w w w . L a w y e r S e r v i c e s . i n

Aniruddh Kumar Saxena & Others v/s Union of India & Others

Company & Directors' Information:- UNION COMPANY LTD. [Active] CIN = U36900WB1927PLC005621

Company & Directors' Information:- UNION COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999KA1942PTC000292

    WP. No. 5387 (W) of 2020 with CAN. Nos. 3127 & 3128 of 2020

    Decided On, 19 August 2020

    At, High Court of Judicature at Calcutta


    For the Petitioners: Probal Mukherjee, Mit Guha Roy, Advocates, In-Person. For the Respondents: Kumar Jyoti Tewari, R2 to R5, S.N. Mukherjee, Anil Dhar, Biswaroop Bhattacharya, S. Ghosh, S. Bhattacharya, Victor Chatterjee, Neha Chakraborty, Advocates.

Judgment Text

Subrata Talukdar, J.

It has been famously remarked that there are "lies, damned lies and statistics". Be that as it may, there are statistics aplenty in this keenly disputed matter and, it is such statistics alone which comprise the core of both the written and oral submissions of the appearing parties.

This is definitely not a first and, will also not be the last for any Court to venture into the statistical probability and/or plausibility of one argument or, a set of arguments over another. The statistical probability and/or plausibility, in other words, the odds favouring one mathematical result over another was famously pressed into service by the late Panna Lal Basu, M.A.B.L., the then Additional District and Sessions Judge, Dacca while decreeing in favour of the Second Kumar of Bhowal in Title Suit No.38 of 1935.

In his judgment delivered on 24th August, 1936, the Learned Judge writes:-

"Add- Shoes fit. Clothes fit. General figure same, except for fat of which one sees a trace in the photo a (15) (look at the neck). He looks the same age. His height might well be to-day what it is, looking to his height at the age of nearly

21. Add the marks found: the boli-mark on the head; the boli-mark; the operation-mark near the groin; the tiger-claw mark; the 'til' or 'mole' on the penis; the voice and the gait. Add these as a re-assurance. Add the fact that the Kumar was on the whole a very exceptional looking man and the coming of the plaintiff at Dacca is itself an accident on the defendants' theory. Leaving aside the things said in these paragraphs, the rest-those on the table above- are a collection of accidents that can never occur in a second individual. If the chance of each of the items occurring in a second individual is represented by a fraction, the chance of all these occurring in another is the product of these fractions, and anyone with a sense of mathematical odds would see that it is nil."

Now, descending into the facts of this case, it must be observed at the outset that considerable light with its accompanying heat has been generated through the arguments of the appearing parties. The challenge thrown by the petitioners is to an alleged skewed selection process to the Post Graduate Diploma Course in Business Administration (for short PGDBA or, the PGDBA Course) under the respondents/institutes nationally implemented by way of a Multiple Choice Questions (MCQ) format Examination (for short the said Examination).

The petitioners allege that the MCQ format comprised in all 150 questions. It is submitted that out of the 150 questions there were technical glitches in respect of 5 questions comprising the Data Interpretation and Data Visualization Section (for short the DIDV respectively). It is submitted that the MCQ format carried +3 Marks for every correct answer, 1 Mark for every incorrect answer and 0 Mark for every unattempted question. Therefore, the range of marks relating to the 5 questions would vary between +15 to -5 being the opposite ends of the spectrum for all questions answered correctly to all questions answered incorrectly, with 0 marks against all 5 in the event the questions are left unattended. The duration of the examination was three hours and, it was conducted on 16th February, 2020 simultaneously in all centres.

It has been, inter alia, pleaded in the writ petition that technical glitches connected to the DIDV Sections were reported in some centres affecting in all 867 candidates, including some of the petitioners. Such of the candidates either lost valuable time in trying to answer the said 5 questions correctly or, in the alternative lost marks either by answering them incorrectly or, leaving the questions unanswered. In any view of the matter, the petitioners suffered due to no fault of theirs since the DIDV Section comprising 5 questions was hit by the technical glitches.

It is pleaded by the petitioners that 3 questions in the DIDV Section were incorrect carrying irrelevant options whereas, 2 questions were quaint carrying correct options but, erroneously placed in the DIDV Section. It is pointed out that immediately after the closure of the examination, the petitioners represented their grievance before the respondents/institutes authorities but, did not receive a befitting answer. It is submitted that at the level of an All India Examination even a difference of 0.1 Marks can result in a large movement in the merit list. It is argued that the efforts of the respondents/institutes to grant 15 Marks across-the-board apropo the 5 Questions in the DIDV Section will result in inequalities in the short-listed merit list.

