Government of Bangladesh and others Vs. Md. Ghulam Mustafa and others, 2 LNJ (AD) (2013) 1

Case No: Civil Petition For Leave To Appeal No. 1953 of 2012

Judge: Md. Abdul Wahhab Miah,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mr. Muzammel Haq,,

Citation: 2 LNJ (AD) (2013) 1

Case Year: 2013

Appellant: Government of Bangladesh and others

Respondent: Md. Ghulam Mustafa and others

Subject: Expert Opinion, Locus Standi, MBBS/BDS Admission,

Delivery Date: 2012-11-22

APPELLATE DIVISION
(CIVIL)
 
Mr. Md. Muzammel Hossain, CJ.
Mr. Surendra Kumar Sinha, J.
Mr. Md. Abdul Wahhab Miah, J.
Mrs. Nazmun Ara Sultana, J.
Mr. Syed Mahmud Hossain, J.
Mr. Muhammad Imman Ali, J.


Judgment
22th November, 2012.
  Government  of Bangladesh  and others
…Appellants
Vs.
Md. Ghulam Mustafa and others
....Respondents
 
 
Constitution of Bangladesh, 1972
Article 102
The High Court Division has found that the petitioners have sufficient interest and  are aggrieved by the actions of the respondents when the Appellate Division has further added that the writ petitioners are none else but the father of 10 (ten) students who appeared in the admission test and due to the errors in the question papers and the answer key their hopes were going to be shattered and thus their future was going to be ruined, they were the most concerned persons about the future of their children. Therefore, the writ-petitioners were definitely the persons aggrieved within the meaning of article 102 of the Constitution.…(18)
 
Constitution of Bangladesh, 1972
Article 102
The dual and contradictory stand of the respondents do not appear to us bonafide. When the respondents themselves admitted that there were errors/mistakes/ discrepancies in the Bangla and the English versions of the question papers which was also the claim of the writ-petitioners how they could claim that the questions involved in the writ petition were disputed questions of fact.…(22).
 
Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Section 151
In a proceeding under article 102 of the Constitution, the provisions of the Code of Civil Procedure as such are not applicable, but to decide the questions involved in the petition, the principles of the relevant provisions of the Code of Civil Procedure may be applied. So, in the instant case, the High Court Division had the option to invoke the principles of the provisions of section 151 of the Code of Civil Procedure to request the two experts of Dhaka University to give their opinion on the subject to secure the ends of justice and thus to decide the issues involved in the writ petitions. In the facts and circumstances of the case, the High Court Division followed the right procedure in seeking opinion of the two professors of Dhaka University.… (23)
 
Constitution of Bangladesh, 1972
Article 102
Evidence Act (I of 1872)
Section 45
In the instant case, the High Court Division did not decide the matter solely on the report of the two experts, the learned Judges themselves took the trouble to examine the papers, namely: the question papers, the answer key and the answer scripts of 11 (eleven) affected students and found apparent material errors and inconsistencies between the two bilingual sets of question papers and also mistakes in both the question papers as well as in the answer key to the English version which were so apparent that the same was detectable by the Court or by any educationist and then took into consideration of the report of two educationist of Dhaka University with the observation that "our findings tally with those of the aforesaid report. " In doing so the learned Judges did not commit any procedural error or mistake and the procedure, so adopted, did not at all prejudice the respondents. The High Court Division rightly observed that the concerned authority was negligent and callous in performing the duties as to setting question papers as well as in setting the answer key.… (24)
 
Constitution of Bangladesh, 1972
Article 102
There was no dispute as to the question of fact, so we find no substance in the submission of the learned Attorney General that there being disputed question of fact, the High Court Division was not justified in entertaining the writ petition.
In the instant case, the High Court Division entertained the writ petition and interfered in the matter as there were apparent errors and inconsistencies between two bilingual sets of question papers as well as in the answer key to the English version affecting the fate of the children of the petitioners as to their admission in the MBBS/BDS course in the Government and Medical/Dental Colleges and in fact, those who were genuinely affected because of the apparent errors/anomalies/inconsistencies in the question papers of the two versions, the Bangla and the English came before the Court and not the hundreds. In the context, the High Court Division rightly entertained the writ petition.
The five students who are the children of writ-petitioner Nos.3, 4, 5, 6 and  10, who were found eligible for admission in the MBBS/BDS course in the Government Medical/Dental Colleges could not get themselves admitted because of the order of stay of operation of the impugned judgment and order obtained by the writ-respondent-petitioners from this Division for no fault of their own.
The writ-respondent-petitioners are directed to take immediate arrangements for admission of 5(five) children of the petitioners in the Government Medical/ Dental Colleges for the session 2012-2013. The 5(five) students shall not have any claim for admission in any particular Government Medical/Dental College, but the writ-respondents shall keep in mind the Government Medical/Dental College where they could get admission in the session 2011-2012 as per the marks secured by them as calculated by the High Court Division.….(26, 29 and 31)
 
Kazi Mokhlesur Rahman -vs- Bangladesh and others, 26 DLR (AD) 44, Dr. Mohiuddin Farque -vs- Bangladesh, 49 DLR (AD) 1, Ekushe Televison –vs- Bangladesh, 54 DLR (AD)130, Brac Bank -vs- Bangladesh, 54 DLR (AD)34, ref.
 
For the Petitioner: Mr. Mahbubey Alam, Attorney General, instructed by  Mr. B.  Hossain, Advocate-on-Record.
 
