P. S. Mishra, J.
1. First of the petitions W.P. 11247/96 by seven petitioners under Art. 226 of the Constitution of India is filed for cancellation of the EAMCET -- 96 (Engineering, Agriculture and Medicine Common Entrance Test -- 1996) as a public interest litigation and entertained by the Court on 14-6-1996. Petitioners moved the Court before the publication of the results alleging that there was leakage of EAMCET--96 Engineering question papers at various centres before the said examination was conducted on 22-5-1996. A coaching centre in Rayalaseema at Tirupathi (the third respondent) allegedly conducted six grand tests between 16th to 20th May, 1996 and 116 questions out of 200 questions which were given to the candidates in the EAMCET-96 Engineering paper with the key-answers were found to have been given to the students of the third respondent coaching centre in the said six tests. Several candidates who appeared for EAMCET-96 sent written complaints and Newspapers published about the leakage. Petitioners stated in some details how the questions were the same or similar as were given to the students in the tests conducted by the third respondent coaching centre and stated that it was reliably learnt that the leakage of the engineering questions and key-answers had spread to some other coaching centres at Vijayawada, Visakhapatnam and some other places. Medical entrance test papers, according to the petitioners, were defective as 11 questions were considered to be invalid by the then Convenor himself (the second respondent) at the time of publishing the key in Newspapers on 8-6-1997, 7 questions were out of syllabus and to some questions answers given in the key were incorrect. Public concern to the above found expressions in the shape of newspaper reports and a large number of letters and telegrams from candidates who appeared either in the Engineering test examination or the Medical test examination were received by the Court. In view of the seriousness of the allegations the Court in W.P.M.P. No. 13667/96 ordered for a status quo in all respects and that no results of the Engineering, Agriculture and Medicine Common Entrance Test-1996 would be published until further orders.
2. A preliminary counter on behalf of the Principal Secretary to the Government, Higher Education Department was filed stating that the entrance test for Medical and Engineering have different set of question papers and as noticed by the Court in its order dated 24-6-1996.
"In the instant case from the concludings of enquiries conducted so far it transpired that the leakage was confined only in relation to the question papers relating to Engineering students and there was no leakage of question papers relating to the Medical students."
The preliminary counter-affidavit also stated that a committee was appointed by the Government of the State to go into the reported allegations against the conducting of the common entrance test and alleged leakage of question papers and investigation into the allegations was entrusted to the CBCID (Crime Branch Crime Investigation Department). As a result oed of by other students in the same town also. It has not spread to other centres. In those circumstances, setting aside the entire EAMCET examination as prayed for by the petitioners would cause untold mental agony to the students who prepared and appeared for the EAMCET examination, "apart from the administrative inconvenience and uncertain future to the student community."
Learned Advocate General who has appeared for the first respondent brought to the notice of the Court a further report purportedly signed by Additional Director General of Police, CID, A.P. which mentioned about the involvement of Professor Raja Rao, Convenor of EAMCET-96, one Mohan Ram Reddy and one Konda Reddy who was running the coaching centre by the name Rayalaseema Coaching Centre in Tirupathi (third respondent) and also named one Dayananda Rao of Bangalore whose daughter appeared for Engineering examination and one Bhaskar Reddy. Dy. Executive Engineer, Electricity Board, who acted as a conduct.
3. After hearing the learned counsel for the parties the Court felt that there were certain materials which indicated that the question leaks were not confined to Tirupathi only but extended to other centres as well including Vijayawada and Visakhapatnam and observed:
"It will not be possible to brush aside the possibility of the question leakage pervading the entire entrance examination (Engineering)."
About the Medical question papers, however, the Court felt.
"there is no firm allegation in this behalf in the writ petition. The matter in this regard is not of such basis that even a prima facie opinion can be formed about it. There are, however, some disturbing informations which are indisputable about medical question papers and the key-answers, such as while releasing the key-answers, the Chairman of the EAMCET Committee has recorded that there are 11 questions whose validity is in doubt, and it is alleged that there are seven questions out of syllabus and some which admit of more than one answer and for looking into all this, a Committee is appointed by the chairman of the EAMCET Committee."
The Court felt, however, that the Vice-Chancellor of Sri Venkateswara University who was the Chairman of the EAMCET Committee and who was responsible for appointing the convenor of EAMCET might or night not be finally found to have any involvement in the whole affair of leakage of question papers, but his presence with such persons, who were accused for the offence of leaking the questions out for consideration of money cannot leave his position above all and observed as follows :
"It will be difficult in such circumstances to leave no scope for doubts about the report of the Committee, which the Chairman of the EAMCET Committee has appointed to go into the validity of the 11 questions of the medical examination or entrusted to it even to go into other allegations made by the petitioners such as the questions being out of syllabus or more than one answer of the questions being available."
