the said rules thatas regards the admission to Medical Colleges concerned it would be through Central Selection Committee. C/o. Medical College, Calcutta and selection tor admission will be judged on merit in the Joint Entrance Examination and subject to passing the qualifying examination which was the Higher Secondary Examination. It has also been stated therein that as regards admission to Bengal Engineering College and tha Jalpaiguri Government Engineering College and the 4 Technological degree Colleges in the State of West Bengal it was provided that, after the publication of the results of the Joint Entrance Examination the application form would be given from the College to qualified candidates on production of the Admit Card of the Joint Entrance Examination. The rules gave the programme for Joint Entrance Examination in 1982 and listed the places of examination. The Rules also provided that the Board was in no way responsible for admission to constituent Colleges and that the Board only provided the results of the Entrance Examination to the constituent colleges and that the Board never published the result. It was also made clear that the Board would not communicate the result to any individual candidate and did not have any provision for post-publication scrutiny and review and no such application for post-publication scrutiny and review would be entertained. It was also provided therein that the Board was not responsible for admission to constituent colleges and the Board only provide the result of Joint Entrance Examination for admission to the constituent colleges and the Board would never publish the result. After the examinations are held, the marks are tabulated by different tabulators who are teachers of Technical Degree Colleges and the merit list was prepared on the basis of the total intake to the Engineering, Medical and Technological Degree Colleges as well as on the basis of past experience of candidates not joining or not continuing after admission. In sub-paragraph (5) of paragraph 11A it has been stated that the answer scripts processed by tearing off the top-sheets bearing Board Regulation number ACode No. is given to the top sheets as well as to the answer scripts to maintainlinking. This is done to avoid disclosure of the identity of the candidates. The packed answer scripts are given to theexaminers after a meeting with the Head and Co-head Examiners to formulate uniform instructions to be followed by all the examiners. The examined answer scripts along with marks (against script No.) are received by the Board and finally given to the Head Examiners. The scrutinisers do their work as per instructions given bv their Head and Co-head. Examiners under their supervision. Thereafter marksheets are given to the Board. It has been further stated in Sub-paragraph (9) of Paragraph 11A that after due checking and summing up, a merit list showing position of candidates in order of merit is prepared. The lists contained only a few number of candidates keeping adequate coverage to the admission requirements with, intake of the constituent colleges. These, after due consideration of the Board and approval, are given to the Constituent Colleges. It has also been stated that the Board after considering the results approved them and cyclostyled copies of the said compilations of the results were sent to the Constituent Colleges on 8th July, 1982. In paragraph 18 it has been denied that the first result of the Joint Entrance Examination was published on 30th June. 1982. It has also been stated that the Board never publishes results, that the Board only provides a list of candidates in order of merit to the Constituent Colleges in order to be admitted in order of merit. It has also been stated that the question of publication of lists of successful candidates and giving their detailed marksheets do not arise. It has also been stated that a meeting of the Board was called on the 30th June, 1982 and item No. 5 of the agenda of the said meeting was to consider the results of the Joint Entrance Examination. 1982, for admission to Engineering, Medical and Technological Degree Colleges. This item was deferred as the result was incomplete. It has been stated that the Board asked the Confidential Sub-Committee to finalise the result and place it at the adjourned meeting to be held on 7th July, 1982. At the adjourned meeting held on 7th July, 1982, the Board considered the results and approved the same. The results were sent to the constituent colleges on 8th July, 1982. Inparagraph 23 of the said affidavit it has been stated that no selective grace mark has been given to any candidate leading to discrimination. It has been furtherstated that the results finalised and placed by the Confidential Sub-Committee were approved by the Board at its meeting on 7th July, 1982. It was not necsessary to obtain any consent of the Examiners as such or any approval of the authorities, In paragraph 26 it has been denied that there has been any discrepancy and unfairness, as alleged. It has also been stated that under the rules the results cannot be reviewed. There was an offer at the time of hearing on behalf of respondents 2 and 3 without prejudice to their rights and contentions that the answer scripts of the petitioner No. 2 would be reviewed by other examiners and that offer was made in spite of the fact that, under the rules no review could be granted. But that offer was not accepted by the petitioners. In paragraph 28 it has been further reiterated that no selective grace mark has been given to any candidate leading to discrimination. The results finalised by the Confidential Sub-Committee were approved by the Board at its meeting on 7th July, 1982. It has also been denied that there has been any discrimination in tabulation of marksheets and in not including the name of the petitioner No. 2 in the merit list of candidates or that attempts are being made to destroy relevant papers as falsely alleged. The averments in paragraph 23 of the said affidavit has been affirmed as true to the knowledge of the deponent whereas the averments in paragraph 28 of the affidavit have been affirmed as submissions of the deponent.