For the Respondents: Mr. Muzammel Haq, Senior Advocate; instructed by Mr. Md. Habibur Rahman Miah, Advocate-on-Record.
 
Civil Petition For Leave To Appeal No. 1953 of 2012 (Arising out of Writ Petition Nos. 8556 with 8924 of 2011)
 
JUDGMENT
Md. Abdul Wahhab Miah, J:
 
The writ-respondents are seeking leave to appeal against the judgment and order dated the 5th day of June, 2012 passed by the High Court Division in Writ Petition No.8556 of 2011 disposing the same.
 
The above mentioned writ petition was filed by the writ-petitioner-respondents (hereinafter referred to as the petitioners) before the High Court Division with the prayer for issuing a Rule calling upon the writ-respondent-petitioners herein to show cause as to why the admission test for MBBS and BDS for the session 2011-2012 held on 30.09.2011 shall not be declared to have been taken without lawful authority and is of no legal effect. In the writ petition, a direction was also sought for upon the writ-respondents to produce both the Bangla and the English version of the question papers for the admission test of MBBS and BDS (Government and Non-Government) held on 30.09.2011 for the session 2011-2012 and the assessment method and criteria thereof for the satisfaction of the Court.
 
In the writ petition, it was stated, inter alia, that the petitioners are the parents and guardians of the students who appeared for the admission test of MBBS and BDS (Government and Non-Government) held on 30.09.2011 for the session 2011-2012. Soon after the test, the candidates, while discussing among themselves, revealed that there were serious errors and anomalies between the Bangla and the English version of the question papers of the test which may severely affect the merit lists for the English medium/version students. Some of the examples of the errors and the anomalies between the Bangla and the English version of the said test papers, found by the students, were as follows;
 
(a) Bangla: কোন অঙ্গ শরীরের ভারসাম্য রক্ষা করে না?
English: Which organ maintains the balance of the body?
(b) Bangla: কোনটি ফল মিষ্টি করতে সাহায্য করে?
English: Which does not help in sweetening the fruits?
(c) Bangla: নিচের কোনটি ফল পাকাতে সাহায্য করে?
English: Which of the following does not help in ripening the fruits?
(d) Bangla:  DËj (convexs) দর্পনের বক্রতার কেন্দ্রে স্থাপিত বস্ত্তর প্রতিবিম্বের অবস্থানের জন্য নিচের কোনটি সঠিক নয়?
English: An object is placed at the centre of curvature of a concave mirror. Which one of the following is true regarding the image of the object?
(e) Further, it has been revealed by the students that, for a question, in a Bangla answer sheet there were 4 options while in English answer sheet there were 3 options to select from.
 
The students identified and suspected that around another 20-25 questions had such anomalies which were capable of substantially affecting their merit list; since the question papers had not been provided to the students, they could not but wait for the publications of the results. The results were published on 02.10.2011. After publication of the results, the concerns of the English medium/version students turned into reality and it was found that most of the English medium/version students from the most reputed institution of the country, such as: Vikharunnesa Noon School & College, Rajuk School and College of Uttara, Shahid Anwar Girls' College of Cantonment, Notre Dame College, 12 Cadet Colleges of Bangladesh, etc failed to obtain a place in the merit list of the successful students. Being seriously concerned and doubtful about the legitimacy of the published results and the merit list, the parents and the guardians of the English medium/version students made an application to the Director General of Health Services, writ-respondent No. 3 on 04.10.2011 requesting him to address the alleged errors and anomalies outlined by them in the application to which he made no reply. Another application with the same request was made by the parents and guardians of the English medium/version students on 08.10.2011 to the same authority to which no reply was also made. The matter came up in the daily newspaper "The Daily Jugantar" on 09.10.2011 outlining the issues of said errors and anomalies in the MBBS and BDS admission test held on 30.09.2011. On 1 1.10.2011, a demand justice notice was served upon writ-respondent No. 3 outlining the errors and anomalies to which he did not make any reply; hence the writ petition was filed.
 
In the writ petition, contentions were raised by way of submission that it appeared from the examples of errors and anomalies, as set out in paragraph 5 of the writ petition that the correct answers for both the Bangla and the English test papers were not the same, hence in the event that a single marking method of group of students either the Bangla or the English had certainly been subjected to serious injustice violating their rights to have equality before law and equal protection of law as contained in article 27 of the Constitution of the People's Republic of Bangladesh (the Constitution), and hence the respondents were to be directed to produce the admission test papers both the Bangla and the English version and the method of markings before the Court for its satisfaction. The petitioners were entitled to be treated in accordance with law as contained in article 31 of the Constitution and any attempt to impede the same by the Government authority would be illegal and was of no legal effect. Unless the respondents were directed to produce the admission test papers both the Bangla and the English version and the method of markings thereof before the Court, the petitioners will suffer irreparable loss and injury.
Rule was issued in the terms of the prayer.
 
