JUDGMENT

B.C. Basak, C.J. and G.C. Bharuka, J.

1. There are various applications raising common points and we have gone into the same. We have heard learned Advocates appearing for the petitioners, the State and the private respondents.

2. The facts of this case are as follows. There was a Medical and Dental Admission Test of 1991 (hereinafter referred to as the said 'Test'). The relevant prospectus for admission therein would appear from Annexure-I in C.W.J.C. No. 4833 of 1991, which has been described as Medical, and Dental Admission Test (M.D.A.T.), Bihar, 1991. The relevant paragraphs of the prospectus for admission, which is relevant for the purpose of disposal of these applications, are set out hereinbelow:

(1) Of students to the First Year of the M.B.B.S. Course of Patna Medical College, Patna; Darbhanga Medical College, Laheriasarai; Rajendra Medical College, Ranchi; J.N. Medical College, Bhagalpur; Mahatma Gandhi Memorial Medical College, Jamshedpur; S.K. Medical College, Muzaffarpur; Nalanda Medical College, Patna; A.N. Magadh Medical College, Gaya; Patliputra Medical College, Dhanbad and First Year B.D.S. Course of Patna Dental College, Patna.

(2) Candidates for admission to the 1st Year M.B.B.S. Course and to the 1st Year B.D.S. Course shall have to appear at a competitive test and will be selected for admission to the above Course on the basis of merit according to the result of the test. They have to secure at least 50% marks at the test (Scheduled Castes/Tribes candidates have to secure at least 40% marks). The Government may grant relaxation in case sufficient number of S.C./S.T. candidates does not qualify for admission.

(3) Standard of Examination:

As 10+2/Higher Secondary/I.Sc. or equivalent examination recognized by the Universities of Bihar. No detailed syllabus is prescribed.

(4) Subject of Examination; Physics, Chemistry and biology (Botany & Zoology).

(5) Medium of Examination: English.

(6) Distribution of Marks:

Subject Full marks

Physics 40

Chemistry 40

Botany 20

Zoology 20

(7) Pattern of Examination:

Questions will be of multiple choice/objective type. Against each question there will be given 5 different answers numbered 1,2,3,4 and 5, out of which one will be correct answer. The serial number of the answer thought to be correct one has to be written on the answer-sheet in the empty box under the serial number of that question. A sample copy of the answer-sheet is enclosed.

There will be 3 sets of question booklets,. Namely, A.B.C. having the same questions but in three different orders. Each booklet will be attached with answer-sheet of the same set.

Each candidate will be supplied with only one particular set of question booklet-cum-answer-sheet and he is cautioned to fill the answer-sheet as per set supplied to him/her.

(8) Schedule of Examination:

(a) The examination will be held in one sitting and will be of two hours duration.

(b) Date of examination: 7-7-1991.

(c) Last date of receipt of application: 6-6-1991.

NOTE: The schedule of examination may change under unavoidable circumstances.

23. Inter se merit among candidates securing the same aggregate marks at the competitive test shall be determined on the basis of marks secured in Biology Group (Botany & Zoology) at the test. In case of a tie at this stage. The decision will be made on the basis of marks secured in Zoology at the test. In case of continued tie the decision will rest on the marks obtained in Chemistry in the test. If it still remains indecisive, the candidate passing, the qualifying examination earlier will get preference. If there is still a tie between the two candidates, then he/she who is senior in age would get preference over the other.

