Hon'ble Sanjay Kumar Pachori,J.
1. Heard Shri A.K. Pandey, learned counsel for the petitioner; Shri Purnendra Kumar Singh, learned counsel for the Union of India and Shri Dhananjay Awasthi, learned counsel for the respondent no.2/Senior Director, National Testing Agency, Ministry of Education, Government of India, New Delhi.
2. The present writ petition is preferred seeking following reliefs:-
"i. To issue a writ, order or direction in the nature of mandamus directing the respondent No.2 to reserve a seat for the petitioner having Roll No.4402006652 (OBC-(NCL) Category Candidate) in on-going conselling of National Eligibility-cum-Entrance Test (Under Graduate)-2020 (in short "NEET (UG)-2020" conducted by the respondents;
ii. To issue a writ, order or direction in the nature of mandamus directing the respondents to consider the candidature of the petitioner having Roll No.4402006652 (OBC-(NCL) Category Candidate) in on-going counseling of National Eligibility-cum-Entrance Test (Under Graduate)-2020 (in short NEET (UG)-2020" conducted by the respondents.
iii. To issue a writ, order or direction in the nature of mandamus directing the respondents to produce the OMR Sheet pertaining to the petitioner before this Hon'ble Court."
3. Learned counsel for the petitioner submits that the petitioner belongs to Other Backward Class Category. He appeared in National Eligibility-cum-Entrance Test (Under Graduate)-20201 on 13.9.2020. After conducting the aforesaid examination, the National Testing Agency (NTA) uploaded the answer key for different series of booklets on 26.09.2020. The petitioner did not challenge his answer key uploaded by the NTA. Thereafter, the NTA released the OMR sheets of NEET (UG)-2020 on 05.10.2020 and also uploaded the scanned image of OMR sheets of all the candidates. Finally, the NTA declared the result on 16.10.2020 and on the same day, the score cards of all candidates were also uploaded. After declaration of the final result, the petitioner came to know that there is a huge difference between the marks as obtained by him and the marks, which were expected to be secured by the petitioner. As per his own calculation based on the answer keys, the petitioner expected to score more than 600 marks out of 720. It is claimed that due to non-downloading the scanned image of the OMR sheet uploaded on the official website of NTA, the petitioner could not participate in the counselling and he was surprised to know that he had secured 146 marks out of 720. This situation has impelled the petitioner to approach before this Court under Article 226 of Constitution of India.
4. On the other hand, Shri Dhananjay Awasthi, learned counsel for the respondent no.2 has placed the categorical instruction and the same is taken on record. In the instructions in question, it has been stated that the Ministry of Human Resource Development (MHRD), now renamed as Ministry of Education, Government of India (GOI), has established National Testing Agency (NTA) as an independent, autonomous and self-sustained premier testing organisation registered under the Societies Registration Act, 1860 to conduct efficient, transparent and international standard test in order to access the competency of candidates for admission to premier higher education institutions; to undertake research on educational, professional and testing systems to identify gaps in the knowledge systems and taking steps for bridging them; to identify experts and institutions in setting examination questions and to produce and disseminate information and research on education and professional development standards.
5. Section 14 of the National Medical Commission Act, 2019 provides for holding of a common and uniform National Eligibility-cum-Entrance Test for admission to the undergraduate medical courses in all medical institutions including those governed under any other law. Thus, the admission to MBBS course in AIIMS, New Delhi, JIPMER and all AIIMS like Institutions is also being made through NEET. The eligibility criteria applicable to appear in NEET (UG) shall also be applicable to the candidates desirous to take admission to INIs like AIIMS. The NTA has been mandated by the Ministry of Health and Family Welfare to conduct the National Eligibility Cum Entrance Test (UG) throughout the country since the year 2019. The NEET (UG) - 2020) has been conducted on 13.9.2020 in Pen and Paper mode as an uniform entrance examination for admission to MBBS/BDS Courses and other undergraduate medical courses in approved/recognized Medical/Dental & other Colleges/ Institutes in India. The norms/procedure/timeliness followed in the conduct of this examination are as per Section 10-D of the Indian Medical Council Act, 1956 and relevant Regulations notified thereunder by Medical Council of India (MCI) from time to time for regulating graduate medical education.
6. The NEET (UG) 2020 has been conducted by NTA on 13.09.2020 and 14.10.2020 (only for COVID-19 affected candidates). The combined results of the examinations was declared on 16.10.2020 on the official website of NTA through public notice dated 17.10.2020. The result of all the candidates alongwith their All India Rank (AIR) has been handed over to the office of Director General of Health Services (DGHS), Ministry of Health & Family Welfare on 26.10.2020 for counselling/admission. The pattern of the examination has also been provided under Clause 3.2 and 3.3 at page 13 of the Information Bulletin of NEET (UG) 2020, wherein total 180 number of multiple choice questions with four options and single correct answer, were given and the aggregate marks were 720. Each question carries four marks and for each correct answer/best option, the candidate will get four marks. For each incorrect answer, one mark will be deducted from the total score. To answer a question, the candidate has to find for each question the correct answer/best option. The NEET (UG) 2020 is a Pen & Paper based test to be answered on the specially designed machine gradable sheet using Ball Point Pen.