10. A further supplementary affidavit of facts on behalf of respondents Nos. 3 and 4 has been filed on 17th August, 1982 and the same has been sworn bv Dr. P. K. Roy, Member Secretary as well as Officer-in-Charge of the West Bengal Board of Examination for admission to Engineering. Medical and Technological Degree Colleges against the supplementary affidavit affirmed by Sri Sukhendra Nath Chatterjee dated 6th August, 1982. It has been stated in paragraph 2 of the said affidavit that the allegations made in the said supplementary affidavit to the effect that the candidate bearing registration No. C/How-205 left the hall just after one hour on the second day of the examinations and particularly during second session and that the said candidate did not appear at all in usual seat on the last day relating to theexaminations of English and Mathematics are all false and the said candidate bearing registration No. C/How-205 whose name is Subrata Chatteriee appeared in all the examinations, namely,Biological Sciences held on 24th April. 1982 and Chemistry and Physics on 25th April, 1982 and English and Mathematics on 26th April, 1982. It has also been stated in paragraph 3 of the said affidavit that the student bearing Registration No. M/CAC 832 was shown as placed in the merit list in the position 341 in the Zonewise merit list of the Medical Group. It has been stated that there was typographical error and the merit position was shown in the merit list as 741. It has been stated further that the Board issues three compilations (1) a Block Merit list containing registration numbers of the candidates included in the merit list without showing the merit position, (2) Zonewise list showing registration numbers of candidates who have secured a merit position and showing also that merit position, (3) a merit list prepared strictly according to merit in descending order from the 1st position downwards showing such merit position and registration number of the holder of that position. It has also been stated that the results have been compiled in three lists and on 30th June, 1982 only the block merit list was ready. Accordingly, the Board did not consider the results on 30th June, 1382 and consideration of results was deferred till 7th July, 1982. By that date all the three lists of the results were ready and the Board approved the same at its meeting on 7th July, 1982. The averments made in paragraph 3 has been affirmed as derived from records which the deponent believes to be true and averments in paragraph 4 has been affirmed as true to the knowledge of the deponent.
11. Another affidavit in opposition sworn by Dr. P. K. Hoy on behalf of respondents Nos. 3 and 4 has been filed on I0th January, 1983. It has been stated in paragraph 7 that the deponent deny that the Board has not been properly constituted and/or that its constitution was illegal and invalid. It has also been stated therein that the composition at the Board was settled by order No. 164-Edn (T)/T-6E-1/71 dated 18th February, 1972 and lastly renamed and re-constituted on 7th July, 1981 as the West Bengal Board of Examination for admission to Engineering, Medical and Technological Degree Colleges with 19 members. It has been reiterated in paragraph 8 that the Board is in no way responsible for admission of students to the constituent colleges. The Board only holds the test, sends the list of candidates in order of merit to the constituent colleges which in their turn, admits students according to their own practice, procedure and regulations. It has also been stated in paragraph 11 (a) that the examination is time-bound with specific purpose of admission based on comparative merit, open provision for review will only destroy the system as majority of eliminated candidates may seek for it. effectively repeating the procedure and jeopardising the normal start of session. Further the process of shuffled coding of scripts, to conceal the identity of candidates to examiners makes the retrieval of scripts extremely difficult and time consuming. It has also been stated that the results were communicated to colleges only once on 8th July, 1982. The allegations of first bunch and 2nd bunch of results are false. It has been denied in paragraph 14 that there has not been any fair examination of the answer scripts of the students including the petitioner No. 2 or that there is discrimination in tabulation of marks or in a communicating the merit list of candidates. It has also been stated that no selective grace mark has been given to any candidate leading to discrimination. It has been further reiterated that the results finalised and placed by the Confidential Sub-Committee were approved by the Board at its meeting on 7th July, 1982. It was not necessary to obtain any consent of the Examiners as such or any approval of the authorities. It is not necessary to state the other averments made in the said affidavit as the same are reiteration of the statements made in the affidavit in opposition sworn by Dr. Arun Kumar Seal, respondent No. 4.
