Full Text
HIGH COURT OF DELHI
Date of Decision: 05th AUGUST, 2022 IN THE MATTER OF:
NATIONAL BOARD OF EXAMINATION ..... Appellant
Through: Mr. Maninder Singh, Senior Advocate with Ms. Ruchira Gupta, Ms. Nancy Shah, Mr. Prabhas Bajaj
& Ms. Ashita Chawla, Advocates
Through: Mr. Adit S. Pujari and Ms. Aparajita Sinha, Advocates.
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The present appeal has been filed under Clause X of the Letters Patent Act, 1865, read with Section 10 of the Delhi High Court Act, 1966, against the Judgement dated 05.07.2021 passed by this Court in W.P.(C) No. 918 of 2021 whereby the writ petition filed by the Respondent herein was allowed.
2. The facts, in brief, leading to the instant appeal are as under: a) It is stated that the Screening Test Regulations, 2002, made by the Medical Council of India (now National Medical Commission) in exercise of its powers under Section 33 of the India Medical Council Act, 1956, instituted the Foreign Medical Graduate Examination (hereinafter referred to as the “FMGE”) 2022:DHC:2971-DB Screening Test which must be taken by any Indian citizen/Overseas Citizen of India (OCI) who has been conferred a primary medical degree from a foreign medical institution, but wishes to be provisionally or permanently registered with the MCI or any State Medical Council on or after 15.03.2002. The FMGE is conducted by the Appellant herein - National Board of Examination (hereinafter referred to as the “NBE”). b) On 04.12.2020, the NBE conducted the FMGE (Screening Test) December, 2020, which is a multiple-choice examination consisting of 300 questions. In order to pass, one needs to score 50% in the examination, and there is no negative marking for incorrect answers. Post-exam review of all the questions on the FMGE Screening Test was conducted between 07.12.2020 and 12.12.2020, and it is stated that no error was found in the same. The results of the FMGE Screening Test were announced on 18.12.2020. c) Representations were made to the NBE alleging that one question was technically incorrect. Pursuant to this, the NBE constituted a five-member Expert Committee on 11.01.2021 to look into the issue. Vide report dated 15.01.2021, the Expert Committee concluded that the said question was technically correct, and vide Notice dated 16.01.2021, NBE clarified that the result declared on 18.12.2020 was the final result. d) Thereafter, W.P.(C) 918 of 2021 was filed by the Respondent herein, an association consisting of Indian citizens who hold degrees in medicine from foreign universities, claiming that there was a patently erroneous question in the examination paper. During the course of the proceedings, the Respondent herein restricted its relief to the grant of one additional mark to the candidates who had taken the said paper. e) As the alleged incorrect question pertained to the Sample Registration System (SRS), vide Order dated 05.07.2021, the learned Single Judge directed the Registrar General and Census Commissioner of India (hereinafter referred to as the “RGI”) to file a short affidavit. The question has been reproduced as follows: "Sample Registration System gives information about all except: a. Birth rate; b. Death rate; c. Maternal Mortality rate; d. Infant mortality rate". f) The SRS stated that information is provided by them for all the four choices, i.e. birth rate, death rate, maternal mortality rate and infant mortality rate. On the basis of this affidavit, the learned Single Judge pronounced the impugned Judgement dated 05.07.2021 wherein W.P.(C) 918 of 2021 was partly allowed and the following direction was given:
g) Aggrieved by the Judgment dated 05.07.2021 in W.P.(C) 918 of 2021, the Appellant herein has approached this Court by way of the instant appeal.
3. Mr. Maninder Singh, learned Senior Counsel appearing for the Appellant-NBE, submits that the impugned Judgement does not conform with the settled law of the land inasmuch as the Supreme Court has held in Kanpur University, Through Vice Chancellor and Ors. v, Samir Gupta and Ors., (1983) 4 SCC 309, that the key answer supplied by the paper-setter should be assumed to be correct, and that the correctness should be ascertained from standard and prescribed textbooks, and not merely on the basis of inferences.
4. The learned Senior Counsel argues that the allegedly incorrect question was not such that it would require judicial intervention and that the learned Single Judge’s approach in awarding one mark to all candidates is untenable in law as the Courts must exercise their powers within a limited scope of judicial review in academic matters. He states that in U.P. Public Service Commission v. Rahul Singh, (2018) 7 SCC 254, the Supreme Court had observed that when it came to conflicting views with regard to key answers in an exam, then the Courts must bow down to the opinion of the experts and cannot take on the role of the experts in academic matters. The learned Senior Counsel further states that in the instant case, the learned Single Judge had erred by calling for an affidavit on behalf of the Registrar General and Census Commissioner, when he had no jurisdiction to do so, and that no consent had been sought from the Appellant herein before the said decision was taken by the learned Single Judge.
