Saji Mathew v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 7TH DAY OF OCTOBER 2014/15TH ASWINA, 1936** ## **WP(C).No. 24443 of 2012 (E)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **SAJI MATHEW, AGED 34 YEARS ALINVILAYIL PUTHENVEEDU, PALLICKAL EAST THEKKEKKARA P.O. MAVELIKKARA, ALAPPUZHA DISTRICT KERALA.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** ## **RESPONDENT(S):** **----------------------------** ## **1. UNION OF INDIA** - **REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HUMAN RESOURCES DEVELOPMENT, SHASTHRI BHAVAN, NEW DELHI -01.** **2. UNIVERSITY GRANTS COMMISSION, BHADUR SHAH ZAFAR MARG, NEW DELHI-02, REPRESENTED BY ITS CHAIRMAN.** **3. NATIONAL ELIGIBILITY TESTING BUREAU, OFFICE OF UNIVERSITY GRANTS COMMISSION BHADUR SHAH ZAFAR MARG, NEW DELHI-02.** **R1 BY ADV. SRI.N.NAGARESH,ASG OF INDIA R2 & 3 BY ADV. SRI.S.KRISHNAMOORTHY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.24443/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ADMIT CARD OF THE PETITIONER FOR NET-JUNE 2012 HELD ON 24.6.2012.** **EXT.P2: COPY OF THE NOTIFICATION PUBLISHED BY THE 2ND RESPONDENT.** **EXT.P3: COPY OF THE QUESTION PAPER BOOKLET OF NET PAPER II-LAW.** **EXT.P4: COPY OF THE QUESTION PAPER BOOKLET OF NET PAPER III-LAW.** **EXT.P5: COPY OF THE CARBON COPY OF THE OMR SHEET OF PETITIONER FOR NET PAPER II-LAW.** **EXT.P6: COPY OF THE CARBON COPY OF THE OMR SHEET OF PETITIONER FOR NET PAPER III-LAW.** **EXT.P7: COPY OF MARK SHEET OF PETITIONER FOR NET JUNE 2012 AS DOWNLOADED FROM THE WEBSITE OF THE 3RD RESPONDENT.** **EXT.P8: COPY OF THE NOTIFICATION OF 2ND RESPONDENT FIXING THE MINIMUM AGGREGATE QUALIFICATION PERCENTAGE FOR NET JUNE 2012.** **EXT.P9: COPY OF ANSWER KEY PUBLISHED BY THE 2ND AND 3RD RESPONDENTS FOR PAPER II AND III OF THE SUBJECT 'LAW'.** **EXT.P10: COPY OF REVISED ANSWER KEY PUBLISHED BY RESPONDENTS 2&3 FOR PAPER II OF SUBJECT LAW.** **EXT.P11: COPY OF REVISED ANSWER KEY PUBLISHED BY RESPONDENTS 2&3 FOR PAPER III OF SUBJECT LAW.** **EXT.P12: COPY OF PAGE NO.57 OF '16 YEARS SOLVED PAPERS (1994-2009), UPSC (PRE) EXAM I.A.S., LAW' PUBLISHED BY ARIHANT PUBLISHERS (I) PVT. LTD. MEERUT IN THE YEAR 2009.** **EXT.P13: COPY OF COVER PAGE AND PAGES 263 TO 269 OF 'HUMAN LAW AND HUMAN JUSTICE' AUTHORED BY JULIUS STONE, PUBLISHED BY UNIVERSAL LAW CO. IN THE YEAR 2011.** **EXT.P14: COPY OF COVER PAGE AND PAGES 94 TO 96 OF 'SOCIAL DIMENSIONS OF LAW & JUSTICE' AUTHORED BY JULIUS STONE, PUBLISHED BY UNIVERSAL LAW CO. IN THE YEAR 2012.** **EXT.P15: COPY OF PAGE NO.55 OF '16 YEARS SOLVED PAPERS (1994-2009), UPSC (PRE) EXAM I.A.S, LAW' PUBLISHED BY ARIHANT PUBLISHERS(I) PVT. LTD. MEERUT IN THE YEAR 2009.** ## **W.P.(C).NO.24443/2012** **EXT.P16: COPY OF THE COVER PAGE OF THE BOOK 'LAW IN A CHANGING SOCIETY' AUTHORED BY W.FRIEDMANN, PUBLISHED BY UNIVERSAL LAW CO. IN THE YEAR 2011.** **EXT.P17: COPY OF THE COVER PAGE OF THE BOOK 'HUMAN LAW AND HUMAN JUSTICE' AUTHORED BY JULIUS STONE, PUBLISHED BY UNIVERSAL LAW CO. IN THE YEAR 2011.** **EXT.P18: COPY OF THE COVER PAGE OF THE BOOK 'THE MORALITY OF LAW' AUTHORED BY LON L. FULLER, PUBLISHED BY UNIVERSAL LAW CO. IN THE YEAR 2009.** **EXT.P19: COPY OF COVER PAGE AND PAGE 36 OF SALMOND ON JURISPRUDENCE EDITED BY P.J.FITZGERALD, PUBLISHED BY BOMBAY N.M.TRIPATHI PVT. LTD. PUBLISHED IN THE YEAR 2000.** **EXT.P20: COPY OF COVER PAGE AND PAGES 245 TO 248 OF 'MULLA PRINCIPLES OF MAHOMEDAN LAW', 19TH EDITION, EDITED BY M.HIDAYATTULLAH & ARSHAD HIDAYATULLAH, PUBLISHED BY LEXIS NEXIS BUTTERWORTHS WADHWA IN THE YEAR 2009.** **EXT.P21: COPY OF REPRESENTATION DATED 05.10.2012 MADE TO RESPONDENTS 2 & 3.** **EXT.P22: COPY OF RELEVANT PAGES OF SUPPLEMENTARY LIST PUBLISHED BY THE 2ND RESPONDENT ON 12.11.2012.** **EXT.P23: COPY OF RELEVANT PAGE OF ENGLISH TRANSLATION OF SUMMA THEOLOGICAL VOLUME II PUBLISHED BY CHRISTIAN CLASSIC.** **EXT.P24: COPY OF WRITINGS OF THOMAS ACQUINAS EDITED WITH AN INTRODUCTION BY MARY T. CLARK OF IMAGE BOOKS, NEW YORK.** **EXT.P25: COPY OF THE RELEVANT PAGES OF JURISPRUDENCE AND LEGAL THEORY BY DR.V.D.MAHAJAN, 5TH EDITION, PUBLISHED BY EASTERN BOOK COMPANY, LUCKNOW.** **EXT.P26: COPY OF REPRESENTATION (WITHOUT ANNEXURES) DATED 28.10.2013 MADE BY THE PETITIONER.** **EXT.P27: COPY OF THE REPORT OF THE EXPERT COMMITTEE OF THE 2ND RESPONDENT.** **EXT.P28: COPY OF FRESH SCORE SHEET OF THE PETITIONER.** ## **RESPONDENTS EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. -------------------------------** ## **W.P.