The Court accordingly ordered as follows :
"We have given our anxious consideration to see whether the exercise of the entrance test examination can be allowed to proceed for the final publication of results. We are unable to persuade ourselves to order for the publication of the result of the examination insofar as engineering students are concerned. We are also not able to persuade ourselves to direct for the publication of the result of the examination insofar as medical students are concerned, until a Committee of experts is made to go into the correctness of the questions and if some questions arc found out-of-syllabus or having two answers, whether any moderation/ standardisation is necessary and whether the result shall not be substantially affected by any such defects in the question and answer. We do not, however, have information as to who may be the proper persons to constitute the Committee for the said purpose. Learned Advocate General has stated that the Chairman, Andhra Pradesh State Council of High Court Education, can be depended upon and entrusted with the task of selecting the experts for the said purpose. There is no objection to it.
The experts chosen by the Chairman, Andhra Pradesh State Council of Higher Education, we have no reason to think otherwise, shall make all endeavours to complete examination of all aspects of the matter and clear the questions and answer books at the earliest. Before, however, proceeding further after the report of the experts, the Chairman, Andhra Pradesh State Council of Higher Education, shall obtain orders from the Court for further action.
While we share the concern of the respondent-State Government that innocent students should not be made to suffer for the crime or guilt of some such unscrupulous people who have inflicted serious injury to hitherto an honest system of evaluating the merit of the students, we must, as any Court of law is expected to do, also see that those who are involved in the crime and are beneficiaries do not escape with such innocent people only because the Court is guided by sympathy. In all cases of large scale use of unfair means, Courts have found it proper to cancel the entire examination. We are inclined in the instant case, however, to wait for identification of such affected area or number of students who should be denied any benefit of their sitting in the Entrance Examination and until such identification is possible, we have to wait and decide strictly in accordance with law. We, however, do not at this stage rule out the demands which we have received by letter and telegrams to consider whether the whole matter needs an impartial enquiry, if necessary, by appointing a Commission of Enquiry."
4. The Court received in a sealed cover the report and information from Professor G.T. V. Jagannadha Raju, Chairman, A.P. State Council of Higher Education that in pursuance of the directions of the Court expert Committees were constituted for the purpose of deciding certain objections raised regarding question which appeared in the EAMCET--96 Medical entrance examination. Experts drawn from different levels of academic fields as per the communication had/have found the objections relating to 18 questions out of the 25 as mentioned in W.P. 11247/96 sustainable including 11 star marked questions in the published key. The Committee also examined other objections and finally concluded that objections relating to a total number of 38 questions including the above were sustainable. The Chairman of the Council in his report suggested two alternatives to redress the grievances of the students, namely, (1) adding one mark each for the above 38 questions to each candidate and (2) ignoring the said 38 questions and valuing the paper for the maximum of 162 questions instead of 200 questions and raising it proportionately to the total marks of 200 and fixing the relative ranks by retaining the minimum cut off marks for eligibility. Learned Advocate General concurred with the report and showed preference for the second alterantive as a reasonable solution to redress the grievances of the students. Learned counsel for the petitioners, however, contended that neither of the two were reasonable methods to meet the grievances of the students and to validate the Medical test examination. The Court also took notice of the reports and, some other petitioners and passed the following order on 8-7-1996.
"The Court has, in the meawhile, received several representations, some however carry general observations, some are cryptic and only suggestive and some do not appear to be relevant suggestive and some do not appear to relevant except that they convey the grievances of the students and their parents. There are some, however, which contain specific informations and they appear also to seek interference by the Court in the affair of the Medical Entrance Examination and result on the basis of the specific grounds that they claim to make out. One such application/representation received by the Court is on 4-7-1996 which contains specific allegation and the prayer that the same be treated as a petition for directing the concerned officials probing into the matter to verify the genuineness of the informations. Another on the same lines but with different informations is received by the Court on 8-7-1996 with a prayer to treat the same as writ petition and to cancel EAMCET Examination and direct for a fresh examination. This representation/petition mentions the name of Prof. Eswara Reddy who also is a suspect in the Engineering Entrance question leakage matter and that there is some leakage of information from the computer room of EAMCET-96.
