Priya Vs. A.P. State Council of Higher Education & Ors  INSC 367 (29 July 1998)
Bharucha, K. Venkataswami Bharucha. J.
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".
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.
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 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.
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.
no merit in the writ petition, it was dismissed.
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:
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." 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.
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.
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".
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".
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.
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.
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.
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.
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 State of Andhra Pradesh for
the academic year 1998-99 session upon the basis that she has secured 94.555%
marks at the EAMCET.
appeal is allowed accordingly. No order as to costs.