7. It is pertinent to note that the 'specially designed machine gradable sheet' is called 'Answer Sheet', which is popularly known as the Optical Mark Recognition (OMR) sheet. The candidate records his/her response in it by darkening only one circle for each question/entry. The NTA displayed the OMR sheets of all candidates including the petitioner with effect from 05.10.2020 onwards and no change/modification has been made thereafter. The results have been declared on the basis of the responses marked in the OMR/Answer Sheet, which was also provided to all the candidates including the petitioner. As per the calculation sheet of the candidate/petitioner, which has been generated from the system on the basis of the questions attempted by him on his actual OMR/Answer Sheet, the petitioner has attempted 154 questions. He has answered 60 questions correctly and 94 incorrectly. As per the marking scheme of the examination, 04 marks are awarded for each correct answer and 01 mark for each incorrect answer is deducted from the total score/marks. As such, the petitioner had secured 146 marks (60x4-94x1) out of the total marks of 720, as correctly provided in the score card.
8. In this backdrop, Shri Dhananjay Awasthi, learned counsel for the respondent no.2 has vehemently contended that in order to achieve optimum level of accuracy, a detailed procedure is followed in the finalization of result. He submits that there are many layers of checks to verify the identity of the OMR sheet, therefore, there is hardly any scope or likelihood of any discrepancy in the online evaluation system conducted by NTA as the petitioner's OMR sheet has been scanned and tallied properly. He further makes submission that at no point of time the petitioner has denied his signatures nor his roll number in his handwriting on the OMR uploaded on the official website of NTA. Therefore, the OMR uploaded on the official website has been assessed for declaration of the result being the only OMR on record, which was submitted by the petitioner himself. He submits that the exhaustive procedure is provided and there is hardly any scope for human involvement and there is no discrepancy. The entire claim has been set up on false ground and the petitioner tried to take undue advantage over other candidates by claiming himself that he has secured more than 600 marks out of 720 but in fact, he has secured only 146 marks as shown in the score card, which has been uploaded on official website of the NTA. In support of his submission, he has also placed reliance on the judgment dated 8.12.2020 passed by learned Single Judge of this Court in Writ C No.19615 of 2020 (Manoj Kumar Tiwari vs. Union of India and 3 others)2. The relevant portion of the judgment is extracted herein under:-
"The petitioner seeks the issuance of a writ commanding the respondents to undertake a revaluation of his answer script submitted in respect of the subject- "Community and Elementary Education". The issue itself arises in the backdrop of the petitioner having participated in an entrance examination conducted by the second respondent for granting admission to its D.EL.E.D. course. Being unsuccessful in obtaining admission to that course, he has petitioned this Court for reevaluation of the answer script in question.
It becomes pertinent to note that prior to approaching this Court the petitioner has not obtained a copy of the answer script from the respondents, a procedure that could have been adopted and is permissible in law in light of the law as declared by the Supreme Court in Central Board of Secondary Education Vs. Aditya Bandhopadhya and others3. The Court is thus left to consider the reliefs claimed in the petition solely on the basis of the following averments as made in paragraphs 9 to 12 of the writ petition which read thus:-
"9. That the petitioner has solved the question paper to the best of his ability but when the statement of marks awarded to the petitioner in Sub Code No. 507 he was shocked.
10. The the petitioner apprehends that answer book of the subject Community and Elementary Education on (Subject Code No. 507) has not been properly checked/evaluated.
11. That possibility of errors in calculation of marks, cannot be ruled out, but unless any direction to ensure rechecking or scrutiny is issued the Institute may not take any step.
12. That the petitioner has good academic career, he awarded 199/500 in Purva Madhyama, 323/600 in Uttar Madhyama, 1199/2200 in Shashtri Pariksha and 590/900 in Acharya Pariksha and in result of D.EL.Ed. Course subject Nos. 501 to 514 except Code No. 507 he awarded good marks and he hopes that he will get more than 28 marks."
The practice of approaching this Court directly without obtaining copies of the answer scripts or seeking directions requiring examining bodies to produce answer books cannot but be deprecated in the strongest terms, discouraged and curbed. The conduct of examinations by educational authorities cannot be lightly interfered with unless the petition rests on a strong foundation and it is at least prima facie established that there has been an apparent and evident mistake in the process of evaluation. The onus and burden on this aspect lies solely on the petitioner and is one which must be discharged at the threshold. In order to establish a stark or glaring mistake in the process of evaluation it is imperative for the petitioner to establish from the record that an apparent illegality has been committed by the examiner. That cannot possibly be done unless a copy of the answer script has been obtained and the petitioner upon a perusal thereof finds a manifest error or illegality in the evaluation undertaken. The burden to prove that a fair evaluation was in fact undertaken cannot stand shifted or placed upon the examining body unless this primary fact is established by the petitioner. This essentially since the examining body cannot be commanded to prove a fact in the negative.