When doubts are created and they persist, they do give birth to rumours which go around and most of which do not appear to be of any good either for the cause of the students or for the cause of the administration. While there may be some students who have genuinely believed that they have suffered on account of such illegal acts on the part of some of the Administrators who are allegedly responsible for the leakage including the Convenor of the Examination, there will be some who may not be ready to acknowledge that they are going to be benefited by the leakage of the question papers or of being beneficiaries. No one can, however, demand that, anything which is illegal and unjust be allowed to prevail upon public interest which in all respects, must prevail. It is necessary that the mist is cleared and the interest of the innocent victims of the high-handed acts of some of the Administrators and the parents of the students or the students themselves is protected. Taking the facts as above and all circumstances, we are of the opinion that the CBCID investigating the case be asked to produce before the Court the statement recorded in course of the investigation of the key suspects including Prof. Eswara Reddy and to investigate into the allegation in the letter by one Anand Rao, Ashok Road, Himayath Nagar, Hyderabad dated 24-6-1996 (received in Court on 4-7-1996) and produce also the statement of the person named therein as well as findings, if any, after investigation into the allegation of the leakage of information from the computer room of EAMCET96.
Put-up after two weeks for further orders. Let the two communications, by Anand Rao dated 24-6-1996 and A. Anila Sree dated 8-7-1996, be sent in a sealed cover to Additional Director General-cum-Head of the CBCID, in course of the day. In the meanwhile the Chiarman, State Council of Higher Education is directed to proceed with the preparation of the result of the Medical Entrance Examination on the basis of the (i) second alternative suggested by him as well as (ii) on the basis of "qualifying examination result only and also (iii) prepare a third list of such candidates who are found in order of merit whose names are covered in the result sheet prepared on the basis of the 1st alternative as well as the 2nd alternative suggested by him, and furnish to the Court in a sealed cover."
5. Petitioner's hind sight and the Court's reluctance to accept the preliminary counter affidavit in respect of Engineering examination that leakage was confined to students who appeared in the alleged grand tests which the coaching centre of the third respondent conducted, and the Court's direction to investigate the matter further provided sufficient materials for the first respondent and the Chairman of the A.P. State Council of Higher Education to cancel the entire Engineering examination.
Learned Advocate General, however, brought to the notice of the Court that since the qualifying examination results of the candidates were not available as they are taken from the candidates only after they are called for interview after the result of the entrance examination is published, it was not possible to prepare a merit list of the candidates either by combining the marks obtained by them in the entrance examination and the qualifying examinations or only by taking into account the marks obtained by them in the qualifying examination. Medical entrance examination result, thus, has since been published and results have been made available to the examinees.
6. A large number of writ petitions have since been filed; W.P. 15219/96 and batch being for appropriate writ, order or direction to the respondents to produce the answer scripts of the petitioners, to value them correctly and to 'award correct marks and consequently to revise the ranks and provide them seats in MBBS course of studies; W.P. 15564/96 and batch raising an additional ground that Section 3 of the A. P. Educational (Regulation of Admission and Prohibition of Capitation Fees) Act, 1983 is ultra vires and thus to declare that the admissions to Medical Colleges in the State on the basis of the entrance examination results are conducted under an invalid law; W.P. 15628/ 96 and hatch seeking issuance of a writ of mandamus declaring the exclusion of 38 questions in the valuation of the answer papers as illegal, arbitrary, unreasonable and irrational and consequently to direct the respondents to take into consideration all the 200 questions and to re-assign the ranks. The Court has received a large number of letters and telegrams but they do not expand either the grounds or the scope of the controversy in respect of the Medical examination. In some of the petitions, however, a prayer has been made to cancel the entrance examination (Medical) on the sole ground that 38 questions have been found objectionable and not sustain able.
7. Candidates who have aspired for entering into the Engineering course of study in the Stale have already been subjected to a fresh entrance test examination and their results have published; but this has happened only because it has been found that the questions had leaked out before the examination was held.
The Medical entrance examination results have been published but have entered into a serious controversy as 38 out of 200 questions which were put to the candidates have been found objectionable. In course of the hearing the Court has been addressed mainly on (1) whether exclusion of 38 questions for evaluating the answers of the candidates who appeared in the entrance test has rendered the entire examination invalid (2) whether the determination of merit or rank or rank of the candidates by excluding 38 questions is permissible at all (3) whether any irregularities have been committed in evaluating the answers of the candidates and assigning ranks to them even on the basis of answers given by them for 162 questions only and (4) whether Section 3 of the A.P. Educational (Regulation of Admission and Prohibition of Capitation Fees) Act, 1983 is invalid and consequentially the entrance examination and/or selection of candidates for admission of MBBS course on the basis of the entrance examination results is invalid.
8. Regulation of admission into Educational Institutions is introduced in the State by the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fees) Act, 1983 (Act V of 1983), Section 3 1 therein provides inter alia as follows :--
"Regulation of admission into educational institutions:-- (1) Subject to such rules as may be made in this behalf, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test con ducted by such authority and in such manner as may be prescribed :
Provided that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the common entrance test conducted as afore said."
