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PETITIONER: ABHIJIT SEN & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT06/12/1983

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1402            1984 SCR  (1) 983  1984 SCC  (2) 319        1983 SCALE  (2)912

ACT:      Constitution of India 1950, Articles 226 & 136.      Professional colleges-Admission  to-Entrance test held- ’Key answer’  supplied by  paper-setter to  a question found wrong according to acknowledged text-book-Student whether to be penalised  for not  giving an  answer, which accords with ’key  answer’-Court  whether  entitled  to  determining  the correct  answer-Student whether entitled to admission.

HEADNOTE:      The appellants  who were  candidates seeking  admission into the  M.B.B.S. Medical  Colleges in  the State, in their writ petitions before the High Court, assailed the procedure of  implementing  and  carrying  out  the  ’Multiple  Choice Objective Type Test’ while holding the ’Combined Pre-Medical Test’ for admission.      They alleged  that the  ’key answer’  supplied  by  the Paper sctter  to question No. 31 in the Zoology Paper (being Alternative No, 2);      "31. in  the vertebrates  Oxygen is  translated by  the           blood as follows:      (1)  Absorbed   (Typographically   wrongly   typed   as           Absorbed) to the surface of R.B.C.      (2)  Combined with Hemoglobin to form a complex,      (3)  Dissolved in Plasma,      (4)  In all the above ways.’’ was wrong  and incorrect  and that  their answer (by ticking Alternative No.  4) was  the  correct  answer  according  to recognised text-books.  They therefore  contended that  each one of  them was  entitled to  an addition of 4-marks (three marks for  giving the  answer, plus  1 mark  which had  been wrongly deducted  by treating their answers as wrong) and if such addition  of 4-marks  was made  each one  of  them  was entitled to get admission.      It was  contended by  the appellant  in  the  connected appeal that  with regard  to question  No.  100  in  Zoology Paper: 984      100. A scount bee finding a food source communicates to           the other  worker bees  the location  of the  food           source-      (1)  Can not communicate the direction of food source ?

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    (2)  Can  communicate  the  direction  of  food  source      through its round dance ?      (3)  Can  communicate  the  direction  of  food  source      through its tail wagging dance ?      (4)  Can  communicate  the  direction  of  food  source      through its  round dance  as well as tail wagging dance      ?" the  ’key-answer’   supplied  by  the  paper  setter  (being Alternative No.  3) was  clearly wrong  incorrect while  the answer given by the appellant (by ticking Alternative No. 4) was the  correct answer  according to  recognised text-books and therefore  she was entitled to an addition of four marks (3 for  giving the  correct answer,  plus 1  mark which  was wrongly deducted by treating her answer as incorrect) and on this basis she would be entitled to get the admission.      The University  rejected their cases and the High Court dismissed their writ petition.      In the appeals to this Court, ^      HELD :  1. If  the ’key-answer’  (i.e. the answer which the paper-setter  has supplied  to  the  University  as  the correct answer  and which has been fed into the Computer) is shown to  be demonstrably  wrong, that is to say, such as no reasonable body of men well-versed in the particular subject would regard  it as  correct and  if the  answer given  by a student is  correct if  regard be  had to acknowledged text- books or  books which  the student  was expected to read and consult before  appearing for the test it would be unfair to penalise the  student for not giving an answer which accords with the  key-answer’ that is to say with an answer which is demonstrated to be wrong.      In the  instant cases,  both sides have relied upon the passage at page 547 of the text-book ‘Medical Physiology’ by Author C.  Cuyton ;  which on  careful reading  reveals that both the  ‘key-answer’ supplied  by the paper-setter as well as the  answer given  by the  two appellants will have to be regarded as  wrong. Neither  of the  appellants is therefore entitled to  an addition  of 4-marks  as suggested  on their behalf. [988C, H, 989D]      2. The  question set  by the paper-setter viz. question No. 100  mokes no  reference whatsoever  to any  range  with reference to  which the  candidate is called upon to give an answer and in the absence of any reference to the range, 985 according to  the passages  in the  text-books : ‘Biological Science’ by  William H.  Gregary and  Edward H.  Goldman and ‘Special Organisation  on Honey-bees’  by  Dr.  V.  Fresser; Alternative No.  4 would  be  the  correct  answer  and  not Alternative No. 3 which had been supplied as ‘key-answer’ by the paper  setter. It  is a  case of a tricky question being set by  the paper-setter  where one of the essential aspects namely the  range has  not been  indicated anywhere  in  the question. The  appellant ticked  Alternative No.  4 as being the  correct  answer  to  the  question.  The  appellant  is entitled to  get admission  to the  M.B.B.S. course.  [989E, 990A, C,E,H, 991A]      Kanpur University  & Ors. v. Samir Gupta and Ors [1984] 1 S.C.R. 73 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal Nos. 4116 to 4119 of 1983.      From the  Judgment and  Order dated 24th February, 1983