3. What has happened in this case is that pursuant to the same the examination was sought to be held at nine centers at different places in the State of Bihar on a particular date and on a particular time and on the basis of common examination papers. These examination papers at every centre consisted of three sets, A, B and C in order to prevent any "copying". What has unfortunately happened is that though in respect of other centers the examinations were duly held but in respect of Dhanbad Centre, no such examination could be held. According to the State such examination at Dhanbad Centre could not be held in view of some trouble created by some outsiders. What ever may be the reason, the admitted position is that the examination at the centre could not be held not because of any fault on the part of the authorities in charge of holding such examinations. As a result of the same the examination at the Dhanbad Centre was cancelled in toto. In this context, we may point out that we shall proceed on the basis that cancellation of such examination at Dhanbad Centre was valid and proper, inasmuch as the validity of the same has not been challenged in these proceedings. On the- basis of the pleadings of this case we are also satisfied that it is not because of any fault on the part of the authority concerned that such examination could not be held. Accordingly what the Government did after such cancellation was that it directed that the examination will be held on 28th July 1991, afresh so far as the Dhanbad Centre is concerned.

4. In these circumstances, these petitions were filed, C.W.J.C. No. 4833 of 1991 was filed on 22nd July 1991 and other petitions were filed on about that date. The main prayer in the said petitions was that no such test should be allowed to be held regarding the Dhanbad Centre alone but that such test should be held afresh in respect of all these centers including the centers in respect of which there is no cancellation.

5. Counter-affidavits have been filed in this case. We need not refer to the same. The only relevant and admitted facts are those, which have been set out hereinabove.

6. Different sets of learned Advocates have appeared and made various submissions. However, the only real submission made is that the "Prospectus" refers to a competitive test. Holding a separate examination in respect of a particular centre would not amount to a "competitive test" within the meaning of the said Prospectus, in this connection, our attention was drawn to the different clauses of the said Prospectus which was have quoted hereinabove, Let it be recorded that in this connection no reliance is placed on any other clause or any other document. The only reliance is placed on this Prospectus. In this connection reliance is placed by the learned Advocates on the following decisions, A.P. Public Service Commission v. B. Sarat Chandra ; Principal, King George Medical College v. Vishan Kumar AIR 1984 SC 111; Dinesh Kumar v. Motilal Nehru Medical College, Auahabaa ; Emperor v. Nilkanth Balaji AIR (30) 1943 Bom 72; State of Kerala v. T.P. Koshana , paragraphs 13 to 17, Jadish Saran v. Union of India .

7. In this context, we may point out and as it appears from the records altogether 18,753 persons appeared in the examination held in all other centers whereas only 1,458 persons appeared in the Dhanbad Centre. It may be further pointed out that in total 400 candidates have succeeded out of those who had appeared in other centers and only 14 persons have succeeded in the re-examination held at Dhanbad Center. We may point out further that pursuant to the Court's direction such re-examination at Dhanbad Dentre took place but it was made clear that the results of the same shall abide of the result of this writ application. The publication of the results was also allowed on that basis. Unfortunately, it appears that none of the petitioners have succeeded in such re-examination, So far as the private respondent is concerned, he is one of the successful candidates.

8. Before we deal with the main question, we may deal with one other contention, which was sought to be argued. It was submitted that the examination papers in original examination and re-examination were different. However, there was no serious argument before us to this effect. In this context we may point out that we directed the authority concerned to produce the different sets of papers in respect of the original examination and also the re-examination at Dhanbad Centre, inspection of which was given to the learned Advocates appearing for the petitioners. They could not seriously point out that there are any basic or fundamental differences between the two examinations papers. In any event this Court is not the appropriate authority as it has not the expert and special knowledge to decide that the questions in the re-examination were completely different from the first sets.

9. The only point sought to be argued against holding such re-examination at the Dhanbad Centre separately was that this will not amount to a" competitive test" within the meaning of the said Prospectus, The substance of the argument is that the "Prospectus" contemplated a competitive test and if such re-examination of one centre is allowed separately, then this cannot be treated as a competitive test.

