Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SARDAR KHAN and others VS Respondent: MUHAMMAD AFZAL and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Tariq Pervez Title: SARDAR KHAN and others vs MUHAMMAD AFZAL and others Case No.: Criminal Miscellaneous No,118-T of 2012 P.L.A. No,246 of 2012 Date of Judgment:2012-08-02 Reported As: 2012 SCMR 1838 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ANWAR ZAHEER JAMALI, J.---All the five petitioners herein are nominated accused in Crime No,1, dated 1-1-2012, Police Station Phalia, District Mandi Bahauddin, wherein they have been charged with the allegations of committing murder of two persons Parvez Iqbal, Advocate and Asadullah Khan. Petitioners Nos.1 and 3 have been attributed the role of instigation and connivance, while the remaining three have been attributed active role of firing at the two deceased. After investigation, petitioners have been sent up for trial before the Court of Additional Sessions Judge, Phalia, where, on 26-3-2012 they have been accordingly charged for commission of such heinous crime. On 19-4- 2012, petitioners had moved Criminal Miscellaneous No,118-T of 2012 before Lahore High Court; Lahore, seeking transfer of the Sessions Case from the Court of Additional Sessions Judge Phalia to any other District of Punjab, and for this purpose raised the plea that as one of the victims of the crime was senior member of the Bar, who had close contacts and relationship with other senior members of the Bar, therefore, they are,unable to avail the services of any senior lawyer from that District. 2. After calling for the comments from the trial Court, which were received on 7-5-2012, learned Single Judge in Chambers of the Lahore High Court, vide his order dated 27-6-2012 dismissed the said transfer application with the following observations:-- "5. The report and parawise comments were called for from the concerned Additional Sessions Judge, Phalia. The perusal whereof reveals that the P. Ws. Are attending the court since framing of charge but accused have failed to engage their counsel in spite of direction of learned trial Court. Admittedly the Pervaiz Iqbal deceased was one of the members of the local Bar and he had relations with other Advocates. But it cannot be said that the members of bar can cause any
---
## Page 2
influence upon the trial Court. Learned Presiding Officer has written in his report that he would decide the case on merits without any fear or favor to either of the parties." 3. We have heard Syed Zulfiqar Abbas Naqvi, learned Advocate Supreme Court for the petitioners and perused the material placed on record, which reveals that after framing of charge before the trial Court, prosecution witnesses have attended the Court but due to failure of the petitioners to engage their counsel, the case was adjourned by the trial Court with directions to the petitioners to engage their counselor in case of their failure, they would be provided counsel on State expense. Before the High Court, the petitioners have not disclosed the name of any senior counsel which they wanted to engage from District Mandi Bahauddin and who refused to accept their brief. In any case, mere apprehension of the petitioners that due to allegations of murder of senior member of the Bar at Mandi Bahauddin against them no counsel at that place shall accept their brief or that they will not be able to get fair trial within the jurisdiction of District Mandi Bahauddin are of no avail. The High Court has taken right view in dismissing the transfer application of the petitioners vide its impugned order, which is unexceptionable and calls. For no interference. 4. Accordingly, this criminal petition for leave to appeal is dismissed and leave is refused. ' Petition dismissed. 2012 SCMR.1841 [Supreme Court of India] Present: R.V. Raveendran and A.K. Patnaik, JJ SANCHIT BANSAL and another---Appellants versus JOINT ADMISSION BOARD (JAB) and others---Respondents Civil Appeal No,8520 of 2011 (arising out of S.L.P. (C) No,13495 of 2010), decided on 11th October, 2011. (a) Educational institution- -- Admission-- Entrance examination--- Admission Board---Complicated procedure adopted by the Board for evaluation, selection and ranking of candidates-Interference in such procedure by the courts---Scope---Cut-off marks fixed for the subject---Candidate (appellant) contended that Admission Board (respondent) fixed cut-off marks for the subject in question arbitrarily and in a mala fide manner, and that on