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of the High Court of Judicature at Allahabad (Lucknow Bench) at Lucknow in W.Ps. No. 7297, 4774. 5214 of 1982 and      R.K. Garg, and A. K. Gupta, for the Appellants.           rs. Shobha Dikshit for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  Civil Appeal Nos. 4092-4114/83 (Kanpur University &  Ors. v.  Samir Gupta  & Ors.) and Civil Appeal Nos. 4068-4091/83  (State of  U.P. &  Ors. v.  Samir Gupta & Ors.(1) were disposed of by this Court by its Judgment dated September 27,  1983. The  instant  appeals  by  four  failed students though  connected with  the aforesaid  appeals  and arising out  of a common judgment of the Allahabd High Court dated 24-2-1982  could not, for some reasons, be disposed of along with  the aforesaid  appeals and have been assigned to this  Bench.   The  defects,   that  emerged  on  record  in implementing and carrying out the ‘Multiple Choice Objective Type Test’ while holding a ‘Combined Pre-Medical Test’ which was  done  pursuant  to  the  orders  issued  by  the  State Government in  that behalf  under s.  28 of  the U.P.  State Universities Act,  1973 by the Kanpur University in 1982 for giving admission  to the  7-Medical Colleges in the State of Uttar Pradesh for the d983 session, have been        pointed out, elaborately  discussed and commented upon by this Court in its    judgment dated September 27, 1983 and therefore it is unnecessary  for us  to dilate  on those  aspects of  the matter again while disposing 986      of the  instant appeals.  Suffice it  to say  that this Court has  expressed   therein a  clear and  categorial view that if  the ‘key-answer’  (i.e. the answer which the paper- setter has  supplied to the University as the correct answer and which  has been  fed into  the Computer)  is shown to be demonstrably wrong.  that is  to say,  such as no reasonable body of  men well  versed in  the particular  subject  would regard it as correct and if the answer given by a student is correct if regard be had to acknowledged text-books or books which the  student was  expected to  read and consult before appearing for  the test  it would  be unfair to penalise the student for  not giving  an answer  which accords  with  the ‘key-answer’  that  is  to  say  with  an  answer  which  is demonstrated to  be wrong.  The contentions  raised  in  the instant appeals  will have  to be  considered  within  these parameters indicated in the judgment.      At the  outset it  may be  stated that Civil Appeal No. 4116/83 (filed  by Appellant  Abhijit Sen)  and Civil Appeal No. 4118/83 (filed by Appellant Satyendra Vikram Singh) were not pressed  before us  and have  to  be  dismissed.  Kumari Shivani Aggarwal  and Kumari Sunita Khare (the appellants in Civil Appeal  No. 4117  & 4119  of 1983) have challenged the University’s decision  which decision has been upheld by the Allahabad High  Court) of  refusing them  admission  to  the M.B.B.S. course  in  any  of  the  seven  Medical  Colleges. Learned Counsel  appearing for them contended that the ‘key- answer’ supplied  by the  Paper setter to question No. 31 in Zoology  Paper  (being  Alternative  No.  2)  was  wrong  or incorrect and  the answer  given by  both the appellants (by ticking Alternative  No. 4) was the correct answer according to recognised  text-books and  therefore each  one of  these appellants was  entitled to  an addition  of 4-marks  (three marks for  giving correct  answer plas 1 mark which had been wrongly deducted  by treating their answers as wrong) and if such addition  of 4-marks  was made each one was entitled to get admission. In the case of Kumari Sunita Khare (appellant in Civil  Appeal No.  4119/83) her  Counsel raised a further similar contention  with  regard  to  Question  No.  100  in