10. We shall first deal with the decision, which were placed before us.

11. The decision in the case of Emperor v. Nilkanth Balaji Pathak, reported in AIR 1943 Bom 72, in our opinion, has no application in the present case at all. That case related to the question of interpretation of a provision in the Bombay Prize Competition Tax Act, 1939. This was an Act to regulate and levy a tax on prize competitions in the province of Bombay; Section 2 refers to the prize competition. Section 4 requires a licence to be obtained by the promoter for conducting a prize competition. It was the case of the prosecution that by promoting the scheme the respondents had contravened the provisions of the Act and committed offence punishable under Section 9. The learned Magistrate took it or granted that a scheme of this kind is a "competition". The Government of Bombay against the acquittal by the Sessions Judge preferred an appeal. The only point for consideration before Division Bench of the Bombay High Court was as to whether a scheme of the nature described could properly be described as a "competition". In this context, reference was made before us to the following observations:

Competition by the derivation means simply 'seeking together'. According to the definition in Webster's Dictionary, it is the act of seeking, or endeavoring to gain, what another is endeavoring to gain at the same time,

We are of the opinion that tub case has no relevance. That case dealt with the question of "competition" under an Act and not with the question of "competitive test" or any provision of any Act, which is in pari materia. Accordingly, this case is of no assistance to the petitioners.

12. The decision in State of Kerala v. Kumari T.P. Roshana and. Ors. , was relied on by respondent No. 7. In

this connection reliance was placed on paragraphs 12 to 17. There the question was related to striking down a transitory scheme of admission to the medical colleges of the State evolved by the Government but invalidated by the High Court on the ground of discrimination in the distribution of the seats among the eligible students drawn from two separate regions of the State. There the different judgments were referred to on the question of discrimination and the Supreme Court held, differing from the reasoning of the Full Bench and learned single Judge, that there was substantial difference in the pre-degree courses and evaluations between the sister universities within the same State so that the breach of Article 14 by equal treatment of the marks unequally secured by the examinees in the two universities may be spelt out. In this context, it was pointed out that every inconsequential differentiation between two things does not constitute the vice of discrimination if law clubs them together ignoring venial variances. Article 14 is not a voodoo which visits with invalidation of every executive or legislative fusion of things or categories where there are no pronounced inequalities. Mathematical equality is not the touchstone of constitutionality. In this context it was also observed that:

The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. Indeed there may be differences among the colleges under the same University, among the examiners in the same University. Such fleeting factors or ephemeral differences cannot be the solid foundation for a substantial differentiation which is the necessary per condition for quashing an executive or legislative act as too discriminatory to satisfy the equliterian essence of Article

14. The functional validation of the writ jurisdiction is an appropriate examination of the substantiality of the alleged disparity.

This is relevant on the question of inequality. Relying on this decision it was sought to be argued on behalf of the private respondents that there cannot be any difference merely because a re-examination was to be held in respect of a particular centre. There is a good deal of force in this contention. There cannot be any question of any inequality on the facts of this case before us.

13. The next case referred to is the case of Dr. Jagdish Saran and Ors. v. Union of India and Ors. . Reliance was

placed on paragraph 16 wherein it was stated that the primary imperative of Articles 14 and 16 is equal opportunity for all across the nation to attain excellence and this has burning relevance to our times. What is the fundamental as an enduring value of our polity is guaranteed to each of, equal opportunity to unfold the full potential of his personalities. The philosophy and pragmatism of universal excellence through universal equal opportunity is part of our culture and constitutional creed. In our opinion, there is nothing in this decision to support the case of the petitioner.

14. The next case placed before us is the case of the Principal King George's Medical College, Lucknow v. Dr. Vishan Kumar Agarwal and Anr. , wherein it was decided that the material

date for determination is date of application for admission to M. D. Course of studies and not date of examination. We are not concerned with the same in this case as it is connected with the question as to the relevant date for the purpose of qualification. It is not necessary to go into the details of the case for the purpose of the decision herein.

Reliance was placed to the case of Dr. Dinesh Kumar and Ors. v. Molilal Nehru Medical College , wherein it was

held that examination held by different universities/States is violative of Article 14. It was held, inter alia, as follows:

The admission must be based on evaluation of relative merits through an entrance examination, which would be open to all qualified candidates throughout the country. Such entrance examination should be held by the Government of India or the Indian Medical Council on an All-India basis and admission should be granted to the various medical colleges in the country on the basis of the marks obtained at such entrance examination.