The above, however, is subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled. Castes, Scheduled Tribes and Backward Classes and other categories of students as may be notified by the Government in this behalf and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 (the latter being the law regulating the admissions to educational institutions). By Act 12 of 1992 a special provision was introduced in the said Act in respect of unaided private educational institutions, which provided inter alia, as follows :--
"Notwithstanding anything contained in Section 3 but subject to such rules as may be made in this behalf and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974, it shall be lawful for the management of any unaided private engineering college, medical college, dental college and such other class of unaided educational institutions as may be notified by the Government in this behalf to admit students into such colleges or educational institutions, to the extent of one half of the total number of seats from among those who have qualified in the common entrance test or in the qualifying examination, as the case may be, referred to in sub-section (1) of Section 3 irrespective of the ranking assigned to them in such test or examination."
The Court, however, has struck down this provision (Section 3-A of the Act) in Kranth Sangram Parishath v. Sri N. Janardhan Reddy, . A Full Bench of the Court in the said judgment
has held that Section 3-A has failed to satisfy twin tests of reasonable classification and rational nexus sought to be achieved by classification and was violative of Art. 14 of the Constitution. The same is also invalidated on the ground that legislative field regarding collection of fee and prescription of a standard for admission to professional and degree colleges was fully occupied by Section 12-A and Section 10 of U.G.C. Act, 1956 and All India Council for Technical Education Act, 1987 respectively and education is a subject in list III in the concurrent list, subjects in respect of which the Union and the State both are competent to legislate. Yet another ground of invalidity noticed in the judgment was that Presidential assent was needed under Clause 2 of Art. 254 of the Constitution and since the assent as not available as declared under Clause I of Art. 254 of the Constitution, it was void. Attack on Section 3 has been made precisely on the very same grounds on which Section 3-A has been declared invalid. The U.G.C. Act, 1956, All India Council for Technical Education Act, 1987 and the Indian Medical Council Act, 1956 have been referred to in extenso. Nothing, however, has been shown in the said Acts for us even remotely to give the impression that it is a serious endeavour on the part of the petitioners to question the vires of Section 3 of the Act. In State of M.P. v. Nivedita Jain, the Supreme Court
considered the effect of an executive order completely relaxing conditions as envisaged in the regulations of the Medical Council of India relating to minimum qualifying marks for selection of students to Medical Colleges in case of S.C. and S.T. candidates. The Supreme Court has observed (at pp. 2056-2057 of AIR) :--
"......It is well-know that all over India candidates who aspire to get admission to Medical Colleges and who are otherwise eligible or qualified for admission to medical courses on the basis of the provisions contained in Regulation I of the Council, cannot all be admitted into the medical college or institution for dearth of seats. By way of solution of this problem, the Council appears to have thought it fit to suggest the procedure which will have the effect of selecting such candidates on the basis of merit only. The procedure suggested is intended to do away with nepotism and favouritism and any unfair practice in the matter of such admission, as the procedure recommends merit to the criterion. The Council itself appears to have apprehended that what is contained in Regulation II is merely in the nature of a recommendation and this is evident from the language used in Regulation II particularly when the same is contrasted with the language used by the Cojuncil in Regulation I. Regulation II begins with the words 'selection of students in a medical college should be based solely on merit'. We are of the opinion that the use of the words 'should be' in Regulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of a recommendation. Regulation I which lays down the conditions or qualifications for admission into Medical Course comes within the competence of the Council under Section 33 of the Act and is mandatory and the Council has used language to manifest the mandatory characger clearly, whereas Regulation II which deals with the process or procedure for selection from amongst eligible candidates for admission is merely in the nature of a recommendation and directory in nature, as laying down the process or procedure for selection for admission of candidates out of the candidates eligible or qualified for such admission under Regulation I. Regulation II recommending the process of selection is outside the authority of the Council under Section 33 of the Ad and the Council has advisedly and deliberately used such language in Regulation II as makes the position clear and places the matter beyond any doubt, There is another aspect of the matter which also goes to suggest that Regulation II is merely directory and does not have any mandatory force. Apart from reservations of seats for Scheduled Castes and Scheduled Tribes categories and other reservations, reservation of seats is commonly made for being filled up by nomination. In the instant case before us, it appears that the seats not exceeding three per cent are reserved for the nominees of the Government of India apart from other reservations. These nominees of the Central Government do not have to sit for any pre-medical examination to qualify themselves for selection to the medical colleges. They must be course be eligible for admission in the sense that they must have the necessary qualification for admission in accordance with Regulation I. The candidates eligible under Regulation I are selected by virtue of nomination and there is no question of any premedical tests for such candidates nominated by the Central Government. If Regulation II could be considered to be mandatory, there could be no such nomination of candidates by the Central Government."