12. Another affidavit in opposition on behalf of respondents Nos. 3 and 4 has been sworn by Dr. P. K. Roy, Officer-in-Charge of the West Bengal Board of Examination on 31st January, 1983 against the supplementary affidavit sworn by Nirupam Ghosh. In paragraph 4 of the said affidavit it has been stated that there is no scope for separate examination for students who intend to go in for Engineering Courses and for students for Medical Courses in view of the Govt. order No. 162-Edn (T) dated, Calcutta, the 17th February, 1972, annexed as annexure 'E' to the affidavit dated 10th January, 1983. It has also been stated that the Board has allotted 200 marks for Biology and 200 marks for Mathematics and only 100 marks each on the other subjects with an eye to the students who will respectively be going in for Medical Courses and Engineering Courses, students for Medical Courses being given a chance to compete by getting greater marks in Biology and students for Engineering Courses by getting greater marks in Mathematics, it has been further stated that a large number of candidtaes were common candidates, that is, they appeared both in Biology and Mathematics, thus taking a change for both the courses at the same time. It has been stated in paragraph 6 that the instructions to examiners are prepared by the Head Examiners in collaboration with Co-Head Examiners. Model answers, as given by paper-setters, are also taken into account. The answers are finalised at a meeting of all the Examiners who are teachers of the same subject or Examiners thereof in other public examinations. It has been denied that the model answer for 'Osmosis' was wrong or that the instruction for the question No. 3 (a) (i) was not good or correct instruction, other portions of the statements being not relevant are not required to be stated therein.
13. An affidavit in rejoinder was filed on 11th January, 1983 and the same has been sworn by Dr. Jitendra Lal Banerjee, petitioner No. 1. It has been stated in paragraph 7 of the said affidavit that there has not been any proper formation of the Board. No rules have been framed to hold impartial examination on the competitive basis. There is no reason to award grace marks without the consent of the Examiner. Head Examiner, Tabulators and Moderators. There is no disclosure under what circumstances a confidential secretcommittee was formed and under what provisions and under whose authority, it assumed jurisdiction to award Brace mark in a competitive examination. It has been further stated that there was submission from the Bar that the erace marks have been awarded to all candidates uniformly, the affidavit-in-opposition is absolutely silent on this scoreand it has not been explained why the grace marks have been given to all the candidates while the Joint Entrance Examination does not stand for qualifying examination with the significance of 'pass and fail'. It is essentially a competitive examination, award of grace mark itself raises grave suspicion and the alleged rule to refuse review and re-examination are mala fide and motivated. It is further stated in paragraph 8 that the materials on record clearly indicate that the Board itself published the result and there are serious anomalies, contradictions, inconsistencies and arbitrary discrimination. It has also been stated in paragraph 10 that the formation of the Confidential Sub-Committee is unauthorised and unknown in law. It has also been disputed that the Board approved the purported decision of the confidential sub-committee. In paragraph 11 of the said affidavit it has been submitted that the alleged offer of re-examination by fresh new separate sets of examiners was never refused bv the petitioner. All that the petitioners submitted before the learned Appeal Court that without prejudice to their rights and contentions to the main rule itself, such examination of the answer scripts could be made, The Board did not agree.
