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NEET- UG | 'We Sympathize With Students, But Re-Test For Mix Up By Invigilator Is Difficult': Supreme Court Sets Aside HC Direction

LIVELAW NEWS NETWORK
12 Nov 2021 7:54 AM GMT
NEET- UG | We Sympathize With Students, But Re-Test For Mix Up By Invigilator Is Difficult: Supreme Court Sets Aside HC Direction
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The Supreme Court on Friday set aside the recent Bombay High Court order which had directed the National Testing Agency to hold fresh exam for two NEET UG aspirants over a mistake committed by the invigilator which resulted in the mix-up of the test booklets and the OMR sheets.A bench comprising Justices L Nageswara Rao and BR Gavai observed that while the Court sympathized with the plight...

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The Supreme Court on Friday set aside the recent Bombay High Court order which had directed the National Testing Agency to hold fresh exam for two NEET UG aspirants over a mistake committed by the invigilator which resulted in the mix-up of the test booklets and the OMR sheets.

A bench comprising Justices L Nageswara Rao and BR Gavai observed that while the Court sympathized with the plight of the two students, it was difficult to order a re-test for the two students.

Accordingly, the bench allowed the appeal filed by the National Testing Agency against the High Court direction. Earlier, the bench had stayed the High Court direction and allowed the NTA to declare the NEET-UG results, which were withheld in view of the High Court's order.

The bench noted in its order that the invigilator had admitted the mistake. The bench also found force in the submission of the counsel of the students that they lost precious time due to the mix-up. Further, the bench added that it could understand the mental stress of the young students while taking exam in such a situation.

"...though we sympathise with their cause, we find it difficult to direct re-xam for them alone. Therefore, we set aside the direction given by the High Court", the bench noted in the order.

Court room exchange today

Solicitor General Tushar Mehta, who appeared for the NTA, submitted that the mix up happened in the case of 6 students. However, only two students have raised the issue before the court.

"Without consulting my client, I am submitting, principally we can have no objection in taking the re-exam, but the difficulty we see is that there is another petition before High Court after this order...for some reason, some mistake...there are 16 lakh candidates taking the exam every year ,and we are working through invigilators across the country, and there could be some mistakes somewhere, but if that becomes a cause for re-examination, it will be never ending", the SG submitted at the outset.

Advocate Sudhanshu Choudhuri appearing for the two students submitted that they are repeaters and came from humble background. He read out to the court the apology tendered by the invigilator, admitting the mix up.

"..the invigilators tender apology for mistake in distributing booklets to 6 students, test booklets fell down and got mixed with wrong OMR sheets, "we were doing duty for the first time, we assure this happened in hurry and not a deliberate mistake"-they said", the counsel submitted.

He submitted that the 2 students have excellent academic record and they cannot be made to suffer and that thy answered the remaining questions under stress.

The bench noted that the marks of the two students were computed as per the suggestion given by the NTA to the High Court that the scores will be calculated without insisting on the test booklet code and OMR sheet being different.

"There is no dispute that, there was a mix-up in the distribution of the answer sheets and the text booklets where the code is different. Realizing that wrong answer given to a question would attract negative marks and relying up on the instruction given to candidates, respondents 1 and 2 pointed out to the invigilator that the correct answer sheet with the proper code has to be given to them.

We have perused the marks given to respondents 1 and 2 from the material furnished by the SG. They have attempted most of the questions, no negative marks have been given to them. However we find substance in submission of Mr Choudhari that with loss of precious time the two students could not answer all the questions and we also appreciate the state of mind of the 2 students while taking the exam", the bench noted in the order.

However, it said it cannot allow re-test, though it has sympathies with the students.

"Though we sympathize with the cause of the two students. we find it difficult to order the reexamination of the two students. Thus we set aside the direction of the HC to conduct fresh exam for the two students"

Though the counsel for the students prayed for an alternative relief to compute their score taking the average of their attempted questions so that they can get admission in some college this year, the bench turned it down. "We are sorry but we cannot do anything", the bench told the counsel.


Background

The Bombay High Court through its impugned order directed the NTA to hold a fresh examination of the two petitioners for the Academic Year 2021-2022 and declare the result within a period of two weeks.

48 hours clear notice was directed to be given to the Petitioners about the date of examination and the center allotted to them.

The High Court also advised the NTA to frame appropriate Rules / guidelines for providing remedial measures in case of such difficulties that may arise in similar situations, in future, keeping in mind the interest and future of such students.

The two Petitioners before the Bombay High Court sought an order and direction against National Testing Agency to re-examine them by conducting a separate NEET UG examination before declaration of result on grounds of a mix up / mismatch with respect to the Test Booklet and the OMR Sheets during their exams

The petitioners further sought direction to declare the result of their re-examination of along with the result of NEET examination held on 12th September 2021.

According to the Petitioners, the Examiner started distributing the question paper and answer booklet only at 2.05 pm. i.e. 5 minutes later than the timing of the examination.

The petitioners argued that during the exam, one examiner started distributing question paper booklets separately to all the students and other examiner started distributing answer sheet booklets. As a result, six candidates in one row got the question paper booklet and the answer sheet booklet with the same CODE and specific 7 digit serial number. However, for the 6 students in the other row, due to the error committed by the Invigilator, both Petitioners got incorrect question paper booklet and answer paper booklets.

According to the petitioners, when they realized this mistake on the part of the Invigilator, they pointed out this mistake to the Invigilator who threatened them with dire consequences of reporting them for causing nuisance and disturbance in the examination hall and thereby committing unfair practice if they further protested.

According to the petitioners, they started answering the questions at 4.15 – 4.30 pm. when time to complete the paper was expiring at 5.00 pm, and being in confusion and anxiety caused due to the blunder caused by the Invigilator, they could not complete the paper.

(Case : National Testing Agency versus Vaishnavi Vijay Bopael and others, SLP(c) No.17027/2021)


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