We have good reasons in the instant case to take notice of the principle that the conditions or qualifications for admission into medical course comes within the competence of the Medical Council under Section 33 of the Indian Medical Council Act, 1956. No one who does not possess the qualification for admission can be admitted even if he has cleared the entrance test. The process or procedure for selection from amongst eligible candidates for admission, however, is not in the same category. It shall be necessary to see that the process of selection is not arbitrary, that it withstands the test of rationale and the nexus with the object of selecting the best and the excellent. All who have passed to get admission into medical colleges and who are otherwise qualified for admission to medical course cannot be admitted for dearth of seats By way of solution of this problem such a procedure has to be evolved which will on the one hand give no opportunity to resort to nepotism and favouritism and any unfair practice and on the other hand ensure that merit is adopted as the criteria for such selection. We are not required in this case to go into this aspect any further than for reiterate that all authorities and pronouncements of the Courts including the Supreme Court are unanimous that the content and reach of the great equalising principle enunciated under Art. 14 of the Constitution of India must not be subject to a narrow, pendentie or lexicographic approach. Equality adynamic concept with many aspects and dimensions. It cannot be imprisoned within traditional and doctrinate limits. Permissible classification must satisfy two conditions, namely, (1) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) the differentia must have a rational relationship to the object sought to be achieved by the statute in question. The differentia and object are different themes. The object by itself cannot be the basis of the classification. Classification, however, cannot be judged with mathematical niceties and perfect equality. It can be founded on different basis, namely, geographical area according to the objects or the occupations or the like. It is also within its reach to see that without classification unequals do not become more unequals and so a classification is made for making unequals equal. In A. P. State v. Balram, the Supreme Court has struck down the reservation of 40% of the seats for Higher Secondary Course (Multipurpose candidates) stating (at p. 1386 of AIR).
"We have referred to the averments contained in the counter affidavit of the two officers above as they form part of the present record and they have also been relied on for one purpose or other by both the State and the respondents. The above averments clearly establish that even according to the State the marks obtained in the entrance test, according to the rules, is the decisive test for the purpose of considering the merits of the candidates, who seek admission to the medical college. These averments clearly show that there is absolutely no justification for making a special reservation of 40% in" favour of H.S.C. candidates when once a common entrance test is held for all the candidates and selection is made on an assessment of merit of marks obtained at the said examination."
The Supreme Court has in P. K. Goel v. U. P. Medical Council, stated that the best procedure in all
circumstances of a selection of candidates without their going through different sources is to make them enter the course of studies through an entrance examination. The Supreme Court has said in P. K. God's case as follows (at pp. 1476-1477 of AIR) :
"It is not necessary for us to labour on the point in issue inasmuch as the point stand? concluded by the following decisions of this Court in State of Rajasthan v. Dr. Ashok Kumar Gupta, and in Municipal Corporation of Greater Bombay v.
Thukral Anjali Deokumar, . In Dr. Ashok Kumar
Gupta's case, a benefit to the extent of 5% in total marks was given by way of collegewise institutional preference in Rajasthan and the same was struck down by this Court on the ground of being unreasonable and arbitrary and violative of Article 14 of the Constitution. In Municipal Corporation of Greater Bombay v. Thukral Anjali Deokumar (supra) the question was regarding admission to Post-Graduate Degree/Dip loma Courses in medical colleges run by Municipal Corporation and State Government. Collegewise institutional preference was given under Rule 4(A) of Rules for admission framed by Bombay Municipal Corporation and Rule 5 framed under resolution admission of Maharashtra Government. This Court held as under (at p. 1203 of AIR):
"There is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such classification. By such classification or collegewise institutional preference, merit has been sacrificed, far less it has been preferred. When the university is the same for all these colleges the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post-graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In such circumstances, collegewise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all."
Since there is nothing to show in respect of the procedure for selection as envisaged in Section 3 of the A.P, Act 5 of 1983 that it has any element of arbitrariness or discrimination or that the field is occupied by any Central enactment, it is not possible to countenance the contention that it is invalid. The petitioners have made up the contention of absence of Presidential assent etc. to the Act only under clear misapprehension without any basis.
9. A Division Bench of the Madras High Court had the occasion to consider the efficacy of selection of candidates on the basis of the marks obtained in the entrance test and has noticed its importance in removing the inequality which may be found on account of difference in syllabus and the standard of examination and even the examiners of the students who come from different universities and institutions. In the case of Association of Private Schools Affiliated to the CBSE v. The State of Tamil Nadu, (1992) 2 Mad LW 155 the Madras Court has referred to the Judgment of the Supreme Court in Dr. Jagadish Saran v. Union of India, and noticed in particular in the said Judgment the following :
"measurement of merit is difficult and the methods now in vogue leave so much to be desired, that swearing by marks as measure of merit may even be stark superstition. But, for want of surer techniques, we have to make-do with entrance tests, and at any rate, save in clear cases of perversity or irrationality, this is ordinarily but of bounds of Courts."
