versus

10. In Kanpur University v. Samir Gupta: (1983) 4 SCC 309, the Supreme Court affirmed the decision of the Allahabad High Court, whereby relying on the views of experts, the court had found merit in the complaints of the students of Kanpur University in respect to the answer key. In that case, the Supreme Court held as under: “15. The findings of the High Court raise a question of great importance to the student community. Normally, one would be inclined to the view, especially if one has been a paper-setter and an examiner, that the key answer furnished by the paper-setter and accepted by the University as correct, should not be allowed to be challenged. One way of achieving it is not to publish the key answer at all. If the University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. But that is not a correct way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students would have had to suffer the injustice in silence. The publication of the key answer has unravelled an unhappy state of affairs to which the University and the State Government must find a solution. Their sense of fairness in publishing the key answer has given them an opportunity to have a closer look at the system of examinations which they conduct. What has failed is not the computer but the human system.

16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.

17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the medical colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those textbooks support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.”

11. In Sumit Kumar v. High Court of Delhi: 2016 SCC OnLine Del 2818, a Coordinate Bench of this Court had referred to the earlier decisions as well as the decision of the Supreme Court in Kanpur University v. Samir Gupta (supra) and observed as under:

12. In a later decision in Kishore Kumar v. High Court of Delhi: W.P.(C) 9425 of 2018, decided on 29.10.2018, a Coordinate Bench of this Court had further narrowed down the scope of judicial review. Merely because some answers or questions are found to be inapt, the same would not warrant judicial intervention. Unless ex-facie arbitrariness is established, the court would not interfere with the decision of the examination body. The relevant observations made by the court are set out below: “26. As far as the attack to the answer keys on the merits goes, possibly, the court may on a close analysis conclude that on one or two questions, the answer keys were inapt. However, this has to be weighed in with the fact that the court exercises judicial review jurisdiction. Absent demonstrably facial arbitrariness, its approach should be circumspect and deferential (to the examining body)…..”

13. The law in relation to the scope of judicial review of decisions relating to challenges to answer key is reasonably wellsettled. Unless it is found that there can be no vestige of doubt that the answer key is incorrect, the court would refrain from interfering with the decision of the examination authority.

14. It is also well-settled that merely because the court is of prima facie view that the answer to the question is incorrect, the same would not necessarily warrant any interference in the examination process. A fair degree of play in the joints is provided to the examining body in deciding the answer which, according to them, is the correct answer.

15. Unless the court finds that the decision of the examining body is capricious, arbitrary, or actuated by malice, it would not be apposite for the court to exercise judicial review. The decision of the examining body cannot be a subject matter of judicial review on merits unless the same is palpably erroneous or is alleged to be actuated by malice or is capricious and arbitrary.

16. A fair procedure has been adopted by the appellant in the present case by inviting objections to the answer keys and having the same examined by experts. Such exercise having been carried out, the decision of experts does not warrant a judicial review on merits.

17. A Division Bench of Kerala High Court in the case of H. Nowfal and Ors. v. Kerala Public Service Commission and Anr.: 2014 SCC OnLine Ker 12162 held that in cases where such procedure is adopted, the scope of judicial review would be further restricted to cases where the action of the expert body, if afflicted with palpable error or where it is found that the experts have not acted in a bona fide manner. It was held as under: “11. What is a feature in the present case, which appears to us to distinguish it from the cases which are decided, is the procedure which is already put in place by the Public Service Commission. The judgments of the Supreme Court relied on by the learned counsel for the petitioner were rendered in a situation where the university and in one case the employer, conducted the examinations. There were complaints against the same which reached the courts. The courts took the views of the experts. It is relying on the decision of the experts, which were found convincing to the courts, that the courts granted relief. On the other hand, in these cases, as we have already noticed, the procedure evolved by the Commission pursuant to the direction of this court was to publish provisional key, invite objections, get them scrutinised with the help of experts and act on the decision of the experts. Therefore this is precisely what the courts have done in the decisions which were relied on by the learned counsel for the petitioners. What the petitioners would seek is a review of even the decision of experts to whom the matter is referred by the Commission under a procedure which is evolved. That, we think, may involve the court, which exercises judicial review, to sit in judgment over the experts and, more importantly, attract criticism that it is doing a review as an appellate court will do. At this juncture, it is very apposite to note that the petitioners do not have any case that the persons to whom the matter was referred by the Commission, seeking their opinion as experts, are not experts or they were in any manner actuated by malice. This means that the Commission took care by first publishing the provisional key, inviting objections, getting the objections scrutinised by the body of experts who must be treated as having acted bonafide. Further the result of that exercise, if it is sought to be subjected to further scrutiny, for the purpose of the exercise of judicial review, we would think that it may invite the criticism that the said exercise would be an appellate power exercised in disguise as judicial review. It is true that the Tribunal took the view that the Commission already having followed a procedure which is fair and which involved the scrutiny of the objections by the Commission with reference to experts, the matter did not require interference. The Court or Tribunal doing judicial review should not reduce the exercise of judicial review power to that of appellate review and enter findings on facts for which it may not possess the expertise. If a view from among two views of the matter is taken then if it defers to one of the views this court does not shun its jurisdiction. On the other hand it would be a restrained exercise of its discretion which would still be in exercise of its jurisdiction keeping it within the four walls of its jurisdiction.”

18. There is also merit in Ms Dolo’s contention that the candidates were required to select the most apposite answer from the set of four options. Question No. 80 was very specific and required the examinee to name the person who analysed the naturalisation of connotative myths. NTA has admitted that there was a minor spelling error, and instead of ‘Roland Barthes’, the answer sheet reflected ‘Ronald Barthes’. However, given that the candidates were to select the closest option, the minor spelling error in the first name of the well known critic, would make no difference. This error is not of nature that justifies any judiucal intervention.

19. It is also significant to note that the examinations were conducted to determine the eligibility for lecturership in order to ensure a minimum standard for entrance into the teaching profession. There is merit in the contention that such examinees could not be heard to state that they got confused because of a minor spelling error as mentioned above.

20. It cannot be argued that the respondent got confused to the extent that he selected ‘J. Hillis Miller’ (option 3) instead of ‘Ronald Barthes’ only because ‘Roland’ was misspelt as ‘Ronald’. We are unable to concur with the view of the learned Single Judge that that the minor spelling mistake had any propensity of causing confusion in the minds of examinees. The the learned Single Judge fell in error in interfering with the decision of NTA and allowing the writ petition.

21. The decision of NTA to reject the respondent’s objection, even though there was a minor spelling mistake in the correct option, is not capricious, arbitrary or unreasonable and is thus not amenable to judicial review.

22. In view of the above, present Appeal is allowed and the impugned judgment dated 09.12.2019, passed by the learned Single Judge in Writ Petition (C) No. 8664/2019 is set aside. AMIT MAHAJAN, J VIBHU BAKHRU, J MARCH 16, 2023 “SK” /KDK