account of personal enmity and rivalry with the candidate's father, the Board manipulated the ranking and selection process to deny admission to the candidate---Validity---Procedure adopted by the Board might have appeared to be highly cumbersome and complicated, but the object of said procedure for arriving at the cut-off marks was to select candidates well equipped in all the subjects, with reference to their merit, weighed against the average merit of all the candidates who appeared in the examination---Fact that the procedure was complicated would not make it arbitrary or unreasonable or discriminatory--- Contention of candidate to the effect that to deny admission to him from among more than 2,87,000 students, the Board manipulated the process of fixing cut-off marks, was too far-fetched and difficult to accept, apart from the fact that there was no iota of material to support 'such a contention---Similar procedure for the entrance examination had also been adopted in the year 2000 and 2001---Object of the entire exercise was to ensure a balanced selection among the candidates who participated in the examination---No grounds existed for the court to interfere with the procedure, even if it was not accurate or efficient, in the absence of mala fides or arbitrariness or violation of law---Appeal was dismissed accordingly. [pp. 1853, 1855, 1859] A, E, F & G (b) Educational institution--- ----Academic matters-Interference by court---Scope---Court should be extremely reluctant to substitute its own views as to what is wise,
---
## Page 3
prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. [p. 18541 Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth AIR 1984 SC 1543 rd. (c) Educational institution-- --Statutory professional bodies---Academic matters-Educational. Policies---Interference by courts--Scope---Courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education---If courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, that will lead to chaos in education and deterioration in standards of education---Role of statutory expert bodies on education and role of courts are well defined by a simple rule i,e, "if it is a question of educational policy or an issue involving academic matter, the courts keep their hands off but where any provision of law or principle of law has to be interpreted, applied or' enforced, with reference to or connected with education, the courts will step in." [p. 18541 C All India Council for Technical Education v. Surinder Kumar Dhawan AIR 2009 SC 2322 rel. (d) Educational institution--- ----Admission---Process of evaluation, ranking and selection 'of candidates---Interference by the courts---Scope---Process of evaluation, ranking and selection of candidates for admission with reference to their performance, and the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes---Courts will interfere only if they find violation of any enactment, statutory Rules and Regulations, or find mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone, or where the procedure adopted is arbitrary and capricious---Action would be arbitrary and capricious if it is illogical and whimsical and something without any reasonable explanation---When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide. [p. 1855] D Date of hearing: 11th October, 2011. JUDGMENT ' R. V. RAVEENDRAN, J.---Heard. Leave granted. 2. The first appellant is the son of second appellant who is a Professor in the Indian Institute of Technology (HT for short), Kharagpur. Admission to undergraduate courses in fifteen IITs as also IT- BHU and ISM, Dhanbad -is through the Common Entrance Examination known as the Joint Entrance Examination (for short IIT-JEE). The said examination is considered to be the toughest entrance examination in India, with more than 50 candidates vying for each seat in the said examination. IIT- JEE is conducted every year by a different IIT on a rotation basis and is supervised by the Joint Admission Board (JAB or the 'Board'), the first respondent herein. The first appellant appeared in the HT-JEE 2006, as a general category candidate. He secured 75 marks in Mathematics, 104 marks in Physics and 52 marks in Chemistry, aggregating to 231. The Board had fixed the cut off marks for admission as 37 for Maths, 48 for Physics and 55 for Chemistry and the aggregate cut off marks as 154. As first appellant did not secure the minimum of 55 marks in Chemistry he was not qualified, even though his aggregate in the three subjects was very high.