Writ-respondent Nos.3 and 4 appeared in the writ petition and filed an affidavit-in-opposition in order to contest the Rule contending, inter alia, that the statements made by the petitioners about the English version of question No.34 was partly true and, regarding question No. 15, it was stated that the omission of the words "sun light and water" in the main stem of the English version were true. Regarding question No.54, it was stated that the claim of the petitioners was partly correct as in the Bangla version of the question paper, the word "সর্বনিম্ন"  had not been given. However, the respondents tried to justify by an explanation that since the temperature range was shown as (-oc) scale, it indicated the lower to the lowest situation sequentially. With regard to question No.73 of the English version, it was stated that though the word (শ্বাসতন্ত্র) was omitted from the English version, this omission did not have any bearing on the given alternatives. With regard to question No.77 of the English version, it was stated that the allegation of the petitioners was not entirely correct as one alternative was chosen to be the correct answer and the same was not absolutely necessary to form the organic compound. The anomalies in the answers to both the Bangla and the English versions in respect of question No.28 were admitted. With regard to question No.24 of the English version, it was stated that the omission of "nm" did not prevent one from choosing the correct alternative since the only representative abbreviation for radius is “nm". The spelling mistake in question No.8 was admitted. It was further stated that question Nos.2, 21, 25, 38, 40, 44, 55, 76 and 87 contained only one corresponding correct answer though some of the alternative seemed to be correct also. There was no anomaly between the two versions of the question papers which could seriously or adversely affect the merit list of the students giving the relevant test in English. Apparently, from 100 questions only question No.93 was slightly different and the said difference was resolved by the examiners when they marked the answer scripts and as such, there were no questions which might have prejudiced the English version students. The allegation regarding the students giving the relevant tests in English being unable to obtain the requisite marks was not correct at all and, in fact, 13 students of the English version were placed in the merit list. There was no irregularity in making assessment of the answer scripts as well as in publishing the results. In fact, there was no scope or opportunity to create any anomaly as there were two alternative methods. Pursuant to an application filed by the parents and guardians of the English medium students, the Director General of Health Services, the concerned authority, upon proper scrutiny of the same, responded with due alacrity. After receiving the legal notice, the respondent could not reply to the same due to pendency of the writ petition. The question papers set in the Bangla and the English were the same and the process of cross reference or cross-checking was the same with regard to both the answer sheets. The petitioners had failed to comprehend the question.
 
The writ-respondents filed another affidavit-in-opposition on 07.03.2012 contending, inter alia, that the allegations as to 19 errors /anomalies, both in the Bangla and the English versions of the MBBS/BDS admission test were not correct and they replied as to the said allegations as under:
 
Serial. Q. No. Raised Errors & observations  
1. 34.
 
 
 
 
 
i. It is not self explanatory error  
ii. It is not opposite for English and Bangla  
iii. That the statement made about correctness of answer in Bangla options C is correct. No. A, B & D  
iv. In English it is same i.e., C is correct  
V. In answer key sheet option was C as correct.  
2. 93.
 
 
 
i. Admitted & mark(s) were given accordingly  
ii. This is not true  
iii. Date of admission was prefixed by the admission committee.  
3. 15.
 
 
i. It does not affect candidates understanding to choose the correct option. Only glass fulfills the criteria stated in the stem of question.  
ii. Article 27 is not affect.  
4. 54.
 
 
 
 
i. Word  "lowest"   does  not  affect  the  candidates' understanding.  
ii. None of the options are correct is an imaginary matter.  
iii. This is not correct. This is not true.  
iv. From the available A, B, C & D; "B" was choice.  
5. 73.
 
 
i. It is not vague  
ii. Article 27 is not affected.  
6. 77.
 
 
 
 
i. In both versions it was not blank, rather "D" was choice.  
ii. This is not true  
iii. This is not true  
iv. This is not true  
7. 81.
 
 
i. It does not affect the understanding of a candidate.  
ii. This is not true. Correct choice was "D"  
8. 28.
 
 
 
 
i. Allegation is not true.  
ii. Is seems to be negative manner but it was not negative manner.  
iii. There was a correct choice, which was "C".  
iv. It was not blank.  
9. 24.
 
 
i. It does not affect the understanding of a candidate.  
ii It was not blank  
10. 8.
 
 

i.
It does not affect the understanding, of a candidate
ii. It does not affect candidates understanding in relation to the "stem" of the question.
11. 2. i. Not that more than one correct choice was in the question & answer. Option "B" was in answer key sheet.
12. 21. i. Not that more than one correct choice was in the question & answer. Option "C" was in answer key sheet.
13. 25. i. Not that more than one correct choice was in the question & answer. Option "C" was in answer key sheet.
14. 38. i. Not that more than one correct choice was in the question & answer. Option "A" was in answer key sheet.
15. 40. i. Not that more than one correct choice was in the question & answer. Option "D" was in answer key sheet.
16. 44. i. Not that more than one correct choice was in the question & answer. Option "B" was in answer key sheet.
17. 55. i. Not that more than one correct choice was in the question & answer. Option "D" was in answer key sheet.
18. 76. i. Not that more than one correct choice was in the question & answer. Option "A" was in answer key sheet.
19. 87. i. Not that more than one correct choice was in the question & answer. Option "C" was in answer key sheet.
 
 
The allegation of wrong answer key in respect of 11 questions as made by the writ-petitioners was denied by the writ-respondents by stating as under:
 
20. 22. Answer key "C" claimed wrong is not correct.
21. 96. Answer key "B" claimed wrong is not correct.
22. 49. Answer key "B" claimed wrong is not correct.
23. 3. Answer key "D" claimed wrong is not correct.
24. 16. Answer key "D" claimed wrong is not correct.
25. 46. Answer key "D" claimed wrong is not correct.
26. 50. Answer key "A" claimed wrong is not correct.
27. 62. Answer key "D" claimed wrong is not correct.
28. 65. Answer key "C" claimed wrong is not correct.
29. 69. Answer key "D" claimed wrong is not correct.
30. 30. Answer key "A" claimed wrong is not correct.
 