An evaluation undertaken by examining bodies should not be viewed with suspicion unless it is prima facie established that it was not fair or transparent. Courts must necessarily be wary of entertaining such challenges unless it be well substantiated and found to rest on a strong pedestal which is likely to succeed. In any case a foray like the present cannot be entertained simply on the basis of a stated apprehension or the candidate's own assessment of performance in the examination. A challenge to an evaluation undertaken by examining bodies, in any case, on a mere allegation that "possibility of errors in calculation of marks cannot be ruled out..." cannot be countenanced. It must necessarily, for reasons aforenoted, stand on sounder footing.
More fundamentally the Court takes notes of the submission of Sri Awasthi who submits that no provision for reevaluation exists in terms of which a direction as claimed by the petitioner may be issued. While the absence of a provision for reevaluation may not completely denude the Court from examining a challenge to an evaluation process under Article 226 of the Constitution, its powers may be invoked in rare and exceptional cases and where the error or illegality is patent and manifest. The Court deems it apposite to notice the following conclusion as ultimately pronounced in Ran Vijay Singh Vs. State of U.P.4 30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;
The above position was again explained in High Court of Tripura v. Tirtha Sarathi Mukherjee5 with the Supreme Court observing: -
20. The question however arises whether even if there is no legal right to demand re-valuation as of right could there arise circumstances which leave the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for re-valuation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for re-valuation in a situation where a candidate despite having giving correct answer and about which there cannot be even the slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.
21. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? It is one thing to say that the absence of provision for re-valuation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for re-valuation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional."
As is evident from the above exposition of the law on the subject, there must be a demonstrable illegality in the evaluation undertaken and only in such rare and exceptional cases would the Court be legally justified in invoking its jurisdiction. The petitioner here has miserably failed to meet the tests as evolved and noticed above.
The writ petition consequently fails and is dismissed."
9. Hon'ble Supreme Court has also occasion to consider similar issue and dismissed the Writ Petition (C) No.11495 of 2020 (S) (Abdul Azeez vs. Union of India represented by its Secretary, Ministry of Human Resource Development, New Delhi and another)6 on 30.6.2020 with following observations:-
"32. Though, the petitioner has filed an application, not numbered, seeking for a direction to respondents 5, 6 and 7 - Ministry of Home Affairs represented by its Secretary, Ministry of External Affairs represented by its Secretary, and Ministry of Civil Aviation represented by its Secretary, to operate Special Chartered flights for the students from Qatar and other Gulf Co-operation countries, exclusively for the NEET (UG)-2020 aspirants, for attending NEET examinations scheduled in various cities in India, it is for the students, who have registered their names for NEET examination, to make necessary arrangements with the operators. We cannot issue any directions to the Government or the MCI, as the case may be. The guidelines issued by the Ministry of Home Affairs, Government of India, New Delhi enabling the students to travel are in vogue from 5.5.2020 onwards. NTA has fixed the date of NEET (UG-2020) examination on 26.07.2020. There are no materials, as to when the students, intending to take part in NEET(UG) - 2020 examination, have reported the authorities to permit them to travel to India, to take up NEET examination. Ministry of External Affairs, New Delhi has replied thus:
"VBM flights include students and other compelling cases. Our Missions would try their best to accommodate Indian students and OCI students (if they fall within the MHA SOP guidelines) appearing in NEET exam."
In the light of the above discussion, we are of the view that the prayers sought for by the petitioner in this public interest writ petition cannot be granted. Writ petition fails and accordingly, dismissed."
10. The NEET is one of the highest competitive examination, opening opportunities for students to get into the most prestigious medical colleges. The NEET (UG)-2020 examination was smoothly held amid strict precautions in view of the COVID-19 pandemic on 13.9.2020 on the given schedule in a secure and healthy atmosphere by following all the directions and advisories sincerely. Due to the COVID-19 pandemic, 85-90 percent of 15.97 lakh candidates appeared for NEET (UG)-2020 examination. The NTA released the answer keys of the NEET (UG)-2020 on 26.9.2020 and the aspirants were able to download the code-wise official NEET (UG)-2020 question paper with solutions from the NTA official website and challenge it as well. Admittedly, the petitioner did not challenge his answer key uploaded by the NTA on the official website. Thereafter, the NTA declared the final result on 16.10.2020 wherein, he had secured only 146 marks out of 720.
11. In the aforesaid facts and circumstances, we are of the opinion that the evaluation undertaken by the examining bodies should not be viewed with suspicion unless it is prima facie established that it was not fair or transparent. Such challenge may only be accepted unless it be well substantiated and found to rest on a strong pedestal which is likely to succeed. In the present matter, the detailed instruction, as enumerated above, clearly transpires to the Court that the entire pleading has been set up on vague and evasive grounds.
12. We do not find any good ground to interfere in the present writ petition.
13. Consequently, the writ petition is dismissed.