(C).NO.24443 OF 2012 (E) ----------------------------------Dated this the 7[th] day of October, 2014** ## **J U D G M E N T** The grievance of the petitioner in the writ petition is essentially against the valuation done by the University Grants Commission [UGC] in connection with the National Eligibility Test [NET] that was conducted in June, 2012. The petitioner had appeared at the said examination in pursuit of his quest for an appointment as a Lecturer in a College. The NET is prescribed as a qualifying test for the purposes of appointment as a Lecturer under the UGC Scheme. Pursuant to Ext.P2 notification calling for applications, the petitioner appeared for the test on 24.6.2012. In the said test, he was required to take examinations in three papers in the subject of Law. Paper I comprised of 50 questions of two marks each, Paper II comprised of 50 questions of two marks each, and Paper III comprised of 75 questions of two marks each, thus, making up a total of 350 marks. The cutoff mark for a pass in the examination was prescribed as 65% in aggregate in all the papers put together and a separate minimum for each of the papers. It is not in dispute in the instant case that the petitioner obtained the separate minimum required for each of the **W.P.(C).No.24443/2012** **2** papers. When it came to the aggregate marks however, the petitioner fell short of the required minimum of 65%, having obtained only 64.57%. He secured this aggregate by obtaining 70% marks in Paper I, 58% marks in Paper II and 65.33% marks in Paper III. The petitioner approached this Court on finding that he had not obtained the minimum aggregate marks required for a pass in the NET exam and on noticing that, in the final answer key that was published by the UGC, the answers to various questions that were attempted by the petitioner were wrongly given when compared with authoritative texts on the subject. It is the specific contention of the petitioner that, in view of the fact that most of the answers in the answer key are demonstrably wrong, when reference is made to established texts on the subject and judicial pronouncements on the issues when considered by the various courts in the country, the contrary answers given by the UGC could not have been the basis for a valuation of these papers. The contention of the petitioner, therefore, is that the said answers, which are shown to be demonstrably wrong, should be deleted for the purposes of valuation and the respondent Commission be directed to revalue the answer papers of the petitioner by taking into consideration the answers that can be supported by the authoritative texts and judicial pronouncements on the subject. It is **W.P.(C).No.24443/2012** **3** on the strength of these contentions that the petitioner seeks a declaration to the effect that he was qualified in the NET of June, 2012, and in the alternative, a direction to the respondent to exclude and delete those questions in Papers II and III of Law of the NET examination of June, 2012 and to compute the total marks of the petitioner with respect to the correct questions remaining after excluding/deleting the disputed questions. 2. A counter affidavit has been filed on behalf of the 2[nd] respondent UGC, wherein, it is pointed out that as per the scheme of the NET examination conducted by the Commission, candidates were given an opportunity to prefer their objections against the draft answer key that was published by the UGC. On receipt of the said objections, the same were forwarded to the panel of experts, that was appointed by the UGC to go into the objections, and it was after the scrutiny of the objections by the panel of experts that the revised answer keys were published by the UGC and the results of the candidates declared on the basis of the valuation conducted based on the revised answer key. Responding to the contentions of the petitioner regarding the incorrectness of certain answers given in the final answer key, it is pointed out that even after publication of the **W.P.(C).No.24443/2012** **4** results in 2012, by a separate notification in 2013, the UGC had invited objections from candidates like the petitioner and after referring the said objections to another panel of experts, it was notified that the said panel of experts had also not found the need for effecting any change in the revised answer key that was published by the UGC. It is contended by the respondents that there was no scope for any interference with the valuation done by the UGC in proceedings under Article 226 of the Constitution of India, inasmuch as this Court would not, in exercise of its discretionary jurisdiction, interfere with the opinion of experts in academic matters. 