---
## Page 4
3. The second appellant wrote a letter dated 5-9-2006 to all the IIT Chairmen/Directors alleging anomalies and inherent contradictions in the selection process. He alleged that the cut off marks were fixed arbitrarily and with mala fides in a manner that a student such as the first appellant with 231 marks was found to be not qualified whereas a student who got aggregate marks of 154 was found to have qualified. The appellants also filed several applications under the Right to Information Act 2005 and collected considerable data. The appellants claim that when they sought information about the procedure for computation of cut off marks for JEE 2006 the organizing Chairman, JEE 2006 gave two different versions at different points of time. 4. The first response given by the Organizing Chairman, JEE 2006 on 14-5-2007 read as follows:-- "Procedure for computation of cut-off marks etc. For JEE 2006. (1) "Consistent with announced criteria of "Ranking" and "Tie-breaking" given in sections 11.1 and 11.2 of the Information Brochure of JEE 2006 the different cut-offs were decided. (2) On the basis of overall performance of candidates who appeared in all the three subjects (Mathematics, Physics and Chemistry), mean marks of each of the three subjects along with standard deviation was determined. The cut-off in each subject was decided as mean marks minus one standard deviation. Further depending on the number of candidates required to be qualified on All India basis, the aggregate marks cut-off was obtained. The cut-off marks of individual subject and aggregate are given below for GE category candidates: ' Mathematics 37 ' Physics 48 ' Chemistry 55 ' Aggregate 154" ' The second response given by the organizing Chairman, JEE 2006 on 12-7-2007 was as under: "Procedure for cut-off determination in JEE-2006: ' For each subject, mean and standard deviation of the marks obtained are computed. For this computation only scores of those candidates who have secured minimum 1 (one) mark in each of the three subjects have been considered. (ii) The cut-off marks of an individual subject is calculated as cutoff mark of a subject = Mean of the marks for the subject. - Standard deviation of the marks for the subject. The result has been rounded to the nearest integer. (iii) The mean and standard deviation of the aggregate marks are calculated for those candidates who score at least one mark in each subject. (iv) The aggregate cut-off mark is calculated as Aggregate cut-off = (Mean of aggregate marks Standard deviation of aggregate marks) rounded to nearest integer + a positive number ' The number selected for counseling (i,e, qualified in JEE-2006 for counseling) is 1.3 x the number of seats available in all participating Institutions. Each time 1(one) mark is added to the mean- standard deviation of the aggregate marks and the number obtained is compared with the desired number. This process is continued until one arrives at the desired number to be called for counseling." 5. Feeling aggrieved by his non-selection, which according to appellants was due to a defective, erroneous and mala fide process adopted for cut-off determination, the appellants filed a writ petition (WP 11434 (W) of 2007) claiming the following reliefs, apart from several consequential reliefs:-- (a) To quash the selection and merit list of admissions to IIT/ITBHU/ISM on the basis of JEE-2006 as it was prepared on the basis of imposition of illogical and cut off marks in three subjects without any rational basis;]
---
## Page 5
(b) to prepare and publish fresh Chemistry marks for admissions to IITs in regard to JEE 2006 after making appropriate corrections in evaluation by adjusting the wrong evaluation and on that basis prepare and publish fresh merit list for admission to IITs/ITBHU/ISM in regard to JEE 2006. 6. A learned single Judge dismissed the said writ petition holding as follows:-- (a) The appellants could not challenge the procedure for determination of cut off in JEE 2006 as they had given a signed declaration that the decision of JAB regarding the admission to be final and they would abide by the said decision. (b) The respondents had justified as to the manner of arriving at the cut off marks for Chemistry in JEE 2006 and it was within the domain of the Joint Admission Board to decide upon the procedure for determining such cut off and there was no material to show that the procedure adopted was flawed or arbitrary. 7. Feeling aggrieved, the appellants filed an appeal. A division bench by an interim order dated 7- 7-2009 directed the Chairman of the first respondent Board to cause any of the Directors of the IITs in India to prepare and submit a report regarding the working out of cut off marks of Chemistry based on formula and/or norms on the basis of information disclosed under the RTI Act and also disclosed in the affidavit in opposition. The division bench also permitted the appellants to procure any expert's report in regard to working out of cut off marks in regard to Chemistry by following the aforesaid two norms and submit the report. 