The new merit position of the students bearing Roll Nos.133202, 131280, 131253, 324146, 321468, 152113, 131465, 131094, 322893 and 132523 were imaginary. The same answer keys, processes and procedure were applicable to all examinees. In total, 50027 candidates appeared in the MBBS/BDS admission test for the year 2011 out of which, only 3040 student qualified admission to the 2011-2012 sessions on the basis of choice and merit. Out of the total number of the examinees, to j were registered for English version wherefrom 423 students appeared in the admission test and from them, 18 students were successful,
 
During the pendency of the Rule, on the prayer of the writ-petitioners, the writ-respondents were restrained by the High Court Division by an order dated 08.02.2012 from filling up 153 seats which fell vacant due to transfer or non admission of some students till disposal of the Rule. It further appears that the High Court Division by order dated 15.03.2012 requested the eminent educationists, the Dean of the faculty of science and the Chairman of the Department of English of Dhaka University to justify as to whether the two versions of question papers complained of were different, side by side to see whether the allegations as to the in-correctness of the question papers and the answer key were justified. The said educationists were also requested to re-check and reassess the answer scripts of the children of the writ-petitioners on the basis of the correct questions and the answer key and report accordingly. The said experts submitted their detailed report before the High Court Division with their comments. It also appears that copies of the aforesaid assessment papers by the aforesaid prominent experts together with other documents, were handed over to both parties, i.e. the learned Advocates for the petitioners and the learned Attorney General for their perusal and thereafter, to make reply thereto, if any, by filing affidavit, but no reply on the same was given from the side of the writ-respondents.
 
The writ-petitioners filed a supplementary affidavit on 21.05.2012 stating that after obtaining the copies of the answer key and the answer scripts from the writ-respondents on 14.02.2012, pursuant to an order of the Court dated 08.02.2012, it was revealed that apart from the 19 anomalies stated in the writ petition, 11 (eleven) other questions possessed wrong answer key (the questions which possessed wrong answer key are not quoted here but those have been quoted in the judgment of the High Court Division). For the errors in the questions outlined in the writ petition being 19 in number and 11 errors in the answer key, the new test score of the students involved in the writ petition would be as follows:
Zumana Mustafa, Roll: 133202, (2) Samia Afroz, Roll:131280, (3) Marzuka Ahmed Zakia, Roll:131253, (4) Zerin Tasnim Sara, Roll:324146, (5) Zishan Sarwardi, Roll:321468, (6) Ishrat Akhter Emran, Roll: 152113, (7) Noor-e-Jannat Meem, Roll: 131465, (8) Sayma Sultana Mou, Roll:131094, (9) Ahad Nazmul Ahsan, Roll:322893 and (10) Sayma Islam, Roll:32523 who are the daughters, son and daughter respectively of the writ-petitioners 63.00 (out of 100 marks), 52.00(out of 100 marks), 68.25(out of 100 marks), 67.00(out of 100 marks), 69.75(out of 100 marks), 73.25(out of 100 marks), 67.50(out of 100 marks), 44.25 (out of 100 marks), 64.00(out of 100 marks) and 65.25(out of 100 marks) and they prayed that since the aforesaid candidates became eligible for admission in the MBBS/BDS course, they be allowed to be admitted in the Government Medical and Dental Colleges as per their eligibility.
 
Another writ petition being No.8924 of 2011 was filed by the father of another student who also sat for the admission test of the MBBS/BDS course for the session 9011-2012 making similar allegations as made in Writ Petition No.8556 of 2011. A Division Bench of the High Court Division which heard both writ petitions together considering the question papers, the answer key and the answer scripts of the 11 (eleven) students involved in the two writ petitions and the experts' opinion found that five students of Writ Petition No.8556 of 2011 who are the children of writ-petitioner Nos.3, 4, 5, 6 and 10, namely: Marzuka Ahmed Zakia, Roll: 131253, Zerin Tasnim Sara, Roll: 324146, Zishan Sarwardi, Roll: 321468, Israt Akhter Emran, Roll: 152113 and Sayma Islam, Roll: 132523 secured marks in excess of the qualifying minimum score 152.25 for admission into the MBBS/BDS courses under the Government Medical/Dental Colleges as specified by the writ-respondents in their affidavits and accordingly, by the impugned judgment and order, disposed of the Rules directing the writ-respondents to make necessary arrangements immediately for their admission. The High Court Division came to the further finding that the daughter of Writ Petition No. 8924 of 2011 and the children of 5 other writ-petitioners of Writ Petition No. 8556 of 2011 could not secure the minimum score of 152.25, so they failed to take advantage of being eligible to get admitted in the Government Medical /Dental Colleges.