It was further observed that

It would be wholly unjust to grant the admission to students by assessing their relative merits with reference to the marks obtained by them not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same.

It was further held that it was "violative of equality enshrined in Article 14 of the Constitution.

15. This principle is well established and the reason for the same is not far to seek. However, the same is not applicable in the facts of this case. No separate examination as contemplated therein was held in the present case. There was only one set of questions for all the centers and only because the examination of one centre had to be cancelled that a re-examination was held subsequently in respect of that centre and obviously a different set of examination papers had to set up for that purpose.

16. In our opinion there is no question of there being any disparity in the question of evolution in the present case. In this context, we may point out that even if the examination is held in all the different centers on the same date where about 15000 to 20000 examinees are involved, the answer papers have to be examined and evaluation to be made by more than one persons. Such evaluation cannot be mathematically the same. Law regarding evaluation does not require that evaluation is to be done by only one examiner.

17. Reference may be made to the case of A.P. Public Service Commission v. B Sarat Chandra and Ors. , which, in

our opinion, has no application at all in the facts and circumstances of this case. The question involved in that decision was what is the appropriate date under Rule 5 of the Police Service Rules regarding the question of eligibility.

18. These are the decisions placed before us. The decisions are of no help to the petitioners. The decisions do not support the case of the petitioners. It is no doubt true that there must be a "competitive test" and no other method can be followed. It is also clear that such competitive test cannot generally be held on the basis of different sets of papers at different centers in respect of different candidates because that will at amount to a true "competitive test." Normally there must be one set of question papers in respect of all the candidates in all the centers throughout the State of Bihar. This was so done in the present case. However, in respect of Dhanbad Centre, because of the circumstances beyond the control of the authorities concerned and for no fault on their part, that such examination had to be cancelled and a re-examination had to be directed. If we accept the contention of the petitioners in the facts and circumstances of this case, then it would amount to holding that not only in respect of the present case but whenever for reasons not under the control of the authorities concerned, the examination of any one of the centers has to be cancelled, in that case the examination of all the centers involving thousand of candidates have to be cancelled and fresh examination, is to be held not only in respect, of the particular centre, where there was some trouble, but in respect of all the centers even when there had been no trouble there. For improper act of one candidate in one centre the examination of the particular centre cannot be cancelled in toto. When there is cancellation of the examination of a particular centre as a whole that does not require any opportunity to show cause being given of hearing. If the examination of a particular centre has to be cancelled and such cancellation is not and cannot be challenged as invalid, then it cannot be held that even in that case not only 1,400 persons involved in that centre but all the 18,000 persons involved in all the centers throughout the State of Bihar have to appear again in a fresh examination. That would not only cause hardship to the innocents but that will be totally unreasonable and arbitrary action on the part of the Government because all the 18,000 candidates will suffer because of the fault of some in respect of one centre. Competitive test obviously contemplates one set of examination and one set of question papers but having regard to the number of persons involved obviously it has to be held at different centers for the convenience of all concerned including the candidates. In such a case, if there is disturbance in one centre but for that reason examinations of other centers have also to be cancelled, that would be highly illegal and improper. We are not willing to accept the interpretation that unless a fresh examination of all the centers takes places it will not be a competitive test.

19. We are of the opinion that in the facts and circumstances of the case, the re-examination of Dhanbad Centre alone, in respect of which the original examination had to be cancelled, does not amount to breach of any provision of the Prospectus or any law laid down in respect of such matters. It still satisfies the test of a "'competitive test". In that view of the matter," there is no merit in the contentions raised and we reject the same.

20. Accordingly, this application is dismissed. All interim orders are vacated. There will be no order as to costs.

21. Let it be recorded that we have heard the arguments in all such matters and we have delivered this common judgment in respect of all such matters.