14. Mr. Sushanta Chatterjee, learned Advocate appearing on behalf of the petitioner has submitted in the first place that the petitioner having made this application in a representative capacity on behalf of the unsuccessful candidates who appeared in the Joint Entrance Examination held in 1982 for admission to Engineering. Medical and Technological Degree Colleges and leave having been granted to proceed with the application under Rule 11 of the Rules framed by this Hon'ble Court in respect of applications under Article 226 of the Constitution in a representative capacity. This application is maintainable in this jurisdiction. It has also been submitted by Mr. Chatterjee that the application whereon this instant rule was issued is maintainable inasmuch as it is a public interest litigation involving the interest of a large number of unsuccessful candidates whose names were not published in the merit list and the challenge that has been made in this application is the same, namely, that the West Bengal Board of Examination has not been properly constituted and therehas not been a proper assessment of the answer scripts and also tabulation of marks and there has been irregularity and illegality in the matter of conducting and publishing the results of the examination-in-question. This application is therefore maintainable. Several decisions have been cited at the bar bv Mr. Chatterjee in support of his argument. It has been next submitted that there has not been any unusual delay in moving this application and this application is not liable to be dismissed on that ground of delay or laches as has been alleged on the part of the petitioner in coming before this writ court at the earliest opportunity. It has also been submitted that the application is not barred by estoppel and acquiescence as the petitioners had no other alternative but to appear in the said admission test in order to get themselves admitted in the Engineering. Medical and Technological Degree Colleges. It has been next submitted that the formation as well as constitution of the Board of Examination to hold examination for admission to Engineering Medical and Technological Degree Colleges being contrary to the provisions of the Calcutta University Act. The impugned order of the Government constituting the Board and the rules framed thereunder for holding the Joint Entrance Examination for admission to Engineering. Medical and Technological Degree Colleges are wholly illegal, unwarranted and without jurisdiction as the same has been made contrary to the provisions of the Calcutta University Act, 1979 (West Bengal Act XXXVII of 1979). It has been further submitted in this connection by Mr. Chatterjee that the formation of the Board for holding, the said examination on the basis of the Govt. order is illegal and had inasmuch as the exercise of the executive power making the Govt. order is in excess of the provisions of Article 162 of the Constitution of India. The Government order dated 7th July, 1981which entrusted the West Bengal Board of Examination with the duty of selection of candidate's for admission to Engineering, Medical and Technological Degree Colleges has not been followed and/or observed as the act of selection has been Riven to the Central Selection Committee not envisaged in the said Government order, nor any manner or mode regarding the formation of theCentral Selection Committee as well asexercise of the power of the Selection Committee has been laid down therein. It has been further submitted that the rules that have been framed by the Board is contrary to the Government order inasmuch as no power has been conferred on the West Bengal Board of Examination to frame rules laving down the manner of holding examination for selecting candidates. The rules are, therefore, unauthorised and without jurisdiction. It has also been submitted in this connection that the power to select candidates for admission had been conferred on the Board and the Board is not competent to confer that power on the Central Selection Committee or delegate any part of its power to Selection Committee. It has also been submitted that the rules specifically do not provide for any review of the answer scripts and also for giving any opportunity to the candidates to see their answer scripts and as such the rules framed by the Board of Examiners are opposed to the rules of natural justice. It has also been submitted that there has been discrimination in the matter of assessment of answer scripts and giving grace marks which were given only to some selected candidates while excluding others from such benefits, thus treating equals unequally. It has also been submitted that one of the added petitioners Gunadhar Maity whose name duly appeared in the merit list and who was supplied with a form for admission in Medical College by the Central Selection Committee was illegally prevented from getting admission on the plea that there was a typographical mistake in the merit list.
15. Mr. Himangshu Kr. Bose, learned Advocate appearing on behalf of some of the added petitioners have adopted the arguments of Mr. Sushanta Chatterjee and he submitted that the holding of the Joint Entrance Examination for admission both in the Medical, Engineering and Technological streams is bad inasmuch as candidates intending to appear in the test for admission in Medical Colleges are not necessary to appear in Mathematics. Moreover, for such candidates greater consideration is to be made in respect of marks obtained in the Biology Papers whereas in the case of candidates seeking admission into the Engineering Colleges their merit will be judged on the basis of marks obtained by them in Mathematics. Ithas, therefore, been submitted that the holding of the Joint Entrance teat in these two streams is wholly bad.