The High Court Division further observed that: "Although under the terms of these two Rules, the admission process of Medical students for the session 2011-2012 was to be declared as being without lawful authority, we are not inclined to confine ourselves to within the four corners of the same in view of the fact that this Court, in the midst of the Rule hearing passed an order of stay regarding the admission to 153 vacant seats and, accordingly, those seats have been kept vacant, we find that the purpose of issuance of the Rule has not been lost as these petitioners can be accommodated in those vacant seats by the order of this Court and therefore, we are disposing of these Rules granting the relief to the children of petitioner Nos.3, 4, 5, 6 and 10 of Writ Petition No.8556 of 2011 only, keeping in view the exigencies of consequential relief
 
The High Court Division also directed the Secretary, Ministry of Cabinet Division to investigate into the matter by at least a 3 Member Committee, headed by an eminent educationist, appointing the Secretary, Ministry of Education as the Member Secretary and the Secretary, Ministry of Information Technology Communication (ITC) as its Member within one month from the date of receipt of the judgment and order and take disciplinary action against the responsible persons according to law without fail to prevent recurrence of similar incidents affecting the future lives of millions of students which will ultimately affect the nation as a whole on the observations that the conduct of respondent Nos.3 and 4 (the Director General of Health Services, Directorate of Health and the Director, Medical Education and Health Manpower Development, Directorate General of Health Services) who were entrusted with the sacred responsibility of conducting the examination and make arrangements for the admission test of the medical students of the session 2011-2012 failed to perform their duties putting at stake the fate of millions of students. The High Court Division further observed that the said respondents have dealt with the matter in a very cavalier fashion, so they must be brought to task.
 
Being aggrieved by and dissatisfied with the disposal of the Rule issued in Writ Petition No.8556 of 2011 in the above manner the writ-respondents have filed this petition for leave to appeal.
 
Mr. Mahbubey Alam, learned Attorney General, who also appeared before the High Court Division at the time of hearing of the Rules, has made similar submissions as were made before the High Court Division which were not accepted by the learned Judges of the High Court Division. His submissions are that the admission of the students with a score of above 152.25 having been already completed on 31.10.2011 and the remaining 153 vacant seats have been allocated to the said students and the sons and daughters of the writ-petitioners being below the merit score of 150, they were not eligible for admission in the MBBS/BDS courses (Government and Non-government), the High Court Division erred in law in giving the directions to make arrangements for the admission of the 5(five) children of petitioners into the MBBS/BDS courses in the Government Medical/Dental Colleges; the advertisement dated 09.02.2012 (annexure-I to the writ petition) having no impact on the position of the sons and daughters of the writ-petitioners and there being no reason to stay the advertisement but due to the issuance of the order of stay the students who had been allocated the remaining 153 seats have seriously been affected and thus, the system of admission has been disrupted, the High Court Division erred in law in giving the above direction inasmuch as in case the children of the writ-petitioners are allowed to be admitted in the Government Medical/Dental Colleges, the other unsuccessful candidates may follow them and come to the Court which will have far reaching consequences; the High Court Division erred in law in entertaining the writ petition inasmuch as the writ petition was not maintainable as the writ-petitioners were not personally aggrieved persons and the issues involved in the writ petitions also involved disputed question of facts adjudication of which could not be embarked upon in a summary proceeding under article 102 of the Constitution; the High Court Division erred in law in making the observations and giving directions in the impugned judgment and order relying on the opinion of the two professors of Dhaka University accepting as experts on the subject inasmuch as the experts appointed by it might have been inclined towards the writ-petitioners and consequently might have been persuaded to give favourable marks as well as to submit a favourable report to the Court and in the absence of any opportunity to cross examine the experts on their assessment of the relevant answer scripts as well as the report regarding the comparative precision and exactitude of the bilingual question papers and answer key could not be accepted legally as the Evidence Act, 1872 has neither prescribed nor has made any provision in relation to the admissibility of such a report; the question papers having been brought before the Court and on perusal of the same, it having appeared that except one question, there was no error or mistake in other questions, the High Court Division erred in law in sending the questions to two teachers of Dhaka University and wrongly relied upon their observations without considering that their observations were wrong on the face of the record.
 
Mr. Muzammel Haq, learned Counsel, entering caveat on behalf of the writ-petitioner-respondents, on the other hand, supported the impugned and order and further submitted that due to the order of stay of operation of the judgment and order of the High Court Division passed by this Division, 5 (five) children of the writ-petitioners who quaimea 101 admission in the MBBS/BDS courses in the Government Medical/Dental Colleges for the session 2011-2012 could not get themselves admitted and through the process, they lost one year. He prayed for dismissing the leave petition.
 
From the impugned judgment and order of the High Court Division, it appears that the learned Attorney General took serious objection as to the report sent by the two educationist, one being the Dean of the Faculty of Science and the other, the Chairman of the Department of English, both of Dhaka University who were requested by the High Court Division to give their opinion as to whether the two versions of the question papers, the English and the Bangla complained of in the writ petition "were different side by side to see whether the allegations as to in-correctness of the question papers and the answer key were justified." The said two educationists were also requested to re-check and reassess the answer scripts of the children of the writ-petitioners on the basis of correct questions and the answer key and report accordingly. The objection of the learned Attorney General was that the said educationists might have prepared the report under the influence of the writ-petitioners, so the same should not have been be accepted by the High Court Division. Before this Court, the learned Attorney General also has taken similar objection. The High Court Division rejected the said objection of the learned Attorney General on the finding that at the time of "engaging the experts in this task, clear and specific terms of reference were made available to them in presence of both the parties. It is to be noted that the experts are senior professors of Dhaka University and as such, there must not be any objection as to their competence, and no objection as such was ever made by either party at time of their appointment. So, in our opinion, a professor of the Dhaka University possesses the requisite experience in his or her specialized field." The learned Judges further observed that in their considered opinion the concerned experts are independent, neutral and actual professionals with the substantive experience and expertise with regard to matters relating to examinations including admission tests. We are in one with the view taken by the High Court Division as to the competence of the two experts in giving the report on the subject. We further add that the High Court Division passed the order seeking opinion of the two experts on 15.03.2012 and the experts submitted their reports on 02.05.2012, but no affidavit was filed by writ-respondent Nos.3 and 4 alleging any influence upon them by the writ-petitioners in preparing the report. It is also significant to note that at the time of their engagement as experts on the subject no objection was raised on behalf of the writ-respondents. As it appears from the impugned judgment and order, the learned Attorney General simply raised the allegation of influence of the writ-petitioners upon the experts in preparing the report only for the sake of objection, as he could not bring any allegation of relationship of the writ-petitioners or their children, (the candidates in the MBBS/BDS admission test) or any connection with the said two professors of Dhaka University. Even in the leave petition, nothing of that sort has been alleged. It is also pertinent to note that the learned Attorney General did not raise any objection before the High Court Division as to the competency of the said two experts in giving their opinion on the subject. The objection of the teamed Attorney General as to me repon 01 me experts upimu us just etherical and at the same time unkind.
 