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Zoology-paper as  according to him the ‘key-answer’ supplied by the  paper-setter (being  Alternative No.  3) was clearly wrong or  incorrect while the answer given by that appellant (by ticking  Alternative  No.  4)  was  the  correct  answer according to  recognized text  books and therefore so far as she was  concerned even  if her  contention with  regard  to Question No.  31  was  not  accepted  she  was  entitled  to addition of  four marks  (3 for giving correct answer plus 1 mark which  was wrongly  deducted by  treating her answer as incorrect) in regard to Question No. 100 and 987 even on  this basis  she would be entitled to get admission. Counsel for  the respondents  did not dispute before us that if the two appellants or either of them is found entitled to an addition  of four marks as suggested on their behalf they will have  to be  given admission  to  M.B.B.S.  course  but counsel disputed  the validity  of the  contention urged  on behalf of  the appellants  that ‘key-answer’ supplied by the paper-setter to  either Question  No. 31 or Question No. 100 in Zoology-paper  was wrong or that the answers furnished by the appellants  were correct.  Counsel urged  that since the court was  embarking  upon  a  course  of  finding  out  and determining  the   correct  answer   having  regard  to  the recognised text-books  or authoritative books on the subject it would  be immaterial whether the ‘key-answer’ supplied by the paper  setter was  found  to  be  wrong,  not  being  in conformity with  the correct  answer determined by the Court but the appellants would not be entitled to addition of four marks unless  their answers  were  in  conformity  with  the correct answers found by the court. In other words according to counsel  for the  respondents if  a situation was reached where both  the  answers,  namely,  the  one  given  by  the appellants as  well as  the  ‘key-answer’  supplied  by  the paper-setter, were  found to  be wrong with reference to the correct answer  as determined  by the  Court the  appellants should not  succeed. We think there is considerable force in this last admission made by the Counsel for the respondents.      Question No.  31 the  Zoology-paper together  with  the suggested answers reads thus :                "31. In the vertebrates Oxygen is transported           by the blood as follows :           (1)  Absorbed (typographically  wrongly  typed  as                Absorbed) to the surface of R.B.C.           (2)  Combined with Hemoglobin to form a complex,           (3)  Dissolved in plasma,           (4)  In all the above ways." It may  be stated  that in Alternative No. 1 above the first word typed  is ‘Absorbed’  (meaning ‘to  take in’)  which is obviously a typographi- 988 cal or  printing mistake  for the  word ‘Absorbed’  (meaning ‘get attached’  or ‘collect on’) for, grammatically the word ’Absorbed’ would  be followed  by ’in’  and not  ‘to’.  This would also be clear from the word ’the surface’ which follow in as  much as there cannot be any absorbing to the surface. The correct  word is  ’Absorbed’ meaning get attached to the surface or  get collected  on the  surface. It is therefore, clear that  the first  alternative read  correctly would run thus :-  "Absorbed to  the surface  of R.B.C."  Now the key- answer’ supplied  by the  paper-setter was  Alternative No 2 whereas both  the appellants had ticked Alternative No. 4 as the correct  answer. Both sides, for the purpose of claiming that each  one’s answer  is the  correct answer, have relied upon the  following passage  appearing at  page 547  of  the text-book ’Medical  Physiology’ by Arthur C. Guyton, M.D. of