It is further argued by the petitioner Nos. 1, 7, 8 and 11 appearing in person and Mr. Probal Mukherjee, Learned Senior Counsel, appearing for the rest of the petitioners, that the grant of across-the-board 15 marks to all candidates will not reflect the correct position faced by individual candidates in all examinations centres. It is argued that not all examination centres faced the technical glitches and even, not all the petitioners have faced the technical glitches. It is submitted that even those petitioners who have not faced any technical glitch have consumed valuable time in trying to get around the said 5 questions and, accordingly lost out while answering the remaining questions in the paper.

On the other hand, the candidates who did not experience the technical glitches and proceeded to answer all questions without facing any adversity whatsoever stood automatically and unfairly benefitted by the 15 Marks granted to all the candidates. It is, therefore, contended that the so-called short-listed merit list does not reflect the real position of the candidates. It is further contended that several of the short-listed candidates comprising in all 550 in number have managed to gain unfair additional weightage due to the across-the-board grant of +15 Marks. It is submitted that the so-called equalisation and/or normalisation process adopted by the respondents/institutes to cover up their laches qua the 5 questions in the DIDV Section has led to a seriously lop-sided assessment of performance. It is thus submitted that the only alternative is to hold the examination afresh.

Appearing on behalf of the respondents/institutes, Mr. S.N. Mukherjee, Learned Senior Counsel assisted by Mr. Victor Chatterjee, Learned Counsel, has in turn relied on statistics to rebut the stand of the petitioners. It is, inter alia, submitted and also pleaded in writing that a total of 5293 candidates appeared for the said examination in 46 centres throughout the country. Out of the total of 46 centres, 41 centres faced technical glitches and candidates spread across the 41 centres raised objections connected to the DIDV Section. Therefore, candidates in only 5 centres did not raise any issue with regard to the technical glitches. The total number of candidates appearing in the 5 centres are 58. Again therefore, the rest of the 5293 candidates barring the 58 examinees who did not raise any objection, i.e. comprising more than 90% of the centres as well as candidates, including some of the petitioners, faced the technical glitches.

It is further pleaded that the technical glitches arose because of the Servers connected to the said 41 centres. Almost 98.9% of the examinees faced technical glitches, and 17% of the total number of candidates complained. It is argued that the technical glitches complained of by the petitioners as well as the other candidates would relate to the following issues, viz. either the MCQ options in the DIDV Section carried the wrong answer or, the question itself was wrong, being either wrong by itself or, placed in the wrong Section.

It is pointed out by way of an instance that the petitioner No. 8 had answered only 1 question correctly out of the 5 questions in issue but got the benefit of 15 Marks, without any negative marking. It is further pleaded that out of the 58 candidates who did not face any technical glitch, only the names of 6 candidates appear in the short-list of candidates found eligible for the interview.

It is submitted that the time spent by each of the petitioners in attempting the DIDV Section has been comparatively assessed qua every candidate. It is pointed out on the basis of a Chart annexed to the pleadings of the respondents/institutes that the Audit Trail of the time spent by each of the candidates, including the petitioners, does not show disproportionate variation inter se the candidates as alleged by the petitioners which is deserving of additional compensation. It is submitted that the grant of 15 Marks across-the-board is adequate remedy for all the candidates, including the petitioners.

It is also submitted on the basis of Charts annexed to the written pleadings of the respondents/institutes that even after the grant of the additional 15 Marks to all candidates, the names of the petitioners feature far and fairly below the last ranked short-listed candidates in different categories of Courses. It is therefore submitted for the sake of argument alone without admission that, in a worst case scenario for the respondents/institutes, the comparative position of the petitioners being far and fairly below the last ranked candidate, no case of discrimination is established.

It is finally argued that at no point in the written pleadings and in oral arguments, the petitioners have raised the issue of mala fides against the selecting respondents/institutes. The only contention of the petitioners has been that the across-the-board grant of 15 marks is an arbitrary policy exercise by the respondents/institutes. The petitioners have not alleged that, in any other way, the short-listed candidates were favoured. It is not the stand of the petitioners that they are moving this writ petition in a representative capacity. It is pointed out that out of the 5293 candidates, 921 candidates comprising 17% of the total number of candidates across 41 centres complained of technical glitches and the petitioners are only 12 in number. Both the probability and plausibility of remediable action suggest that the grant of 15 Marks across-the-board would best subserve the interests of all candidates and not delay the academic calendar.

Mr. Kumar Jyoti Tewari, Learned Counsel appearing for the Respondent/Ministry of Human Resources Development (MHRD), Government of India submits that apropo the present facts and circumstances the respondents have followed the Normalisation Rule laid down by the Hon'ble Supreme Court in 2018 (17) SCC 278. The adoption of the Normalisation Rule has not only created a level playing field for all candidates but, also saved the academic calendar.

Having heard the parties and anxiously considered the materials placed, this Court arrives at the following findings:-

I) That each examination scenario/selection process would turn on its own facts, notwithstanding the general wrap-around principles which can fit a known set of facts.