16. Mr. Arun Prakash Chatterjee, learned Standing Counsel has submitted before this Court that the Government order dated 27th July, 1981 annexed as annexure 'D' to the affidavit-in-opposition sworn by Mr. Arun Kr. Seal, Principal. Bengal Engineering College as well as Chairman, West Bengal Board of Examination on behalf of respondents Nos. 3 and 4 on 10th August, 1982 is not bad inasmuch as this order has been made in exercise of the executive power conferred upon the Government by Article 162 of the Constitution and this order does not go against, or infringe any of the provisions of the Calcutta University Act, 1979. It has also been submitted by Mr. Chatteriee that by this Govt. order the Government prescribed an additional test in order to select candidates on the basis of merit for admission to the Engineering, Medical and Technological Degree Colleges as the number of candidates far exceeds the total number of seats available for admission in the Engineering. Medical and Technological Degree Colleges. It has been submitted further that the minimum qualification that has been prescribed by the Calcutta University for admitting students in the aforesaid streams is not contravened but as the government runs these colleges the government has every right to put the additional hurdle by introducing any test for selecting candidates for admission in these colleges as the total number of seats is far less than the candidates who applied for admission in these colleges. In this connection Mr. Chatteriee has cited some decisions at the bar. It has also been submitted by Mr. Chatterjeethat the formation of the Board which has been made by the aforesaid government order is perfectly valid and the Board was competent to frame rules for providing the manner of holding test for admission in these colleges. The rules that have been made by the West Bengal Board of Examination cannot be assailed as illegal and without jurisdiction inasmuch as to effectually exercise the powers of the Board it is necessaryto frame these rules which are incidental to the exercise of such power. It has been next submitted that by these rules it has been provided that the Board willnot review the results, the Board will not published the results but the Board will merely send the merit lists of successful candidates to the different colleges according to the number of seats to be filled up. The absence of the provisions for evaluation or review does not lead to any civil consequences and as such the question of giving an opportunity of hearing does not arise. The principles of natural justice cannot be invoked in such case. It has also been submitted that the students cannot claim evaluation of papers though they can ask for an inspection of their answer scripts but no such claim has been made and as such this application is without any. substance and it is liable to be dismissed. It has also been submitted by Mr. Chatteriee that there has been proper assessment of the answer scripts and tabulation was made properly and the merit list that was prepared by the Confidential Sub-Committee was placed before the Board at its meeting and the Board duly approved the same at its meeting on 7th July, 1982 The merit list was published on 8th July, 1982 by the Medical, Colleges. Mr. Chatterjee has submitted that there was no publication of the list en 30th June, 1982 for the first instance.
17. Mr. Naranarayan Gooptu, learned Government Pleader who appeared for respondents Nos. 1 and 2 raised certain preliminary objections. The first contention is that this application by the petitioner in a representative capacity is not maintainable as it is not a public interest litigation nor it involves determination of any issue in which a large number of students are interested. It has been next contended that this writ petition is liable to be dismissed as the petitioners have submitted to the terms and conditions laid down in the Rules framed by the Board of examination and they have appeared in the said examination accepting these terms and conditions. They cannot now turn round and after being unsuccessful in the examination they cannot challenge these rules in this writ application. It has been further submitted that the application is not made bona fide. It has been further submitted that the application will fail for non-rejoinder of necessary parties inasmuch as the Universities as well as the Medical Colleges were not impleaded as parties respondents. It has also been submitted that the scriptswere properly valuated and it is a highly disputed question of fact as to whether the answer papers had been duly examined and as such this cannot be agitated in this writ application. It has also been submitted that the Government is competent to issue administrative instructions in a field not covered by legislation. In the instant case there is no averment that any ordinance or statute has been violated or infringed It has been therefore, submitted that this application is not maintainable.