3. I have heard Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing on behalf of the petitioner as also Sri.S.Krishnamoorthy, learned Standing counsel appearing on behalf of the respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that this is a case where the petitioner specifically points to four questions in Papers II and III in the subject of Law, where, according to him, the answers provided by the UGC in their final answer key are demonstrably **W.P.(C).No.24443/2012** **5** wrong. At the time of hearing, he would lay emphasis on question Nos.11 and 14 of Paper II and question No.48 of Paper III, which read as follows: ## **Question No.11:** Match List-I with List-II and select the correct answer using the codes given below the lists: ## **List I** I. Law in a Changing Society II. Human Law and Human Justice III. The Morality of Law IV. Ancient Law ## **List II** - (a) Fuller (b) Friedmann. (c) Stone (d) Main. ## **Codes :** ||I|II|III|IV| |---|---|---|---|---| |A.|(a)|(c)|(b)|(d)| |B.|(c)|(a)|(b)|(d)| |C.|(b)|(a)|(d)|(c)| |D.|(a)|(b)|(d)|(c)| According to the petitioner, the correct option should have been (b), (c), (a), and (d), which is not an option that is furnished in the answer key given by the respondents. The respondents would maintain that the correct answer is option (B). ## **Question No.14:** Assertion (A) : Customs to have the force of law must be immemorial **W.P.(C).No.24443/2012** **6** Reason (R) : Custom represents common consciousness of people. - (A) Both (A) and (R) are true and (R) is the correct explanation of (A). - (B) Both (A) and (R) are true and (R) is not the correct explanation of (A). - (C) (A) is true, but (R) is false. - (D) (A) is false, but (R) is true. According to the petitioner, the correct answer ought to have been (A) whereas the answer in the answer key given by the respondents is (D). It is further submitted that Question No.48 of Paper III-Law of NET 2012 is also demonstrably and manifestly wrong. Question No.48 is as follows: ## **Question No.48:** A Muslim Wife can relinquish her Mahr: - A. When she is minor. B. When she has attained the age of puberty. C. When she is not less than 18 years of age. D. When she is not less than 21 years of age. According to the petitioner, the correct answer ought to have been (B), whereas in the answer key provided by the respondents, it is shown as (C). **W.P.(C).No.24443/2012** **7** 5. The petitioner would rely on Exts.P16 to P18 to substantiate his contentions with regard to question No.11, Ext.P19 in respect of question No.14 and Ext.P20 in respect of question No.48, to show that the answers given by the UGC in their final answer key are demonstrably wrong. No doubt, the material relied upon by the petitioner would certainly indicate that based on certain authoritative texts on the subject, the answer suggested by the petitioner to the questions aforementioned is also a plausible one. This is notwithstanding the stand of the respondent UGC that the answers given to the said questions, in the final answer key, represents the correct answer and has been certified as such by the panel of experts. The question however to be considered in the instant case is whether this Court, in exercise of its powers under Article 226 of the Constitution of India, can embark upon an enquiry as to which of two possible views should govern the valuation to be done by the UGC in the context of a test conducted by the UGC. It would be worthwhile to refer to the decision of the Supreme Court in **University Grants - Commission and Another v. Neha Anil Bobde (Gadekar) [(2013) 10 SCC 519]** which dealt with the very same examination, although a different aspect of the said examination, where the Supreme Court dealing with the role of this Court in academic **W.P.(C).No.24443/2012** **8** ## matters observed as follows: “We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam v. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal v. