Madras High Court
G.Fibi vs The Secretary To Government on 5 January, 2016
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.01.2016
(Reserved on 10.08.2015)
Coram
The Hon'ble Mr. Justice T.RAJA
W.P. (MD) No.8731 of 2015
& M.P(MD)No.1 of 2015
G.Fibi ... Petitioner
Vs
1.The Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai ? 600 009.
2.The Interim Administrator,
ATSVS-Siddha Medical College,
Mugappair West,
Chennai ? 600 037.
3.The Vice-Chancellor,
Dr.MGR Medical University,
Rep. By its Registrar,
60, Anna Salai, Guindy,
Chennai ? 600 032.
4.The Principal,
ATSVS Siddha Medical College,
Munichirai,
Kanyakumari District ? 629 171.
5.Dr.R.Iyankannu,
Reader.
6.The Principal,
Government Siddha Medical College,
Trivandrum Road,
Palayamkottai,
Tirunelveli ? 627002. ... Respondents
Prayer:- Petition filed under Article 226 of the Constitution of India
praying to issue Writ of mandamus to direct the respondents 1 to 4 to revalue
the petitioner's answer sheets in the clinical examination i.e. Paper IV
Special Medicine namely Sirappu Maruthuvam including Yoga and Varma in 3rd
professional examination held on 10.03.2015 at A.T.S.V.S. Siddha Medical
College, Munchirai, Kanyakumari District, with the support of the
petitioner's case sheets submitted at the time of clinical examination and
patient's ward case sheets and to declare the revised result in accordance
with the re-marks the petitioner get after the revaluation.
!For petitioner .. Mr.A.Thirumurthy
^For R1 .. Mr.R.Anandha Raj
For R2 & R4 .. Mr.S.Gokul Raj
For R3 .. Mr.C.Karthick
For R5 .. Mr.K.P.Narayana Kumar
For R6 .. No Appearance
:ORDER
By way of filing this writ petition under Article 226 of the Constitution of India, the petitioner seeks for a direction to the respondents 1 to 4 to revalue her answer sheet relating to clinical examination i.e. paper IV Special Medicine, namely, Sirappu Maruthuvam including Yoga and Varma in 3rd professional examination, held on 10.03.2015 at A.T.S.V.S. Siddha Medical College, Munchirai, Kanyakumari District.
2. Learned counsel appearing for the petitioner submitted that the petitioner joined the Bachelor of Siddha Medicine and Surgery (B.S.M.S.) Course in a college affiliated to the third respondent University in the year 2009. Duration of the said Course is 5 + years including one year of compulsory Rotatory Resident Internship (House Surgeon) and the said Course is conducted in three professionals and duration of each professional course is 18 months. Whileso, the petitioner appeared for the first professional examination in February, 2012 and obtained 81.7% of marks in aggregate and in the second professional examination held in the month of August, 2013, the petitioner secured 75% of marks in aggregate. Thus, he pleaded, the performance of the petitioner right from the beginning of the course was consistently excellent, besides obtaining first mark of the said College.
3. It is further contended that the fifth respondent / Dr.R.Iyankannu, Reader, A.T.S.V.S.Siddha Medical College, Kanyakumari, took classes for the Special Medicine paper ?Sirappu Maruthuvam including Yoga and Varma?, one of the papers for the third professional examinations. In order to publish the books, the fifth respondent asked the petitioner to prepare notes, whereby, the petitioner wrote 15 pages, however, even after submitting 15 pages, fifth respondent again continued to press the petitioner to write more and more notes for his book. However, the petitioner refused to do so, hence, the fifth respondent developed grudge against her. Whileso, the petitioner appeared for the third professional examination in February, 2015 and wrote all the six papers including practical and clinical examination. While she was waiting for publication of results of the third professional examination, to her shock and surprise, it is found that she has failed in clinical examination of special medicine paper, namely, Sirappu Maruthuvam including Yoga and Varma and thus, again, she was asked to appear for the said paper as arrear to obtain the degree. While contending so, learned counsel has also brought to the notice of this Court the marks obtained by the petitioner in the third professional examination as stated below:
Paper I -- 68.7% (No clinical)
Paper II -- 81.6% (No clinical)
Paper III -- written : 52.0%
Clinical : 78.6%
Total : 68.0%
Paper IV ? Special Medicine -- Written 62.0%
Clinical 26/70
(Passing minimum 35) failed for want of 9 marks.
