Relief to FMGE December 2020 candidates: Delhi HC orders one extra mark on wrong answer key matter

The single-judge bench of the High Court thus clarified that "In the event, any candidate thus achieves the passing score of 150 marks, they would be treated as having passed the FMGE (December 2020)."

Further taking note of the extreme position taken by NBE of not being ready to accept any fault, the High Court bench observed, "It is indeed surprising that an academic body like the NBE should take such an extreme position. This attitude displays an unfortunate determination to persist in an error, rather than an open-minded approach, which should inform all academic enterprise."

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Justice Prateek Jalan was listening to the petition filed by the Association of MD Physicians, who sought grant of one additional mark to the candidates who took the FMGE (December 2020), contending that one of the questions in the examination had no correct answer and was therefore a patently erroneous question.

The association has also pleaded before the Court to issue directions under Article 226 of the Constitution directing NBE to make public its answer sheet for the Foreign Medical Graduate Examination conducted on 04.12.2020.

After perusing the affidavit filed by NBE, the HC bench found the disputed question challenged in the petition. The Question was:

"Sample Registration System gives information about all except:

a. Birth rate

b. Death rate

c. Maternal Mortality rate

d. Infant mortality rate"

NBE stated before the Court that the correct answer to the disputed question would be option (c), i.e. Maternal Mortality Rate (MMR). However, the association in its petition argued that the disputed question was technically incorrect, as the Sample Registration System (SRS) in fact, gives information about all the four parameters mentioned viz. Birth Rate (BR), Death Rate (DR), Maternal Mortality Rate (MMR), and Infant Mortality Rate (IMR).

When the petitioner association via a representation dated 12.01.2021 addressed its concern regarding the issue, NBE issued a notice dated 16.01.2021, clarifying that the result declared by it was final and that it had been declared after "necessary checks including post exam review of the question paper by subject matter experts".

After the issue was taken before the High Court, both the parties agreed that SRS refers to a system that has been established by the Registrar General and Census Commissioner of India (RGI) under the Ministry of Home Affairs, Government of India and is administered by the Vital Statistics (SRS) Division of the RGI.

The counsel for the petitioner association submitted before the Court that RGI while responding to an inquiry, addressed a communication dated 18.01.2021 stated that "Sample Registration System (SRS) is a large-scale demographic survey, which brings out estimates of various fertility and mortality indicators like Birth Rate, Death Rate, Infant Mortality Rate, Under-five mortality rate, Total Fertility Rate, Neonatal Mortality Rate, Age-Specific Death Rates, Age-Specific Fertility Rates, Maternal Mortality Rate, etc. for the country."

This was again reiterated by RGI through a communication dated 03.02.2021, in response to a query under Right to Information Act, 2005. RGI further stated that the data compiled under SRS is in public domain and may be accessed through the website www.censusindia.gov.in by clicking the link "SRS Publications".

On the behalf of the petitioner association, reliance was given upon a Press Release published by Union Government on 18.09.2020, and a Press Release by the Union Health Department on 12.02.2021, where SRS report was to referred to look at the statistics of MMR.

Further referring to the "Special Bulletin on Maternal Mortality in India 2010-12" dated December, 2013 published by the Sample Registration System, Office of RGI, the counsel for the petitioner submitted before the Court that the bulletin mentioned, "SRS is the largest demographic sample survey in the country that among other indicators provide direct estimates of maternal mortality through a nationally representative sample."

Referring to all these data, the counsel for the petitioner submitted that "it is clear that the disputed question is in itself erroneous, inasmuch as the SRS does give information about MMR, in addition to the other three mentioned parameters."

Mentioning a similar situation in FMGE 2019, where two questions were found to be technically incorrect, the Counsel for the petitioner submitted that in that case NBE had decided to award marks of all candidates for those questions, and contended that a similar course should be taken in the case of FMGE 2020 as well.

NBE, on the other hand, contended that the information bulletin of FMGE clarified that there would be re-evaluation re-checking or re-totalling of marks. Further submitting that the "Question Bank" maintained for FMGE includes questions only after inputs from senior faculty members in various medical disciplines, the counsel appearing on the behalf of NBE contended that after such pre-examination verification and post-examination validation, the Court should not interfere with the academic judgment of experts. She also referred to several relevant court judgments to make her case.

Referring to the Special Bulletin on Maternal Mortality by RGI in July 2020, the counsel for NBE further submitted that "the actual data collected by the field agents of the SRS is confined to the basic indicators of BR, DR, and IMR, which are then used to calculate other derived indicators, including MMR."

To understand the matter properly, the Court sought assistance from RGI to understand whether the Sample Registration System includes or does not include Maternal Mortality Ratio. RGI in its response submitted that Sample Registration System includes Maternal Mortality Ratio.

NBE, in response, contended that RGI is neither an expert in the subject of Community Medicine nor in conduct of specialized examination such as FMGE. "The information supplied by them is very generic with wide amplitude and cannot be taken into consideration over the views of experts in the subject matter as stated hereinabove," contended NBE.

After listening to the contentions, the Court referred to the Supreme Court judgment in the case of Kanpur University where it was held that if there was any doubt the reliance is usually placed upon the key answer. However, "if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong."

Further referring to several other court judgments, the HC bench opined

"The Court is not an expert in the universe of subjects examined at various levels, and must unhesitatingly defer to the view taken by expert examiners. However, none of the judgments cited prohibit judicial review altogether. They do leave open a window for challenge, albeit a very small one, in the event that the candidate discharges the onus of showing that a question is patently erroneous."

Referring to the details of this case, the Court noted,

"The NBE's position with respect to the disputed question would be accepted by the Court if it can possibly be argued that the SRS does not include information about the MMR. However, the materials placed by the parties, in my view, leave no room for doubt that this is a patently erroneous view."

In this context, the HC bench referred to the communication by RGI and the Press Releases of the Ministry of Women and Child Development, and of the Ministry of Health and Family Welfare. The bench observed,

"It is impossible to accept the NBE's contention that the SRS does not give information about MMR, when that very information has been used in the discharge of the Government's solemn responsibility to Parliament, which is central to the functioning of our democracy."

"The disputed question, on a plain reading, asks which of the four mentioned parameters is excluded from the information given by the SRS. It does not require any process of inferential reasoning or rationalisation to see that all the four parameters are included in the information supplied by the SRS. It is the justification asserted by the NBE which requires much to be read into the question and, even then, calls for a rather strained process of rationalization," the judgment further added.

Pointing out the extreme position by NBE the Court also mentioned,

"To say that the RGI is not an expert in Community Medicine is , therefore, neither here nor there. The RGI is certainly an expert on the question of what is and what is not part of the SRS. It is indeed surprising that an academic body like the NBE should take such an extreme position. This attitude displays an unfortunate determination to persist in an error, rather than an open-minded approach, which should inform all academic enterprise."

After finding the answer key provided by NBE to be incorrect in the respect of the disputed question, the Court also took note of the fact that giving relief to the candidates would not interfere with settled third party rights, but also would result in some additional candidates securing the passing mark of 150.

Thus, the Court directed NBE to treat the disputed question as deleted from the FMGE (December 2020), and to award one extra mark to those candidates who were assessed as having answered it incorrectly.

"In the event any candidate thus achieves the passing score of 150 marks, they would be treated as having passed the FMGE (December 2020). The aforesaid directions be complied with within four weeks from today," clarified the Court order.

To view the original judgment, click on the link below.