18. Before considering the merits of the submission made on behalf of the respondents it is relevant to consider first the preliminary objection that has been made as to the maintainability of this writ application. It has been submitted that the writ application is not maintainable at the instance of the petitioners on behalf of all the unsuccessful candidates. This submission in my opinion, is totally devoid of merit inasmuch as the subject matter of challenge in this writ application is the legality of the Constitution and formation of the Board by the Government order dated 7th July, 1981 and also the competence of the Board to hold such examination for admission to Engineering, Medical and Technological Degree Colleges when specific provisions have been made in the Calcutta University Act 1979 empowering the University authorities to make regulations, statutes or ordinances for admission of students in these colleges which are undoubtedly affiliated to the Universities. All the unsuccessful candidates along with the petitioners are commonly interested in the subject-matter of challenge. Therefore, in my opinion, this application is maintainable in this jurisdiction. Moreover, this is a public interest litigation and it has been brought by the petitioners on behalf of all the unsuccessful candidates who are aggrieved by the arbitrary manner as alleged in which the answer scripts were examined and tabulation was made and the merit list was published Reference may be made in this connection to the decision reported in : (1982)IILLJ454SC People's Union for Democratic Rights v. Union of India where it has been observed fat :--
'Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or sociallyor economically disadvantageous position are unable to approach the court and the court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the court to such legal injury or legal wrong, court would cast aside all technical rules of procedure and entertain the letter as a writ petition and on the judicial side and take action upon it.'
Similar observation has been made in : 2SCR365 , S.P. Gupta v. Union of India. This application is therefore maintainable. Moreover, it has been observed in the case of N.C. Upadhya v. State of U. P. : AIR1965All356 that joint petition by tenants of houses sought to be acquired is maintainable as petitioners have common cause of action and the right is joint and inseparable.
19. The obiection regarding maintainability of the writ application on the ground of non-impleading of necessary parties namely the Calcutta University and other Universities and also the Medical Colleges is also, in my opinion, devoid of any merit. The subject-matter of challenge in this application is the arbitrary and illegal manner of conducting and publishing the results of the examination held by West Bengal Board of Examination for admission to Engineering, Medical and Technological Degree Colleges and also the legal competence of the Board of Examination to frame rules and to hold the said examination. To determine the said question the West Bengal Board of Examination for admission to Medical. Engineering and Technological Degree Colleges is the necessary and proper party and the same has been impleaded as respondent No. 3 and its Chairman has been impleaded as the respondent No. 4. It appears from the rules that the Central Selection Committee and/or the respective colleges are to call for interview those candidates who have reached qualifying standards for viva voce and medical test. In this ease no Challenge has been thrown to the viva voce and medical test held or to be held by the different colleges concerned or by the Central Selection Committee and as such in my opinion, non-impleading of the medical colleges does not render the application infructuous or bad exposing it to the danger of being dismissed in limine.
20. Another preliminary objection raised on behalf of the respondents Nos.1 and 2 is that there has been unusual delay and laches on the part of the petitioners in moving this writ application before this court and this prevents the petitioners from setting this extraordinary relief by way of issuance of a writ and/or appropriate order or direction from this writ court. This objection is not also sustainable inasmuch as the result of the Joint Entrance Examination was published as has been stated in paragraph 9 of the petition on 30th June, 1982 and the said list was hurriedly withdrawn from publication later on. Subsequently, the list was published on 8th July, 1982. The instant application has been moved on 30th July, 1982. In these circumstances I am unable to hold that this application is liable to be dismissed for unusual delay, more so when it involves a very important question challenging the arbitrary and capricious manner in which without laying down any norms and/or standards marks have been added to the candidates without consulting the Board of Examiners arbitrarily and the merit list was published in a most arbitrary manner seriously affecting the future prospects of a large number of candidates who appeared in the said admission test.