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international repute  under the heading ’Transport of Oxygen in the Blood’:           "Normally,  about   97  per  cent  of  the  oxygen      transported from the lungs to the tissues is carried in      chemical combination  with hemoglobin in the red blood,      cells, and  the remaining  3 per cent is carried in the      dissolved state in the water of the plasma and cells." In our  view on  a careful reading of the aforesaid passage, on which  the both  sides have relied, both the ’key-answer’ supplied by  the paper-setter as well as the answer given by the two  appellants will  have to  be regarded as wrong. The aforesaid passage  clearly shows  that in vertebrates Oxygen is transported  by  the  blood  in  ways  as  given  by  two alternatives namely,  Alternative No. 2 and 3, 97 percent by Alternative  No.   2  and   the  remaining  3  per  cent  by Alternative No.  3 and  there is  no reference whatsoever to Alternative No.  1 as  being one  of the  ways in which such transport takes  place. Counsel  for the  respondents  urged that since 97 per cent of Oxygen was transported in chemical combination with  Hemoglobin in the red-blood cells that was pre-dominant way  in which  the transport  takes  place  and therefore the ’key-answer’ which referred to Alternative No. 2 would  be the correct answer. It is not possible to accept this contention  for the  reason that in the question set it was not  asked as  to what was the pre-dominant way in which Oxygen is transported by the blood and therefore Alternative No. 2  cannot be  said to be the correct answer. In our view both the  Alternatives together  (Alternative No.  2 and  3) would be  the correct answer. Further, since Alternative No. 1 has no where been mentioned in the 989 passage quoted  above as  being one  of the  ways  in  which transport of  Oxygen takes  place the  appellants by ticking Alternative No.  4 which suggested that such transport takes place in all the three ways mentioned earlier which included Alternative No.  1 would  also be clearly wrong. Counsel for the appellants relied upon the words ’and cells’ in the last portion of the passage ("the remaining 3 per cent is carried in the  dissolved state  in the  water  of  the  plasma  and cells") for  contending that  the Alternative No. 1 was also one of  the ways  in which such transport takes place. It is not possible to accept this contention for the simple reason that the  last portion  of the passage on which reliance has been placed  speaks of  3 per  cent  being  carried  in  the dissolved state  in the  water of the plasma and cells while the Alternative  No. 1 speaks of transport by being absorbed i.e. by  getting attached  to  the  surface  of  the  R.B.C. Obviously, therefore,  the inclusion  within their answer by the appellants of Alternative No. 1 as being one of the ways in which  such transport  takes place  was clearly wrong. In this view  of the  matter we do not think that either of the appellants is  entitled to  an addition  of  four  marks  as suggested by  counsel on  their behalf  by reason  of  their answer given to Question No. 31.      Turning to  Question No.  100  in  Zoology-paper  (with which only  the appellant  Kumari Sunita Khare is concerned) that question reads :      "100. A scout bee finding a food source communicates to           the other  worker bees  the location  of the  food           source-           (1)  Can not  communicate the  direction  of  food           source ?           (2) Can  communicate the  direction of food source           through its round dance ?           (3) Can  communicate the  direction of food source

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         through its tail wagging dance ?           (4) Can  communicate the  direction of food source           through its  round dance  as well  as tail wagging           dance ? 990 The  ‘key-answer’   supplied   by   the   paper-setter   was Alternative  No.   3  while   according  to   the  Appellant Alternative No.  4 was  the correct  answer.  In  Biological Science’ by  William H.  Gregory and Edword H. Goldman while dealing with  the ’bee  language’ on  page 391 the following passage occurs-           "......A peculiar  ‘bee  dance’  is  performed  by      returning scouts.  If the  food is close, a round dance      is performed.  If the food is farther than 100 yards, a      special tale  wagging dance is staged. The direction of      the food is also indicated." In the  book ‘Special  Organization’ on Honey-bees by Dr. V. Freser at  page 42  the author  has, while  dealing with the ‘dance language’, given further refinement thus:           "when the  forage is  located within  28 meters of      the colony,  on its return home, the successful forager      performs a ‘tail wagging dance".           "when the  forage is  located 100  meters or  more      away from  nest a  successful forager  performs a ‘tail      wagging dance". From the  above passages of the learned Authors one thing is very clear  that the  range plays  a very  important part in deciding whether  the scout bee or the successful forager on return home  would perform  a round  dance and  according to Gregory and Goldman if the food is close-by a round dance is performed and  if the  food is further than 100 days a tail- wagging  dance   is  performed   whereas  according  to  the refinement given by Dr. Freser if the food is located within 28 metres  a round  dance would  be performed  but if  it is located at  the distance  of 100 meters or more tail-wagging dance is performed. Now the question set by the paper-setter makes no reference whatsoever to any range with reference to which the candidate is called upon to give his answer to the question and  in the  absence of  any reference to the range according to  the aforesaid passages Alternative No. 4 would be the  correct answer  and not  Alternative No. 3 which had been supplied  as ‘key-answer’  by the  paper-setter. In our view it  is a case of tricky question being set by the paper setter where one the essential aspects namely, the range has not been  indicated anywhere in the question. Placed in that situation the  appellant Kumari  Sunita Khare was right when she 991 ticked Alternative  No. 4 as being the correct answer to the question set.      In view of what is stated above only one appeal namely, Civil Appeal  No. 4119/83 of Km. Sunita Khare deserves to be allowed. We  allow it  accordingly with  cost and direct the respondents to  give her admission to the M.B.B.S. course in the 1983  session. The other three appeals are dismissed but there will be no orders as to costs. N.V.K.                                 C.A, 4119/83 allowed.                                    C.A. 4116-1883 dismissed. 992