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the courts to leave the decision of academic experts who are more familiar with the problem they face, than the courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the university. For attaining the said standards, it is open to UGC to lay down any “qualifying criteria”, which has a rational nexus to the object to be achieved, that is, for maintenance of standards of teaching, examination and research. The candidates declared eligible for Lectureship may be considered for appointment as Assistant Professors in universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India.” It is relevant to note in this connection that in the instant case, the UGC had not merely set a paper and proceeded to value the same **W.P.(C).No.24443/2012** **9** based on its own perception of the correct answers. The procedure evolved by the UGC included the publication of a draft answer key, inviting of objections thereto and thereafter getting the objections scrutinised by a panel of experts before publishing a final revised answer key and conducting the valuation based on the said revised answer key. It is also to be noted that even after the publication of the results, when there were objections raised by some candidates with regard to the correctness of the answers published in the revised answer key, the said objections were again routed through subject experts and the results of that scrutiny notified by the UGC. It is against the backdrop of this procedure, that was adopted by the UGC, that the contention of the petitioner with regard to the correctness of the answers furnished by the UGC in its answer key have to be examined. The petitioner, who relies on authoritative texts and legal pronouncements on the subject, is no doubt justified in holding a view that the answers that are supported by such authoritative text books and judicial pronouncements have to be taken into consideration while valuing his answer papers. In the instant case however, in view of the fact that the UGC itself have devised a procedure which safeguarded against the possibility of incorrect answers being published in an answer key, by appointing a panel of experts to go **W.P.(C).No.24443/2012** **10** into the objections raised by candidates who were of the view that the answers published by the UGC in the draft answer key were wrong, the action of the UGC cannot be said to be arbitrary or unreasonable so as to justify an interference with the valuation procedure adopted by them. In this connection, it is also necessary to note the decision of a Division Bench of this Court in **Nowfal. H. and Others v. Kerala Public Service Commission and Others - [2014 (3) ILR 517 (Kerala)]** where this Court, while dealing with a contention similar to that raised by the petitioner, placing reliance on the decision of the Supreme Court in the case of **Kanpur University through Vice - Chancellor and Others v. Samir Gupta and Others [(1983) 4 SCC 309]** , drew a distinction between the facts that obtained in the Kanpur University's case and a situation where the procedure evolved by the examining authority was to publish a provisional key, invite objections, get them scrutinised with the help of experts and to act thereafter on the decision of experts. It was found by this Court that when it was apparent that what the petitioners were seeking was a review of even the decision of experts, to whom the matter was referred by the examining authority under a procedure that was evolved by them, this Court in exercise of its powers of judicial review, would not sit in judgment over the experts and attract the **W.P.(C).No.24443/2012** **11** criticism that it was, in the guise of judicial review, effectively acting as an appellate court. This was more so because, both in that case as well as the present one, the petitioners do not have a case that the persons, to whom the matter was referred by the UGC seeking their opinion as experts, were not actually experts or whether they were in any manner actuated by malice. In such a scenario, as already noted by the Division Bench judgment of this Court referred to above, this Court cannot interfere with the valuation process that has been adopted by the respondent UGC. In this view of the matter, I am not inclined to go into the details of the contentions of the petitioner with regard to the incorrectness of the answers furnished by the UGC in its final answer key as I do not think that this is a case where this Court can interfere with the valuation done by the UGC in exercise of its powers under Article 226 of the Constitution of India. Resultantly, the writ petition fails, and it is dismissed. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** ## prp