21. Another preliminary objection which deserves consideration is that the application is barred by estoppel and acquiescence inasmuch as the petitioners knowing fully well the rules framed by the West Bengal Board of Examination for admission to Engineering, Medical and Technological Degree Colleges which were supplied to them along with the application forms for appearing at the said test clearly providing that the examination will be held by the Board of Examination in the manner laid down therein appeared in the fact. The petitioners having acquiesced and accepted the terms contained in the said rules appeared in the said examination though there was no compulsion on them to appear in the said examination and so they cannot question the same, After finding that their names did not appear in the selection list published in different colleges in order of merit they have now come to challenge these rules. This cannot be done inasmuch as they cannot approbate and reprobate at the same time. It has also been submitted in this connection that having accepted then rules and acted on the basis of the representations as contained in the saidrules they (the petitioners) cannot now turn round and challenge or question the legality and validity of these rules and also the result declared or sent by the Board of Examination on the basis of the test held by them. Section 115 of the Evidence Act which deals with estoppel provides that when a person by declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor hisrepresentative shall be allowed in any suit or proceeding between himself or such person or his representatives to deny the truth of that thine. It has been rightly contended by the learned Advocate appealing on behalf of some of the candidates. i.e., added respondents that this provision has got no application to the instant case inasmuch as no question of any declaration or representation arise in this case. A student intending to get admission in medical colleges or in Engineering Colleges or Technological Colleges has no other alternative but to appear in the examination held by the West Bengal Board of Examination for admission of students in those colleges. If the student who is desirous of prosecuting studies in engineering or in medical stream does not choose to appear in the said admission test has gotl no other avenue open before him for getting admission in the medical and/orengineering and/or technological colleges and his long cherished hope will never be fulfilled. In such circumstances, there is no question that the petitioners haying been fully aware of the declaration contained in the rules framed by the Board for holding the examination for admission in medical and/or engineering and/or technological colleges and after appearing in the said examination are estopped from assailing the rules and also these rules cannot be, under any circumstances, treated as a declarationor representation as provided in Section 115 of the Evidence Act and any student appearing in the said examination is not estopped from challenging the arbitrary and capricious manner in which answer scripts were examined and evalued and assessed, the tabulation works were made and results were published. The doctrine of estoppel in the facts and circumstances of this case does not apply and this application, in myopinion, cannot be dismissed on thisground. The question of promissory estoppel also cannot arise.
22. The vital question that requires consideration is whether the Government order dated 7th July, 1982 as mentioned in annexure 'D' to the affidavit-in-opposition sworn by Dr. Arun Kumar Seal, Chairman, West Bengal Board of Examination on behalf of the respondents Nos. 3 and 4 on 10th August, 1982 has been validlv made and whether the Board has been validly constituted. To decide this question it is necessary to set out hereinbelow the provisions of Article 162 of the Constitution :
'Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws :
Provided that in any matter with respect to which the Legislature of a State and parliament has power to make laws, the executive power of the Stale shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.'
23. This provision thus lays down that the executive powers of the State is co-extensive with the legislative powers of the State. The only limitation is that in any matter with respect to which the legislature of a State or Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred bv this Constitution or by any law made bv Parliament upon the Union or authorities thereof. This article, therefore, provides that the State in exercise of its executive power can make or pass orders in regard to matters with respect to which the State Legisltaure has power to make laws. It is pertinent to refer in this connection the decision rendered by the Supreme Court in the case of Ramjawaya Kapur v. State of Punjab : 2SCR225 . It has been observed by B. K. Mukherjea, C. J., as follows (at p. 554):--
'Thus under this Article, the executive authority of the State is exclusive in respect to the matters enumerated in List II of Seventh Schedule. The authority also extends to the concurrent list except as provided in the Constitution itself or in any law passed by the Parliament. Similarly Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has a power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall toe ordinarily left to the State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.'
'Neither of these Articles contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the State on the other. They do not mean, as Mr. Pathak seems to suggest, it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive as the case may be, can proceed to function in respect to them.
On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.'
24. It has been further observed in the aforesaid cases as follows (at p. 556) :
'The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.'
25. The aforesaid judgment has been relied upon in the case of Naraindas Indurkhva v. State of M. P. : 3SCR624 . In that case, the question arose for determination was that if the State Government in exercise of its executive power could prescribe text books for primary andmiddle schools in the absence of any enactment in this respect. Bhagwati, J. who spoke for the Supreme Court observed, 'But that does not mean that the State Government was not entitled to prescribe these 28 text, books in exercise of its executive power under Article 162 of the Constitution. The executive power of the State Government under Article 162 extends to all matters with respect to which the State Legislature has power to make laws and since education is a subject which falls within Entry II of List II of the Seventh Schedule of the Constitution the State Government could apparently in exercise of its executive power prescribe these 28 text books provided that in doing so it did not trench on the rights of any person. It is well-settled bv the decision of this Court in Ramjawaya v. State of Punjab. : 2SCR225 that the State Government can act in exercise of its executive power in relation to any matter with respect to which the State Legislature has power to make laws, even if there is no legislation to support such executive action, but such executive action must not infringe the rights of any person. If the executive action taken by the State Government encroaches on any private rights, it would have to be supported by a legislative authority, for under the rule of law which prevails in our country every executive action which operates to the prejudice of any person must have the authority of law to support it, vide paragraph 27 of the judgment of this Court in Bennet Coleman & Co. v. Union of India : 2SCR757 . Similar observation has been made by the Supreme Court in the case of State of M. P. v. Bharat Singh : 2SCR454 . It has been held that all executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Article 358 do not detract from that rule. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of the citizens.