The High Court Division rejected the submission of the learned Attorney General that the writ-petitioners had no locus standi to file the writ petition as they were not personally aggrieved holding that "the petitioners have sufficient interest and are aggrieved by the actions of the respondents. " In taking the said view the High Court Division relied upon the cases of Kazi Mokhlesur Rahman -vs- Bangladesh and others, 26 DLR (AD) 44; Dr. Mohiuddin Farque -vs- Bangladesh, 49 DLR (AD) 1; Ekushe Televison -vs- Bangladesh, 54DLR (AD)130 and Brae Bank-vs-Bangladesh, 54 DLR(AD)34. We do not find anything wrong with the High Court Division in holding so. We like to further add that the writ-petitioners are none else but the father of 10 (ten) students who appeared in the admission test with a view to get themselves admitted into the MBBS/BDS courses for the session 2011-2012 and due to the errors in the question papers and the answer key when their said hopes were going to be shattered and thus their future was going to be ruined, they were the most concerned persons about the future of their children, because in the long run, they shall have to bear their burden in case they failed to establish themselves in their lives by pursuing proper education. Therefore, the writ-petitioners were definitely ; the persons aggrieved within the meaning of article 102 of the Constitution and they had the locus standi to file the writ petitions.
 
The learned Attorney General also sought to knock out the writ-petitioners from their right to invoking the power of judicial review of the High Court Division under article 102 of the Constitution on the submission that the issues involved in the writ petition were disputed questions of fact which could not be adjudicated upon in writ jurisdiction, which is decided in a summary manner relying on the affidavit-evidence only. He elaborated his point contending further that the "question papers" could not be made amenable to writ jurisdiction. Let us see how far the learned Attorney General was correct in making this submission.
 
A fact involved in a writ petition does not become disputed simply because the same is denied or disputed by a contending party, unless the veracity of the same is put under challenge or is put under doubt by filing any counter document/paper which, prima facie, renders a fact emerging from a document/paper annexed to the writ petition relied upon by the writ-petitioner^) doubtful or questionable. In this case, the writ-petitioners specifically stated in the writ petition that their children appeared in the admission test of the MBBS and BDS courses (Government and Non-Government) held on 30.09.2011 for the session 2011-2012 and the test were held under Multiple Choice Question (MCQ). Soon after the admission test had been over, the candidates while discussing among themselves came to know that there were serious errors and anomalies between the Bangla and the English versions of the question papers of the test which may severely affect the merit list for the English medium/ versions students and they identified as many as 19 (nineteen) errors/ anomalies/inconsistencies and other discrepancies between the English and the Bangla versions of the said question papers as a whole affecting their merit list. There was no dispute about the authenticity of the question papers. The only question to be decided was as to whether there were errors/anomalies/inconsistencies and other discrepancies between the Bangla and the English versions of the question papers as identified by the children of the writ-petitioner and if there were errors/anomalies/ inconsistencies in the question papers whether those had affected the merit lists of the children of the petitioners. The admission test was heia unuci MCQ system so, if the questions were set correctly in clear and unambiguous language without any error/ anomaly/inconsistency and other discrepan-cies between the two versions the English and the Bangla with the corresponding correct answers, there would have been no confusion in choosing the correct answers. In the impugned judgment, the questions have been reproduced. From the impugned judgment, it further appears that by filing a supplementary affidavit (copy not included in the paper book) on 21.05.2012 the writ-petitioners stated that after obtaining the copies of the answer key and the answer scripts from the respondents on 14.02.2012, pursuant to an order of the Court passed on 08.02.2012, it was revealed that apart from the above 19 anomalies, 11 (eleven) other questions possessed wrong answer key (these have been quoted hereinbefore). These assertions were not denied by the writ-respondents by filing any affidavit; interestingly writ-respondent Nos.3 and 4 filed two affidavits-in-opposition. In the first affidavit-in-opposition, the respondents admitted that there were some mistakes/errors /discrepancies in the Bangla and the English versions of the question papers by saying that in some question, there were partial mistakes and in some questions, the answers were partially wrong. But, subsequently, by filing another affidavit-in-opposition, the respondents took a "U" turn and tried to justify their mistakes/errors. In this regard, the observations of the High Court Division are very relevant to see the conduct of respondent Nos.3 and 4. The High Court Division observed that:
"It may be mentioned here that initially the answering respondents (respondents No.l, 3 and 4) were represented by Senior Advocate Mr. Abdul Matin Khasru who upon appearing before this Court, endeavoured to accommodate the children of the petitioners for admission to the government medical/dental colleges through amicable discussions with the respondents but it seems that his aforesaid attempts could not see the light of day for the reasons bent, (sic) known to the respondents. Subseque-ntly, the learned Attorney General himself appeared in these cases and took the stance of contesting the Rules by opposing the prayer of the petitioners vehemently."
 