Total -- 136/250 (minimum for pass 125)
Paper ? V -- Written 54.0%
Clinical 71.0%
Total 54.4%
Paper VI -- Written 70.0%
Clinical 78.6%
Total 74.8%
4. By narrating the above said marks, it is further contended that though the petitioner obtained 78.6%, 71% and 78.6% of marks in the clinical examination of other three papers respectively, only in the paper IV ? Sirappu Maruthuvam, including Yoga and Varma, the petitioner was awarded with 26 marks out of 70 marks, so as to fail her for want of 9 marks, for, minimum marks for passing the said paper fixed as 35 marks. According to the petitioner, in the clinical examination, a candidate investigates the patient for signs of disease, identifies the disease and prescribes medicine with dosage for the disease and that the clinical examination contains 2 parts, one long case and one short case against the marks of 50 and 20 respectively, therefore, a candidate should obtain 35 marks out of 70 marks for passing the said examination. It is further submitted that generally, if a candidate does not fare well or fails in the clinical, the examiners inform the candidate at the time of oral about the candidate's poor performance, but, in the case on hand, the petitioner was not given any information, therefore, she was under the fond hope that she would get more than 70% of marks in the clinical examination, but, the results were in contrary to her expectation as she was awarded with 26 marks out of 70 marks.
5. It is the further contention of the petitioner that in the third professional examinations held in February, 2015, 23 girls and 5 boys were appeared for the Special Medicine paper, whereby the petitioner was awarded with fail mark along with two other boys by the internal examiner/fifth respondent with a malafide intention of taking revenge on her for refusing to write notes for the paper to be published by him, therefore, all the credits of securing college first mark in the first and second professional examinations were gone to the dooms due to the ruthless attitude of the fifth respondent. Thus, with these contentions, he prayed for a direction as stated supra.
6. In support of his contentions, learned counsel for the petitioner has also relied upon a judgment of this Court in the case of President, Board of Secondary Education v. D.Suvankar ((2007) 1 SCC 603), whereby, the the Hon'ble Apex Court pointed out that it would be wholly wrong for a Court to adopt a purely pedantic and idealistic approach to the problem of this nature, isolated from the actual realities and grass-root problem in the working of the system, therefore, in the matters of awarding marks, the Examiner has to be fair and should ensure that the answers are properly evaluated whenever revaluation is not permissible.
7. Again, he further relied upon a judgment of the Madhya Pradesh High Court in the case of Pranshu Indurkhya v. State of M.P. (AIR 2005 M.P.
152), wherein the Hon'ble Division Bench of Madhya Pradesh High Court, while summarizing the principles to be applied in the case of revaluation, held that where the rules do not provide for revaluation, the High Court will not normally direct the production of the answer scripts for its scrutiny or order revaluation. But in rare and exceptional cases where malafide or tampering is made out, or where injustice has been caused on account of gross negligence, the Court may direct revaluation in exercise of its jurisdiction under Article 226 of the Constitution of India.
8. Placing on record a judgment of this Court in the case of State of Tamil Nadu, rep. By its Secretary and others v. J.Amritha (2013 6 MLJ 665), learned counsel submitted that this Court, in the above said judgment, by following the judgment of the Hon'ble Apex Court in the case of Union of India and others v. R.Reddappa and another (1993) 4 SCC 269, and by upholding the order passed by the learned Single Judge directing revaluation of answer sheets in the absence of any rule for revaluation, imposed a cost of Rs.30,000/- as compensation payable to the writ petitioner for unnecessarily dragging the issue. Therefore, on this basis, he prayed for a direction to the respondents 1 to 4 as stated supra.
9. Per contra, learned counsel appearing for the third respondent, by filing a detailed counter affidavit, submitted that according to the amended Regulation of the Central Council of Indian Medicine, one should secure 50% of marks each in theory, practical and also in aggregate of University written, practical, oral and internal assessment. While such being the provision, the petitioner during the February 2015 examination, appeared for III professional examination and passed in theory and failed in clinical, hence, she was declared as fail as per the Regulations for the Central Council of Medicine.
10. Attacking the contention of the petitioner that she was failed in the clinical examination due to the personal grudge of the fifth respondent, learned counsel for the third respondent vehemently contended that the said practical examination was conducted in the presence of both the internal and external examiners who are having vast teaching experience in the concerned subject, hence, it is not possible for any examiners to show their personal grudge and vindictive attitude towards the candidate during the practical examination, therefore, such contention of the petitioner is baseless and untenable, especially when she did not raise any such allegation against the examiners either at the time of writing the examination or subsequent to the examination and such an allegation raised by the petitioner against the fifth respondent is not only an afterthought to achieve the object indirectly, but also invented for the purpose of filing the present writ petition.