26. Apropos in this context tp refer to the provisions of Article 154 of the Constitution of India which provides that the executive power of a State shall be vested in the Governor and shall be exercised by him either directly orthrough officers subordinate to him in accordance with the Constitution. In Clause 2 (a) of the said Article, it has been further provided that nothing in this Article shall be deemed to transfer to the Governor any function conferred by any existing law on any other authority. It has also been provided in Clause 2 (b) that nothing in this Article shall prevent Parliament or the legislature of the State from conferring bv law functions on any authority subordinate to the Governor. This Article, therefore ciearlv enjoins that the Governor is empowered to exercise either directly or through officers subordinate to him the executive powers of the State in accordance with the Constitution. The only restrictions imposed upon the exercise of such power by Clause 2 of the said Article is that the Governor cannot exercise any function which has been conferred on any other authority by the enactment of any existing law and also the legislature of the State or of the Union is not debarred from conferring bv law any function on any authority subordinate to the Governor. The same view has been reiterated in : 1SCR1137 .
27. On a conspectus of the decisions pronounced by the Supreme Court in the aforesaid cases as also of the provisions of Articles 154 and 162 of the Constitution of India the position is now well settled that the executive power of the, State though extends to matters with respect to which the State Legislature has power to make laws, yet the limitation to the exercise of such executive power by the Government are twofold; first, if any Act or law has been made by the State Legislature conferring any function on anv other authority, in that case the Governor is not empowered to make any order in regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create anv embargo for the legislature of the State from making and/or enacting anv law conferring functions on any authority subordinate to the Governor, Judged by this test in the instant case, the impugned orders made by the Government dated 17th February, 1872 and 7th July, 1981annexed as annexures 'C(1)' and 'D' to the affidavit-in-opposition sworn on 10th August, 1982 by Dr. Arun Kumar Seal, Principal, Bengal Engineering College. Shibpur and also the Chairman of the West Bengal Board of Examination for admission to the Engineering, Medical and Technological Degree Colleges on behalf of the respondents Nos. 3 and 4 cannot have any legal effect in view of the fact that the Calcutta University Act, 1979 (West Bengal Act XXXVIII of 1979) had been passed by the State Legislature and the same was published in the Calcutta Gazette on 31st December, 1979. The preamble of the Act provides that the Act has been introduced in order to reconstitute the University of Calcutta to enable it to function more efficiently as a University encouraging and providing for instruction, teaching, training and research in various branches of learning and courses of study, promoting advancement and dissemination of knowledge and learning, and extending higher education, to meet the growing needs of the society etc. The medical college as well as the engineering and technological colleges in question are undoubtedly affiliated to the University of Calcutta. Section 17 of the said Act specifies the authorities of the University which amongst others includes the Council for Undergraduate studies. Section 25 of the said Act states that the Council for Undergraduate studies shall include within 'it amongst others; (1) the Council for undergraduate studies in medicine, dental science etc., (2) the Council for undergraduate studies in engineering and technology. The mode of constituting these Councils have been specified in Sub-section (2) of Section 25. Section 26 of the said Act, specifies the powers and duties of the Council for undergraduates studies. Clauses (iv), (xvi) and (xi) of Section 36 which are relevant for the present purpose are set out hereunder :--
(iv) to fix the last date of admission of students to different courses of studies and the date of commencement of examinations in consultation with other Councils for undergraduate studies:
(vi) to hold an