The High Court Division took exception to the said dual stand of the contesting respondents with the further observations that:
". . .we find that the new stance of the respondents is unfair and unjust and, further, the respondents are estopped by law from changing their position as, initially they admitted their fault in performing   their   statutory   duties   and   by   denying   the   same subsequently, they cannot ignore actions complained of.
 
The above dual and contradictory stand of the respondents do not appear to us bonafide. When the respondents themselves admitted that there were errors/mistakes/ discrepancies in the Bangla and the English versions of the question papers which was also the claim of the writ-petitioners how they could claim that the questions involved in the writ petition were disputed questions of fact
 
Another pertinent question is that was the High Court Division justified in requesting the two experts, namely, the Dean of the Faculty of Science and the head of the Department English of Dhaka University to see as to whether the two versions of the question papers complained of in the writ petition were different, side by side to see whether the allegations as to the in-correctness of the question papers and the answer key were justified and also to re-check and reassess the answer scripts of the children of the petitioners on the basis of the correct questions and answer key in deciding the merit of the Rule. It is a well settled legal proposition that the procedure followed in disposing of an application under article 102 of the Constitution is summary and such application are decided on affidavit-evidence, that is, the annexures annexed to the writ petition, the affidavit-in-opposition and further affidavits, if there be any, in support of the case of the respective party as asserted therein; where a fact has to be tested on the basis of evidence to be adduced by the parties following the rules of evidence as provided in the Evidence Act including the right of the other side to cross-examine a witness that fact cannot be decided by the High Court Division in exercising the power of judicial review. But there is no bar in taking the aid of the provisions of the Evidence Act if the Court feels it necessary to consider a fact involved in the writ petition and to consider a document produced by a party. The Court exercising the power of judicial review may follow such procedure and may make such orders as may appear to it to be just to decide a point involved in the writ petition. We like to observe further that fin a proceeding under article 102 of the Constitution, the provisions of the Code of Civil Procedure as such are not applicable, but to decide the questions involved in the petition, the principles of the relevant provisions of the Code of Civil Procedure may be applied. So, in the instant case, the High Court Division had the option to invoke the principles of the provisions of section 151 of the Code of Civil Procedure to request the two experts of Dhaka University to give their opinion on the subject to secure the ends of justice and thus to decide the issues involved in the writ petitions. In the facts and circumstances of the case, the High Court Division followed the right procedure in seeking opinion of the two professors of Dhaka University .
 
The opinion of an expert is not conclusive evidence, it has to be assessed and considered like any other ordinary evidence and a Court as well is not bound to act on the opinion of an expert. While dealing with a writ petition, the High Court Division is quite competent to deal with the factual issues involved therein either by dealing with the same on its own or through the aid of experts in order to arrive at a fair and correct conclusion and if the Court which deals with a writ petition does not consider a fact disputed determination of which would require thorough examination by taking evidence and if the Court is satisfied that it. can determine the factual issues on the basis of papers available before it and by applying its ordinary prudence, then there is no legal bar to adjudicate such questions. Here, in the instant case, the High Court Division did not decide the matter solely on the report of the two experts, the learned Judges themselves took the trouble to examine the papers, namely: the question papers, the answer key and the answer scripts of 11 (eleven) affected students and found apparent material errors and inconsistencies between the two bilingual sets of question papers and also mistakes in both the question papers as well as in the answer key to the English version which were so apparent that the same was detectable by the Court or by any educationist and then took into consideration of the report of two educationist of Dhaka University with the observation that "our findings tally with those of the aforesaid report. " In doing so the learned Judges did not commit any procedural error or mistake and the procedure, so adopted, did not at all prejudice the respondents. The High Court Division rightly observed that the concerned authority was negligent and callous in performing the duties as to setting question papers as well as in setting the answer key.
 
In the context, the High Court Division rightly found that there was no legal basis of the submission made by the learned Attorney General that the expert's report does not have any evidentiary value as the said experts had not been cross-examined or their report had not been filed by swearing affidavit and as such, it could not take judicial notice of the same under the Evidence Act inasmuch as the Court is always empowered to scrutinise and consider any document for the purpose of dispensing proper and fair justice. Against the opinion of the two experts, the writ-respondents did not file any objection by filing any affidavit. We also do not find any rationale in the submission of the learned Attorney General that the expert report does not have any evidentiary value as the said experts were not subject to cross examination or their reports were not filed by filing any affidavit. It is to be kept in mind that it is the Court not the party which sought the assistance of the experts for arriving at a proper and fair decision of the issue involved in the writ petition. It is to be further kept in mind that in the writ petition authenticity of any document was not involved, the question was whether the Court was competent to entertain the contents of the report of the experts and as such, the question of giving chance to the respondents to examine the two experts did not arise at all.
 