II) That, even the petitioners admit to the fact that 3 out of the 5 questions in the DIDV Section were incorrect, while the remaining 2 were quaint. The specific pleading of the petitioners as would be evident from the Affidavit-in-Reply affirmed by the petitioner No. 8 reads at Paragraph 15 as follows:-

"15. With reference to the averments made in paragraph no 5(xi) of the said opposition I specifically deny and dispute the same and I state that this claim can be clearly rejected as firstly not all faced the technical glitch. For those who faced the technical glitch, it is evident from the Revised Candidates response key that 3 questions in DIDV section were incorrect questions having irrelevant options and 2 questions were Quant questions having correct options but placed mistakenly under DIDV section. Thus, the claim put forward by the respondents that 5 questions were from different set and answers fed in the system were correct is completely negated as can be proved from the candidate response key of those who faced technical glitch. For those who did not face the glitch, they had all correct questions and options in DIDV section."

III) Assuming that the above stated stand of the petitioners is correct then, apart from the centres which, according to the respondents/institutes are only 5 in number from where no technical glitches were reported, in other centres, i.e. 41 out of 46 where the technical glitches occurred, the candidates would be left with 3 incorrect questions and 2 quaint questions.

IV) With reference to III) above it can be therefore safely understood that in 41, i.e. more than 90% of the centres, none of the candidates could have answered 3 incorrect questions correctly. Again presuming that 2 quaint questions could have been answered in any way -- correct or incorrect or, not attempted -- the fact remains that out of the 5 questions carrying 15 Marks, at 90% of the centres all candidates universally or across- the-board stand deprived of 9 Marks.

V) With further reference to III) and reference to IV) above, the competition in 90% of the centres would be now restricted to 6 Marks out of the 15 Marks covering 2 quaint questions. Axiomatically, it would be non-discriminatory qua all candidates in 90% of the centres to receive the benefit across-the-board of 9 Marks. Axiomatically again, the claim of the petitioners by their own admission of 3 incorrect questions stands limited to 6 marks covering 2 quaint questions which could be answered or, not answered in any of the three possible ways. It would be now pertinent to examine whether the grant of 6 marks overwhelmingly altered the composition of the short-listed merit list to the disadvantage of the petitioners.

VI) Next with regard to III), IV) and V) above, it would be an acceptable proposition that the 6 marks in issue would not be contentious when seen in the light of the far and fair difference between the last ranked candidate in the short-listed merit list and each of the petitioners in their respective course categories. The further fact is interwoven that out of the 58 candidates who appeared in the 5 centres which did not face the technical glitches, only 6 candidates feature in the short-listed merit list - a statistical quantity which submerges the shrill voices of the petitioners.

VII) Now, the issue of compensation for wastage of time in answering the 3 incorrect and 2 quaint questions as raised by the petitioners also stands overwhelmed by the Audit Trail brought on record by the respondents/institutes. The aspect of compensation claimed by the petitioners appears to be generalised which must now be strictly read in the light of the Audit Trail which has left its indelible footprints on the path of reconstructing the examination process.

VIII) It is also an accepted position that there are no allegations of mala fides against any of the respondents/institutes of personally favouring the short-listed candidates. The complaint is one of general prejudice, although the petitioners do not appear to have moved this writ petition in representative capacity. Moreover, as would be apparent from the oral arguments of the petitioners appearing in person that not all of the petitioners were affected by the technical glitches. It must be th

Please Login To View The Full Judgment!

erefore noticed that except the reliefs claimed, the petitioners lack homogeneity in cause-of-action. In the backdrop the above discussion, this Court finds the stand of the respondents/institutes to be both probable and plausible. Both law and equity tilt the balance in favour of the respondents, including the overwhelming prejudice likely to be caused to the short- listed candidates due to delay or loss of an academic year. Accordingly, the respondents/institutes succeed. The selection process shall be carried to its logical conclusion. The interim order stands accordingly vacated. However, before parting with this discussion, this Court must observe on the unfortunate phenomenon of the premier respondents/institutes being dragged into a controversy by their would-be students connected to a public selection examination. Normatively, both the examination and, the institutes conducting the same should be, like Calpurnia, Caesar' wife, above arguments and doubts. The respondents/institutes could ideally take a leaf out of the book of King Janak, father of Sita and of epic fame. It was said of the just and kindly King that: "He never argued. He didn't need to. He was king." (From: The Forest of Enchantments'; author: Chitra Banerjee Divakaruni). W.P. No. 5387 (W) of 2020 with CAN 3127 of 2020 with CAN 3128 of 2020 stand thus disposed of. There will be no order as to costs. Parties shall be entitled to act on the basis of a server copy of the Order placed on the official website of the Court. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.