The dispute, however, in the instant cases has assumed a different colour in respect of the Engineering Entrance Test and, to say the least, has suffered the most heinus perversity of the question papers having been leaked out before the examinations were held and Medical Entrance Examination is found to have been held for 200 questions for 200 marks of which 38 questions have been found to be objectionable and not fit to be sustained for the entrance examination. Madras case Association of Private Schools Affiliated to the CBSE v. The State of Tamil Nadu, (1992 (2) Mad LW 155) was one in which Central Board of Secondary Education had granted to its students standardisation marks to all its students who had passed Higher Secondary Examination. The Court did find fault with the valuation in the name of standardisation/moderation but noticed that the process of moderation as loosely stated or standardisation as internationally understood in academic circles is the process for the evaluating marks considering the various factors. Several difficult factors influence the overall performance of the students touching the upprepared as well as the bright students. When all candidates suffer the same handicap and a common factor is applicable, to all of them, keeping in mind the nature of questions, responses and difficulties experienced by the students during examinations, recourse it taken to standardisation. It is assumed and statistically assessed that performance is capable of being assessed as a stable factor reflecting the overall proficiency at various levels of accomplishment of the students. The Court has also noticed that the statistical assessment in one sense mean description of measurements, as in the case of distribution of marks or scores for a test or the output figures for a factory and in the other sense mean, an inferential method, which goes beyond pure description and attempts to discern a pattern in what appears at first sight to be a haphazard collection of data. The views of an expert R. B. Morrison are noticed in the said judgment who has said besides other things, 'the language of statistics is not the language of certainity, for statistics cannot prove anything, but the language of probability'. In Rakesh Gupta v. Hyderabad Stock Exchange Ltd., a Division Bench of this Court has referred to R. D. Agarwal's Law of Education and Educational Institutions in India, 1982 Edition, Volume II and quoted from it the passage :
"Award of moderation marks:-- Moderation marks are awarded to all the candidates, obviously for the reason that the moderation marks are meant to make up or compensate-
(a) for any disadvantage suffered by the examinees in securing the marks on account of unreasonably stiff question paper set up by any examiner, or
(b) for having included a question or questions outside the syllabus is any question paper, or
(c) for such other valid reasons considered good by the concerned University or academic body."
10. We have already noticed that the first and second respondents have taken out 38 questions out of 200 questions of the Medical Entrance Test which have suffered several such infirmities that they cannot be used for judging the overall proficiency of the candidates who have appeared in the entrance test. The two alternatives suggested by the Respondents are (1) give marks for all the 38 questions to the students whether they have answered those questions or not and (2) delete 38 questions out of the 200 questions and judge the proficiency of the candidates on the basis of the answers given by them for the remaining 162 questions. The Court's attempt to have some other methods of judging the proficiency of the candidates with reference to their marks in the qualifying examinations has not succeeded as marks obtained by the candidates in the qualifying examinations are not available and Section 3 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act 5 of 1983) mandates that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the common entrance test. Since common entrance test is the best out of all the other modes of judging the proficiency of the candidates the Court has to confine to the question whether" proficiency has reasonably been tested by deleting 38 questions and evaluating the merit of the candidates by taking their answers to 162 questions only for marking or all the students should be given 38 marks and their answer books be judged for the remaining questions i.e., 162 questions only. We have reasons to hold that 38 wrong questions out of 200 questions have caused serious inconvenience to the candidates and quite a few candidates who may not be less proficient than those who are selected would have suffered for the reason of the disadvantage caused by putting as many as 38 wrong questions in the entrance examination. If, however, the Court has to choose between the two methods suggested by the respondents 1 and 2 it will prefer deletion of the 38 wrong questions and judging the proficiency of the candidates on the basis of the answers which they have given for 162 questions and accordingly converting 162 marks to 200 marks to assign merit to them. It shall keep the damage at the minimum and merit, though evinciny of a serious wrong done by the respondents 1 and 2 shall still receive its due.
11. It is only with a view to keep the damage at the minimum that we hold that Medical Examination results can be published on the basis of the marks allotted to the candidates for their answers to 162 questions only and not because we are convinced that respondents have conducted the entrance examination carefully and properly. Respondents 1 and 2 have not been able to satisfy us that they have been following a foolproof procedure in conducting the entrance test examinations of that personnel deployed to conduct entrance test examination have been above board. Before the Chairman, State Council of Higher Education produced before the Court the result sheets several representations and petitions were filed alleging that answer books were not properly evaluated and that candidates were not assigned their proper and correct ranks. Some of the candidates demonstrated before the Court that the position/rank at which they Were shown was not correct. The Chairman of the Council explained to the Court that it happened only in eleven (II) cases as the computer committed error and their results have accordingly been corrected and they have been informed. Since doubts have been created and there are good reasons apart from the computer error to think that everything has not been well with the entrance examination (Medical) also, it appears to us reasonable that all such candidates who have doubts about the rank or position assigned to them be given opportunity to get their answer books/sheets re-checked.