5. Mr. Maninder Singh, learned Senior Counsel appearing for the Appellant, cites Ran Vijay Singh and Ors. v. State of Uttar Pradesh and Ors., (2018) 2 SCC 357, to submit that sympathy or compassion must not play any role in the matter of directing or not directing re-evaluation, and that Courts must take into account the internal checks and balances that are put in place by the examination authorities before interfering in the same. Mr. Singh submits that in the instant case, a post-exam review had been conducted for the benefit of the students, and that another review had been conducted by a body of five experts when the representations started coming in. He states that in the both the instances, it was found that there was no error in the question, and the Court cannot now interfere after a body of experts has given its opinion to the contrary. He further states that the learned Single Judge did not have the jurisdiction to either call for the short affidavit on behalf of the RGI nor rely on it for the purpose of arriving at the conclusion that the said question was incorrect.
6. Per contra, Mr. Adit S. Pujari, learned Counsel for the Respondent, submits that the short affidavit filed by the Registrar General and Census Commissioner in compliance of the Order dated 07.05.2021 categorically notes that SRS provides information about all the four metrics and this demonstrates that the impugned question does not have one correct answer. He submits that the decision of the learned Single Judge was based on the response of the RGI, the actual body responsible for the SRS – a fact not under dispute by either of the parties, whose affidavit stated that SRS includes Maternal Mortality Ratio.
7. Mr. Pujari submits that the legal precedents cited by the Appellant herein have been aptly dealt with by the learned Single Judge in the impugned Judgement dated 05.07.2021 before arriving at the conclusion that the question in contention in the FMGE Screening Test 2020 is so palpably wrong that it requires the interference of this Court. He further submits that U.P. Public Service Commission v. Rahul Singh (supra) does not completely bar the Courts from entering into the academic field, but states that the candidate must demonstrate that the key answers are patently wrong on the face of it.
8. Mr. Pujari, learned Counsel for the Respondent, relies upon the judgement of this Court in Salil Maheshwari v. High Court of Delhi,2014 SCC OnLine Del 4563, to submit that if a key answer is not objective, single, correct answer of all the four options provided, then the Court reserves the authority to award additional marks to those candidates who have chosen a different answer. He states that such an approach would not be contrary to Kanpur University (supra). He further states that Kanpur University categorically observes that in a system of ‘Multiple Choice Objective-type test’, care is to be taken by the examiner that questions having an ambiguous import are not set in the papers, and the answers to the questions are clear and unequivocal.
9. The learned Counsel for the Respondent submits that the learned Single Judge was conscious of the limited scope of judicial intervention accorded to the Court in academic matters, and therefore, it was only after undertaking all the necessary precautions to verify and seek a response from the authority that administers the SRS, did the learned Single Judge arrive at the conclusion that the question was patently erroneous in nature. He states that it has also been recorded in the Order 07.05.2021 that it is undisputed by both the parties that the SRS has been established by the RGI, and in wake of this, the short affidavit of the RGI supplants the views of the Expert Committee, whose expertise lies in the field of Community Medicine.
10. Heard Mr. Maninder Singh, learned Senior Counsel appearing for the Appellant, Mr. Adit S. Pujari, learned Counsel appearing for the Respondent, and perused the material on record.
11. In the wake of the COVID-19 pandemic, it has become abundantly apparent that the duty discharged by doctors is of utmost importance, and appropriate reverence must be accorded to the medical professionals who risk their lives day-in and day-out for the betterment of others. It has also become apparent that the ratio of medical professions to the population of our country is abysmal, and requires a drastic investment into the medical field in order for the country to produce more efficient doctors. While certain standards are prescribed by the Indian Medical Council for the medical schools that function in India itself, granting permission to those doctors who pursue medicine from foreign medical schools becomes a complicated process. Inter alia, in order to maintain the standards of the medical profession in India, the Foreign Medical Graduate Examination Screening Test is conducted bi-annually for those foreign medical graduates who wish to be registered with the Indian Medical Council and, therefore, practise in India.
12. It is this Foreign Medical Graduate Examination Screening Test, particularly the one held on 04.12.2020, that is the subject matter of the instant appeal before this Court. The issue herein arises out of a question regarding the data that is provided under the SRS, the largest demographic sample survey, which is administered by the Office of the Registrar General, India, under the aegis of the Ministry of Home Affairs. While it is the prerogative of the candidates (Respondent herein) who have taken the FMGE Screening Test 2020 that the SRS includes the Maternal Mortality Rate, the Appellant here contends otherwise. Holding in favour of the Respondent herein, the learned Single Judge vide its impugned Judgement dated 05.07.2021 has interfered in the issue and accorded one mark to every candidate who has incorrectly answered the question which, as per the learned Single Judge, is patently erroneous.
