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PETITIONER: C. TULASI PRIYA

       Vs.

RESPONDENT: A.P. STATE COUNCIL OF HIGHER EDUCATION & ORS.

DATE OF JUDGMENT:       29/07/1998

BENCH: S.P. BHARUCHA, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T BHARUCHA. J.      The order  under challenge  was passed  by  a  Division Bench of the High Court of Andhra Pradesh on 23rd September, 1996. The  High Court  dismissed the  writ petition filed by the appellant finding "no merit in the petition".      The appellant appeared for the Engineering, Agriculture and Medical  Common Entrance  Test(EAMCET) held on 22nd May, 1996, for admissions, inter alia, to medical colleges in the State of Andhra Pradesh for the academic year 1996-1997. The examination commenced  at 2.00  p.m. and  terminated at 5.00 p.m. It  is  the  appellant’s  case  that  she  entered  the examination hall  at  about  1.45  p.m.  She  was  given  an objective type answer paper at about 1.55 p.m. At about 2.20 p.m. an  invigilator came  to her  to obtain  her signature, presumably in token of having received the answer paper. The invigilator then  discovered that  the  appellant  had  been given a ’D’ type answer paper whereas she ought to have been given a  ’C’ type answer paper. The invigilator took the ’D’ type answer  paper away,  discussed what  had happened  with fellow invigilators  and, after  10 minutes  or so, gave the appellant a  ’C’ type  answer paper  to mark.  The appellant had, thus,  two  and  a  half  hours’  time  to  answer  200 questions which,  otherwise, she  would have  done in  three hours. The  appellant answered  170 out  of 200 questions in the time  that was  available to  her.  It  is  an  admitted position that  she secured 160.75 marks, which is 94.555% of 170 marks, for the 170 questions answered.      The day  after the examination the appellant addressed. through her  advocate, a  telegram to  the convener  of  the examination. She  recorded therein  that she  had been given another answer  paper after 40 minutes but no extra time had been granted  to her to answer the same fully inspite of her request. The telegram was followed by a letter, also written through her  advocate, in which the incident afore-mentioned was set  out in  detail. Having  received  no  redress,  the appellant filed the writ petition and prayed that her answer paper should be re-assessed on the basis of 170 questions in two and a half hours’ and for 170 marks instead of 200 marks and for  consequential relief. No reply on oath was filed to

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the writ  petition, but para-wise remarks were submitted. It was conceded in the para-wise remarks that the appellant had been given  a wrong answer paper ’D’ instead of answer paper ’C’ The  para-wise  remarks  stated  that  "immediately  the invigilator has noticed his mistake and changed with correct paper immediately  in as  per the  reports of  the concerned invigilators. The contention of the petitioner that she lost 10 minutes  in exchange  of the  paper is false and far from truth and  not correct.  Actually,  there  was  only  a  few seconds of  the  time  taken  by  the  invigilator  for  the exchange of  the above answer book.......As only few seconds were taken  in exchange  of the  book, no  time  lapses  had occurred  practically."   To  the   para-wise  remarks   the appellant filed  objections and  reiterated  her  case.  She submitted that the answer book which she had been first five and the  answer book  that she  had been  subsequently given should be produced before the High Court.      The High  Court noted  in the impugned order that there appeared to be some lapse on the part of the invigilator. It said that,  according to the appellant, the lapse had caused the  loss   of  half   an  hour   while,  according  to  the authorities, the exchange had been made immediately on being detected. This  required an  investigation into facts, which was impermissible.  If there  had been  a delay  there was a genuine grievance,  but the  appellant, without  protesting, had continued  to answer  and had submitted the answer paper after the  examination was  over. Learned  counsel  for  the appellant submitted to the High Court that a student was not expected to be aware of niceties and lodge a written protest during the  course of  the examination.  The High Court said that it  was not inclined "to enter into such speculations." The High  Court turned  down the  request of learned counsel for the  appellant to call for the answer papers to find out whether they  showed that  a  loss  of  time  had  occurred. Finding no merit in the writ petition, it was dismissed.      In this  Court the examination authorities have filed a counter in  which it  is stated that the fact that the wrong question paper  had been  distributed to  the appellant "was discovered  very  soon  after  the  students  commenced  the examination and  within a few minutes of the starting of the examination, the  correct question book was delivered to the appellant on  which she  has marked  her  response."  It  is further stated  that "the  first answer  script on which the appellant has  marked her response is  not traceable for the reason that  the concerned authorities must have treated the answer script as spoilt document and the same must have been weeded out. As such there is no material available to cross- check the  version of  the appellant.  But in  view  of  the response given  by the  appellant to  all the questions from the beginning  to the  end with  a wide  gap in  between, it cannot  be   said  that   the  appellant  had  suffered  any prejudice........". To  the  counter  is  annexed  a  letter written to  the authorities  by  the  invigilator  concerned pursuant to  their enquiry  with her  dated  10.9.1996.  The invigilator stated:           "As per  the  distribution  of      question papers  the candidate with      H.T. NO.  5107297 has  to be  given      paper C but the candidate was given      a paper  D instead  of paper C, but      immediately I  noticed the  mistake      on  my   going  to  next  seat  and      changed    with    correct    paper      immediately  without  any  loss  of      time i.e., within few seconds."