12. When we received the complaints in course of the hearing of the petitions, and petitions in particular asking for the production of the answer scripts, we felt persuaded and as we have noted earlier called for some answer scripts to finally find that there were mistakes in evaluating the answer scripts and awarding correct marks in some cases, but they were included in the eleven answer scipts which on revision were found to be computer errors and were duly corrected and correct marks were awarded to the concerned candidates. Since we have, however, felt not fully satisfied by the method of evaluation we see nothing wrong in candidates expressing doubts about the valuation of their answer scripts and at least entitled to seek verification once over again to allay the doubts as to the correctness of the awarding of marks and determining accordingly their respective rank for the purpose of selection of candidates on merits. This we have felt not merely on the general perception that even entrance examination ranking can at best be a probable and nearest possible assessment of merit of the candidatess particularly, amongst those who very near each other and some of them stand at the elimination point merely because some others are found to have performed some what better than them. The reason for us to take this view is mainly to be found in the events that have caused cancellation of the EAMCET (Engineering) examination and elimination of as many as 38 out of 200 questions of the EAMCET (Medical) examination. We are persuaded for the said reason to hold that candidates who have doubts about correctness of the evaluation of their answer scripts may represent their individual cases to the Chairman, A.P. State Council of Higher Education, who shall take out the answer script of such candidates and get them manually evaluated by such examiners who are well versed and whose integrity is not in doubt.
13. We are not inclined, however, to issue any writ or direction to cancel the entrance test examination of EAMCET (Medical) although as we have observed earlier cancellation of 38 questions out of 200 questions has caused substantial erosion into the assessment of merit of the candidates. On verification of the scripts it is found that students aspiring for admission into Medicine have been examined for assessment of their merit in the subjects of Physics, Chemistry and Biology and questions are fairly distributed including the 38 questions which are cancelled, in all the three subjects. A student who is more proficient in Biology and if all Biology questions were in order, he would have secured full marks for his answers to Biology questions. Similarly a student who is more proficient in Chemistry could have answered all Chemistry questions and a student who is more proficient in Physics could have answered all Physics questions. Cancellation of 38 questions has created imbalance and a candidate who was more proficient in one or two subjects and less proficient in the other two or one subject for the reason of cancellation of 38 questions can genuinely feel that he has gone down in merit because all questions in all subjects have not been evaluated. This, however, may be a grievance of such individuals, but one who is proficient in all the three subjects and irrespective of the number of questions in one or the other subject is good enough to hold a high position or rank is obviously better than the other who is not proficient in all subjects. Since almost all candidates prepare for the examination and they prepare for all the three subjects they are expected to be ready equally in all the subjects. Such hardship to individuals thus, in our opinion, cannot be taken as a ground to cancel the examination as a whole. Grievances that some of the candidates spent valuable time in answering the said 38 questions, that it is wrong to say that all the 38 questions are defective and fit to be cancelled, or that there are some questions in the remaining 162 which suffer one or the other defect which has caused the cancellation of 38 questions have been voiced but they are not supported by any substantial material, except that in some petitions and representations reference is made to the information of some such persons who are either teachers or who have some claim of knowledge of the subjects and the system of evaluation. We do not, however, have any serious cause to doubt the deletion of the questions by the Committee of the Experts appointed by the Chairman of the A.P. State Council of Higher Education. The Court can hardly afford to entertain suspicion that the Experts Committee has wrongly assessed the questions for cancellation. When handicap is common to those who are successful and to those who are unsuccessful, to those who are high in the merit list and to those who are low in the merit list, it is not a cause for finding a serious fault with the conduct of the examination and cancel the same. We are aware that the Convenor for the EAMCET-96 Engineering and Medical was one and the same person and if Engineering questions were leaked out Medical questions could also be leaked out. Investigation conducted by the police, however, has shown that only Engineering questions leaked out and not Medical questions. In course of the hearing of the applications when such complaints were received by the Court a specific direction was issued to investigate into the matter. Nothing, however, to entertain the view that Medical questions were leaked out has come out of the investigation. Some petitions have been filed to direct that the 38 excluded questions should also be included and answers to all 200 questions be taken into consideration. When Experts Committee, however, has found that 38 questions are fit to be cancelled, it is not understandable how one can hold that answers to those 38 questions should also be considered for evaluation of the answer scripts. We have thus, no reason to direct the respondents to take such a course for determining the merit of the candidates. The respondents or the computer used by them, it appears, has worked as the villain and to candidates marks allotted for the said 38 questions are also communicated along with the marks allotted to them for answering 162 questions only. Since the defect was in the key answer and the computer was used for the purpose of evaluating the answer scripts, even for wrong answers the computer has allotted marks as shown in the key. One, however, has to ignore the marks allotted to wrong answers in the key since the so-called answer by the candidate to such a question cannot be treated to be real or the correct answer.