8. In pursuance of it, the appellants secured the two reports both dated 17-7-2009 from T.A. Abinandanan, Professor, Department of Materials Engineering, Indian Institute of Science, Bangalore. The first report was on the calculation of the cut off marks in Chemistry. The concluding portion of the said opinion is extracted below:-- "Therefore, the cut-off marks of Chemistry as per the formula provided in the affidavit-in- opposition comes out to be six (6). This cannot be 55. ' Conclusions: Cut-off marks in Chemistry were calculated in two different methods; in both the methods, the formula is the same: "Mean minus Standard Deviation"; however, the methods differ in the candidate populations used for computing the Mean and Standard Deviation. The calculated value of the Mean and Standard Deviation will depend on the candidate population used in arriving at these two quantities. ' The cut-off marks in Chemistry, comes out, correctly and precisely, to be MINUS SIX and SIX, respectively, based on the formula and/or norms on the basis of information disclosed under the Right to Information Act, and disclosed in the affidavit in opposition. ' The Chemistry cut-off marks cannot be 55 by any of the disclosed formulas." ' The second report dated 17-7-2009 of Prof. T.A. Abinandanan was on the analysis of candidates' performance in JEE 2006. We extract below the conclusion in the said report:- '"A comparison between my findings and the data provided by IIT-Kharagpur reveals the following: (1) Number of candidates in the two categories: ' Category A: I found 145,439 candidates in this category, in perfect agreement with the data provided by IIT-Kharagpur. ' Category B: I found 287,564 candidates in this category, in perfect agreement with the data provided by IIT-Kharagpur. (2) Cut-off marks in Mathematics, Physics, and Chemistry: {{TABLE}} Mathematics Physics Chemistry HT-Kharagpur data 37 48 55 Category A of this study 7 4 6 Category B of this study, provided for the sake of completeness -3 8 -6 {{TABLE}}
---
## Page 6
' In terms of cut-off marks, my findings do not agree at all with the data provided by IIT-Kharagpur. Since the procedure used by IIT-Kharagpur for the determination of the cut-off is the same as the computation I performed for candidates in Category A, a direct comparison is valid. (3) For the subject of Chemistry, following the formula provided by IIT-Kharagpur, the cut-off marks determined by my analysis is only 6, whereas it is 55 in the data provided by IIT Kharagpur." 9. The JAB appointed a two member committee of IIT Directors (Mr. Gautam Barua, Director, HT, Guwahati and Mr. Dewang Khakhar, Director, HT, Bombay) to work out the cut-off marks for Chemistry. They gave the following report dated 19-7-2009: "The committee first of all noted that the issue of cut-off marks in each of the subjects of the examination, namely, Physics, Chemistry and Mathematics has been present in the JEE system for a number of years. The principle behind having cut-off marks is to ensure that a candidate qualifying the JEE examination satisfies a minimum proficiency level in each of the subjects. As the difficulty level of the question papers vary from year to year, no absolute pass mark can be set as is normally done in examinations. Thus the pass mark has to be relative to the performance of the candidates of that particular year. ' The committee examined the procedure for subject cut-off marks in JEE 2006 as submitted in an affidavit to the Calcutta High Court and the procedure given against an RTI application. The committee noted that the procedures given in these document did not contain sufficient details to calculate the cut offs. ' A presentation was made before the committee by officials of IIT Kharagpur, including the Chairman JEE 2006, to explain in detail the procedure used in determining the cut-off marks in JEE 2006. The procedure was also given in writing along with sample calculations based on the actual data of JEE 2006 (attached as Annexures B-G). A demonstration of the computer program implementing the above procedure and using the actual JEE 2006 data, was made before the committee. The results obtained from this demonstration were found to be the same as reported in the Annexures. The committee also examined the computer program used in the demonstration and found that it was as per the procedures reported in the Annexures. The committee was satisfied that the procedures outlined in the Annexures are systematic and complete. The committee also verified that these procedures give the actual cut offs in JEE 2006 for all the subjects, including Chemistry, and also the aggregate cut offs, as reported in the RTI disclosure." 