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    The papa-wise  remarks of  the authorities  before  the High  Court   refer  to   "the  reports   of  the  concerned invigilators". These  reports are  not annexed either to the papa-wise remarks  before the  High Court  or to the counter filed before  this Court,  nor have they been produced here. In this  context it  is to be noted that it became necessary for the  authorities to  write to  the invigilator  on  10th September, 1996,  to inquire  about  the  incident  and  the counter would  appear to  be based  upon  the  invigilator’s reply. The  inquiry was  made almost  four months  after the incident  and   there  is   nothing  to  indicate  that  the invigilator’s reply was based on anything but her memory.      Immediately  after   the  examination  the  appellant’s advocates sent a telegram to the authorities and followed it up with  a letter.  The authorities  could not but have been aware of  the fact  that legal  proceedings were  likely  to ensue. Inspite  of that,  the appellant’s answer papers were not preserved and we have the bland assertion in the counter before this  Court that  they were  not traceable  "for  the reason that  the concerned  authorities must have teated the answer script as spoilt document and the same must have been weeded out".      The counter adds that in the absence of the appellant’s answer books  "there is no material available to cross-check the version of the appellant".      That the  appellant was  in the first instance supplied the wrong answer paper and that it was subsequently replaced by the  correct answer  paper is not disputed. The length of time taken  to  discover  the  mistake  and  to  supply  the replacement is  not state  with consistency in the para-wise remarks filed  by the  authorities before the High Court, in the counter  filed before this Court and in the reply of the invigilator to  the enquiry  made of  her. There  can be  no doubt that  the production  of the  two answer  papers would have indicated  whether or not the case of the appellant was correct but the authorities have preserved the answer sheets though they  well knew  that  the  answer  sheets  would  be relevant. It must be assumed, in the circumstances, that the answer sheets, if produced, would have borne out the case of the appellant  that she  had marked for about 20 minutes her answers on the wrong sheets. The case that the appellant has put forward  seems, in any event, to have the ring of truth. It is  unlikely that  the invigilator would have immediately replaced the  wrong answer  paper that  she had supplied the appellant without  consulting one  or more  colleagues about what she  should do  in the  circumstances  and  this  would ordinarily have taken quite some time.      It is  unrealistic to  expect a  young and,  no  doubt, nervous student  in the midst of an important examination to think of  submitting written  protests there  and then.  The refusal of  the High  Court to interfere on this ground has, regretably, compounded  the injustice done to the appellant. As for  the ground  of disputed  questions of fact, all that the High  Court needed  to see  was the  wrong answer  paper first given  to the  appellant. The number of questions that she had  marked thereon would have indicated whether she was right when  she said  that she had worked on it for about 20 minutes. It  this answer paper could not be produced even at that  stage,   the  High   Court  should    have  drawn  the appropriate adverse inference against the authorities.      In the  circumstances and to do complete justice, it si necessary  to  grant  the  relief  that  is  sought  in  the appellant’s writ  petition and  to direct that the appellant shall be  considered for  admission to  a medical college in the State  of Andhra Pradesh in a seat from the quota of the

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State of  Andhra  Pradesh  for  the  academic  year  1998-99 session upon the basis that she has secured 94.555% marks at the EAMCET.      The appeal  is allowed  accordingly.  No  order  as  to costs.