14. While the law as in Section 3 of Act 5 of 1983 is one which conforms to the accepted method of testing the proficiency of the candidates for admission to the Medical course of the study, entrance examinations conducted in the State year after year have been found afflicted by unscrupulous behaviour of the persons who have been made responsible for conducting the examinations or by errors which in all events and situations should be avoided. Whether overt or latent, presence of such maladies has discredited the system. The Government of the State which has shown so much of concern, we hope and trust, shall do the needful to ensure that in future entrance test examinations are conducted fairly and nothing is left to exacerbate or accelerate the decline. We invited in course of the hearing suggestions for long term solution and noticed that parties in spite of their prejudices sincerely felt that there should be no occasion left for litigations that divide the students and parents. In our anxiety in this behalf we have elicited informations from the learned Advocate General and through him obtained informations how such entrance tests are conducted in the neighbouring States. We have any number of eminent educationists in the country and in the State who when called to device a foolproof method can evolve one that will have acceptance of all concerned. As it is stated, "when there is a will there is a way", it is felt by all concerned, the Government of the State must constitute a Committee of Experts and if necessary take the advice of the Ministry of Human Resources Development, Government of India, We have no hesitation in recommending for the constitution of the Committee of Experts to make recommendations with respect to the system and "procedure for conducting the EAMCET examinations as well as other examinations without any delay. There are good reasons for any sincere Government to feel embarrassed when such allegations are levelled and quite a few are found true to discredit the system. If there is any delay in constituting the Committee and obtaining recommendations and implementing from the next examination a foolproof system, there is likelihood of repetition of similar allegations in future. This time it is EAMCET Engineering examination which has to be cancelled, next time it may be Medical or both Engineering and Medical.
15. To conclude:
It will not be proper to cancel the Medical EAMCET-96 or to direct; that marks, for all the 200 questions be taken into consideration for reckoning the merit of the candidates. Merit allotted to the candidates on the basis of the answers for 162 out of 200 questions in EAMCET-96 (Medical) (examination does not suffer from any such deficiency which will render the examination as a whole invalid. Candidates who have, however, doubts about the merit/ position allotted to them on the basis of the answers given by them for 162 questions out of 200 questions in EAMCET -96 (Medical) be given opportunity to represent to the Chairman of the A.P. State Council of Higher Education and when such representations are received the Chairman must take out their answer scripts, get them manually evaluated and reissue the memo of marks to them. Section 3 of Act 5 of 1983 is valid; The entrance test examination is the most efficient mechanism for testing the proficiency for admission to Medical and Engineering Course of studies.
16. In the result W.P. Nos. 11247/96, 15564/96, 15964/96, 16116/96, 1571/96, 15984/96, 16058/96, 15769/96, 15628/96, 15713/96, 15742/96, 15786/96, 15844/96; 15846/96, 15853/96, 15896/96, 15908/96, 15954/96, 15985/96, 15928/96, 16066/96, 16076/96, 16085/96, 16102/96, 16118/96, 16120/96, 16124/96, 16038/96, 15285/96, 15435/96, 16040/96, 15932/96, and 15890/ 96, are dismissed subject to the observations and recommendations to the Government of the State as above. Writ Petition Numbers 15219/96, 15991/96, 15418/96, 16128/96, 16129/96, 15741/96, 15872/96, 15521/96, 15992/96, 15744/96, 15690/96, 15743/96, 15721/96, 15520/96, 15424/96, 16131/96, 16130/96, 16105/96, 15880/96, 15934/96, 15841/96, 16081/96, 16082/96, 16046/96, 16049/96, 15978/96, 15979/96, 15686/96, 16069/96, 16072/96, 16108/96, 15748/96, 15618/96, 16121/96, 15258/96, 16074/96, 15714/96, 15828/96, 16079/96, 16114/96 and 16055/96 are allowed to the extent that in case any candidate (even candidates besides the petitioners) makes representation to the Chairman, A.P. State Council of Higher Education by 20-9-1996, he shall take out the answer script of the candidate concerned, get the same manually examined and issue afresh memo of marks and accordingly the rank of the candidates. On the facts and in the circumstances of the case there shall be no order as to costs.
17. Order accordingly.