10. The division bench considered the said reports and the contentions of the parties and by impugned order dated 6-1-2010 held that it was unable to grant any relief to the first appellant as it was not inclined to sit over the wisdom of the body of experts and the appellants had not made out any mala fides. It also noted that the procedure adopted in 2007 and 2008 was more transparent and simple than the selection process of 2006 and the JAB had made an effort after JEE 2006 to ensure that the candidates get a clearer picture, demonstrating that there were no possibilities of any unfair means in the process of selection. The said judgment is challenged in this appeal by special leave. 11. The question for consideration is whether the procedure adopted by the Board to arrive at the cut off marks for JEE 2006 is arbitrary and mala fide and whether the High Court ought to have interfered in the matter. 12. Learned counsel for the appellants submitted that the minutes of the meeting of JAB 2006 held on 17-9-2005 which laid down the procedure for holding the JEE 2006, furnished by the respondents, did not contain the cut off procedure for JEE 2006. It was submitted that the cut off procedure which was fixed before the examination was repeatedly changed after the examination and that the two different versions given by the Board at different points of time demonstrated that none of the procedures showed 55% as the Chemistry cut-off marks; that the procedure adopted was full of errors and defects; and that if the iterative procedure explained by the Board was
---
## Page 7
implemented correctly, the effect would be to increasing the Maths cut off marks from 37 to 42 and decreasing Physics cut off marks from 48 to 44 and Chemistry cut off marks from 55 to 51. It was also contended that the Chemistry cut off marks were probably manipulated to exclude appellant No,1 from the JEE merit list as Prof, S.K. Dube, Chairman, Joint Admission Board 2006 (then Director, IIT, Karagpur) and Prof. V.K.Tiwari, organizing Chairman, JEE 2006 had a personal grudge against the second appellant who was a Professor of Computer Science and Engineering at IIT, Kharagpur. 13. On the other hand the. Respondents submitted that the IIT-JEE examination is time tested and world renowned and has produced some of the brightest brains of India who have excelled in fields even apart from engineering and technology such as civil services, management etc; and entrance examination is held in high regard for its transparency and objectivity. It was submitted that the JAB and the organizing Institute had ensured that all steps were taken to maintain the confidentiality of the process as well as the identity of the candidates and for that purpose used a bar code on the left and right hand side of each OMR sheet and it was not possible to prejudice a particular candidate by any manual process. It was further submitted that the calculation of the cut off marks had been done on the basis of the procedure adopted by the Board in a completely transparent and objective manner; and there was no possibility of any manual intervention in either the calculation of cut off marks or in calculation of marks of any individual student. 14. It is no doubt true that the simplest and most straight forward method of selecting the candidates to be called for counseling would be to take the candidates in the order of merit (with reference to actual marks) subject to their possessing a pre- declared minimum marks in each subject. For example the Board can decide before hand that the aggregate cut-off marks for eligibility would be 150, that is 50 in each of the three subjects and prepare a merit list of the candidates who fulfill the said criteria and then call the first 5500 students in the merit list, in the order of merit for counselling. This would be the traditional method: 15. But the Board wants to select candidates with consistent performance in all three subjects. To achieve this result and shortlist about 5500 candidates from out of 287564 candidates, the above mentioned traditional procedures will not be of assistance. Therefore, a rather complicated but scientific procedure has been followed. We may at this juncture set out the Evaluation procedure for JEE 2006 and the Procedure for cut-off determination in JEE 2006 done by iterative process, followed by the Board. "Evaluation Procedure for JEE 2006 ' Joint Entrance Examination (JEE) conducted by the IITs for admission to the Under-graduate course in all the seven IITs, IT-BHU and ISM Dhanbad is considered to be the best and the toughest admission test in the world. This is primarily intended to attract the brightest of the young minds for education and research in engineering and technology in India. . ' Joint Entrance Examination (JEE)-2006 was conducted on 9th April, 2006 was one stage of examination as approved by the Joint Admission Board (JAB). In this examination, there were three question papers namely Mathematics, Physics and Chemistry. Each question paper was objective type in nature to test the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.