13. The scope of judicial review when it comes to correctness of key answer has been considered time and again by the Supreme Court wherein the norm has been to entertain such challenges on a very limited ground and give due weight to the opinions of subject experts. In Kanpur University (supra), as cited by the learned Senior Counsel for the Appellant, the Supreme Court repelled the challenge to the key answer and made the following observations:
14. Referring to Kanpur University, the Supreme Court, in U.P. Public Service Commission v. Rahul Singh (supra), had observed that constitutional courts must exercise restraint in matters of this nature and should be reluctant to entertain a plea challenging the correctness of the key answers. The relevant portion of the said judgement has been reproduced as follows:
15. In yet another decision of the Supreme Court in Ran Vijay Singh and Ors. V. State of U.P. and Ors. (supra), certain conclusions were laid down with regard to the Court’s ability to substitute its own views for that of the examiners and award additional marks consequently. The same have been reproduced as under:
30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate—it has no expertise in the matter and academic matters are best left to academics;
30.4. The court should presume the correctness of the key answers and proceed on that assumption; and
30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.”
16. This Court has also deliberated upon how Courts must curb their temptation to interfere with the question paper and answer key in the face of a counter view of subject experts. In Atul Kumar Verma v. Union of India, 2015 SCC OnLine Del 10316, this Court had held as follows:
17. The foregoing cases cement the finding that Judges are not and cannot be experts in all fields, and the opinion of experts cannot be supplanted by a Court overstepping its jurisdiction. It needs to be demonstrated by a candidate that the key answers are patently wrong on the face of it, and if there is any exercise conducted by the Court wherein the pros and cons of the arguments given by both sides need to be taken into consideration, that will inevitably amount to unwarranted interference on the part of the Court. When there are conflicting views, it is incumbent upon the Court to bow down to the opinion of the experts which, in this case, was the Expert Committee constituted by the NBE.
18. The submissions made by the learned Senior Counsel hold weight inasmuch as the Court cannot step into the shoes of the examiner and render an opinion contrary to that of the Expert Committee. If the error in the question is manifest and palpable, and does not require any elaborate argument, then the Writ court may choose to intervene. However, where the errors do not show their heads without a detailed and elaborate probe into the opinions of experts, the Court must stay its hands. It would not be prudent for a Court to conduct itself like an expert in a subject alien to it when an entire body of experts has arrived at a contradictory stand. It is also not for the Courts to interfere in such matters, except in absolutely rare and exceptional cases, especially in view of the fact that the instant examination pertains to the practice of medicine – a field that requires the exercise of utmost care and caution.
19. Furthermore, this Court finds it pertinent to note that the learned Counsel for the Respondent was unable to demonstrate the consent of the Appellant in calling for the short affidavit on behalf of the RGI. When the conducting body (Appellant) itself had facilitated a post-exam review of all the questions between 07.12.2020 to 12.12.2020, and had found that there was no technically incorrect question, it was not open to the learned Single Judge in its jurisdiction under Article 226 to call for a short affidavit from the RGI to furnish further information on this aspect. Furthermore, the Appellant had also constituted a five-member Committee with experts in the field of Community Medicine to look into the correctness of the contentious question, and vide report dated 15.01.2021, the said Expert Committee had concluded that the question was technically correct and valid.
20. Nowhere has the Appellant denied that Maternal Mortality Rate is not an indicator that is published by the SRS, however, sufficient material has been provided by the Appellant to demonstrate that the SRS bulletin (May 2020, Volume 53 No.1) describes only three parameters (Birth Rate, Death Rate, and Infant Mortality Rate), and that the data provided by these indicators is then used to calculate other derived indicators, such as the Maternal Mortality Rate. The Special Bulletin on Maternal Mortality in India 2016-2018 published in July 2020 also indicates that the data pertaining to Maternal Mortality Rate is accumulated through the administration of Verbal Autopsy (VA) instruments and is a derived indicator, not a basic indicator such as Birth Rate, Death Rate and Infant Mortality Rate. In the face of the material on record as well as the repeated findings of the experts, the learned Single Judge has erred by placing incorrect reliance solely on the short affidavit filed by the RGI.
21. The learned Counsel for the Respondent’s reliance on Salil Maheshwari (supra) is of no consequence. While this Court concedes that there is no blanket bar on judicial review in academic matters, however, the same is only permissible where the decision is so manifestly and patently erroneous that no reasonable person, similarly circumstanced could have taken it. In the matter before this Court, it cannot be said that the question was such that it was patently erroneous and warranted the interference of the learned Single Judge. Similarly, citing Anjali Goswami and Ors. v. Registrar General, Delhi High Court, 2019 SCC OnLine Del 6829, also does not come to the aid of the Respondent. More than 6000 candidates had opted for the correct answer as stipulated by the Appellant. Merely because other candidates faced confusion and were not aware of the answer cannot be a ground to deem ambiguity in the same. Further, the key answers had been RGI and then relying upon the same, this Court is of the opinion that the learned Single Judge has clearly exceeded its jurisdiction by interfering in the examination and awarding one mark to all candidates who had chosen the incorrect answer.
22. In view of the aforesaid observations, this Court is, therefore, inclined to allow the instant appeal and set aside the impugned Judgement dated 05.07.2021 passed by the learned Single Judge in W.P.(C) 918 of 2021.
23. Accordingly, the LPA is disposed of, along with the pending application(s), if any.
SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J AUGUST 05, 2022 Rahul