In view of the fact that in the writ petitions, the question of admission of the children of the writ-petitioners into the MBBS/BDS courses in the Government Medical/Dental Colleges for the session 2011-2012 was involved, the High Court Division rightly entertained the writ petition, otherwise if on mere allegation of dispute as to the question of facts as raised by the writ-respondents, they were pushed back to the civil Court, the matter would have been dragged and thus the very purpose of taking the matter to the Court of law would have been frustrated. Moreso, in the instant case time was an important factor. As already found herein-before,[there was no dispute as to the question of fact, so we find no substance in the submission of the learned Attorney General that there being disputed question of fact, the High Court Division was not justified in entertaining the writ petition.
 
From the impugned judgment and order, it appears that out of 11 children of the two writ-petitions only five were qualified for admission in the MBBS/BDS course in the Government Medical/Dental Colleges as they secured in excess of the qualifying minimum score of 152.25 for such admission. From the judgment and order, it further appears that in finding the five children of the five petitioners to have secured score more than 152.25 marks the learned Judges aggregated the marks secured in the written examination and the admitted 100 marks of SSC and HSC and thus they secured 156, 152.75, 156.50, 160.00 and 152.25 marks respectively. The learned Attorney General could not show with reference to any paper that the said calculation of total score by the learned Judges of the High Court Division was wrong.
 
It further appears that the writ respondents were not fair in dealing with this case inasmuch as from the judgment of the High Court it appears that when the writ petitions were fixed for hearing on 14.11.2011 they persisted in taking the consecutive adjournments and thus delayed the disposal of the matter besides taking two dual/ contradictory stand. It is more unfortunate that when the High Court Division directed the writ-respondents to make immediate necessary arrangements for admission of the children of five writ-petitioners, namely: 3, 4, 5, 6 and 10 in the MBBS/BDS course in the Government Medical/Dental Colleges, the writ-respondents without complying with the said direction of the High Court Division filed Civil Miscellaneous Petition No.689 of 2012 and on 21.06.2012 obtained the order of stay of operation of the judgment and order of the High Court Division from this Division subject to the condition that they shall keep 5(five) seats vacant, but, in the meantime, the session 2011-2012 expired for no default of the children of 5(five) petition-ers. It further appears that considering the fact that the Rule issued in the writ petition shall become infructuous the High Court Division by order dated 08.02.2012 restrained the respondents from filling up 153 vacant seats in the MBBS/BDS course in the Government Medical/Dental Colleges which fell vacant due to the transfer or non-admission of some students till disposal of the Rule. Thus, it is clear that the High Court Division did not at all interfere with the entire admission process in the Medical/ Dental Colleges. This Division also passed the order of stay of operation of the judgment and order of the High Court Division subject to keeping the five seats vacant, that is, for the five children of writ-petitioner Nos.3, 4, 5, 6 and 10, so there was no difficulty on the part of the respondents to make arrangements for admission of the said 5(five) students subject to the result of the leave petition, but they did not.
 
We do not find any reason on the part of the learned Attorney General to be apprehensive that if the judgment and order of the High Court Division in entertaining a dispute relating to an admission test like the instant one is upheld, this may lead to a serious consequences in the administration of medical education as well as other education and hundreds of writ petitions would be filed inasmuch as every case has its own peculiarity and feature. As already stated hereinbefcretin the instant case, the High Court Division entertained the writ petition and interfered in the matter as there were apparent errors and inconsistencies between two bilingual sets of question papers as well as in the answer key to the English version affecting the fate of the children of the petitioners as to their admission in the MBBS/BDS course in the Government and Medical/Dental Colleges and in fact, those who were genuinely affected because of the apparent errors/anomalies/ inconsis-tencies in the question papers of the two versions, the Bangla and the English came before the Court and not the hundreds. In the context, the High Court Division rightly entertained the writ petition.
 
However, we make it very clear that in entertaining an application under article 102 of this nature, the High Court Division shall have to be extremely cautious and see that the process of admission is not hampered and jeopardised just on mere filing of an application by any body and it shall interfere in a rare of the rarest case like the instant one.
 
The five students who are the children of writ-petitioner Nos.3, 4, 5, 6 and  10 in (names have been mentioned hereinbefore) who were found eligible for admission in the MBBS/BDS course in the Govern-ment Medical/Dental Colleges could not get themselves admitted because of the order of stay of operation of the impugned judgment and order obtained by the writ-respondent-petitioners from this Division for no fault of their own! and in the process the academic year 2011-2012 expired. Be that as it may, the five students who were found eligible by the High Court Division for admission in the MBBS/BDS course in the Government Medical/Dental Colleges cannot be allowed to suffer more and we feel that complete justice will be done if we direct the writ-respondent-petitioners herein to make immediate arrangements for their admission into the MBBS/BDS course in the Government Medical/Dental Colleges for the session 2012-2013. Accordingly, the writ-respondent-petitioners are directed to take immediate arrangements for admission of 5(five) children of the petitioners in the Government Medical/Dental Colleges for the session 2012-2013. The 5(five) students shall not have any claim for admission in any particular Government Medical/Dental College, but the writ-respondents shall keep in mind the Government Medical/Dental College where they could get admission in the session 2011-2012 as per the marks secured by them as calculated by the High Court Division (marks have been mentioned hereinbefore student wise).
 
For the discussions made above, we do not find any error in the impugned judgment and order passed by the High Court Division calling for our interference.
 
With the above observations and directions the petition is dismissed.
 
Ed.