11. It is further submitted by the learned counsel for the third respondent that since the competent examiners have conducted the clinical and viva voce examination in respect of the petitioner, the question of negligence or oversight does not arise. It is further stated that the request of the petitioner for revaluation is not legally feasible, because there is no provision for revaluation in the Regulation of Central Council of Indian Medicine and the Regulation of the third respondent University.
12. In support of his contention, he has also relied upon a judgment of this Court in the case of C.Jagadiswaran v. Vice-Chancellor, the Tamil Nadu Dr.M.G.R.Medical University (2014 (3) CTC 209) to contend that in the absence of any provision for revaluation, a mandamus cannot be issued by the Court directing the authorities to undertake revaluation. In such circumstances, he requested this Court not to give a direction as prayed for by the petitioner.
13. Learned counsel appearing for the fourth respondent, by filing a detailed counter affidavit, submitted that as per the third respondent University Regulation, there is no provision for revaluation of the clinical examination. Further, attacking the contention of the petitioner that the fifth respondent requested some of the students to prepare notes for publishing books, it is contended that no such complaint was ever received from any one of the students, besides, the petitioner has not made any such complaint to the management until the results were published, therefore, the allegation of malafide as against the fifth respondent is not legally correct. Moreover, along with the petitioner, two other candidates have also failed in the Clinical examination, however, they did not raise any such allegation as alleged by the petitioner, therefore, the petitioner cannot complain that the fifth respondent with a malafide intention did not correct her clinical examination paper in a fair manner. With such submissions, he prayed for a dismissal of the writ petition.
14. Learned counsel appearing for the fifth respondent, by filing a detailed counter affidavit, submitted that the fifth respondent never demanded the petitioner to write more and more notes for publishing books and the fifth respondent never shown any hostile attitude towards the petitioner, instead he gave bonafide certificate to her in par with other students. It is further submitted that there are two examiners namely external and internal examiners and two parts of clinical examinations would be conducted, namely, long case and short case against the maximum marks of 50 and 20 respectively and in the said examination, the internal examiner is also having respective role in conducting clinical examination and that he is not an office assistant to do propriety work to conduct practical examination as alleged by the petitioner and each examiners will do their part and assess the candidates on the basis of the case sheet and oral test of clinical examination, hence, the contention of the petitioner that the internal examiner will have limited role is bereft of any substance and logic.
15. It is the further contention of the fifth respondent that apart from the theory exam, viva and clinical examination will be conducted and that the clinical examination consists of 2 parts, namely long case and short case. The internal and external examiners will evaluate either one paper of each student and they will be awarded 70 marks, namely, 50 marks for long case and 20 marks for short case. Whileso, the petitioner was awarded 6 marks out of 20 marks and on the said day, maximum marks awarded by the fifth respondent was 12 marks and therefore, even if the petitioner is awarded with 12 marks, she would not get the pass marks as required by the University.
16. Adding further, learned counsel for the fifth respondent contended that diagnosis can only be done on the basis of the complaints of the patient and if the patient was unable to spell the real symptoms, it is the duty of the physician to ask the same so as to clear the real disease. However, in the short case, the petitioner mentioned about the hip pain and pain at the time of laying or sitting and with these symptoms, she came to the conclusion about the same as Thandaka Vatham disease, whereas, as per the text book written by Kuppusamy Mudaliyar, an accepted text book for educating siddha students by the University, defines the nature and symptoms as Lumbarspondylosis, hence, he pleaded, the symptoms narrated by the petitioner is not at all correct, besides, she failed to do the simple test, namely SLRT ? Strength, Leg, Raising Test, and without these examination, lumbarspondylosiss cannot be conducted, hence, the conclusion reached by the petitioner to ascertain the real diseases is not at all correct. It is his further contention that since the Siddha medication is a peculiar nature, while prescribing the medicines, the physician has to mention, the age, purgative medicine and external medicine, however, the petitioner did not mention anything in her examination. In such circumstances, he further vehemently contended that several allegations raised by the petitioner as stated above, without knowing the fault committed by her, are vexatious. With these submissions, he prayed for a dismissal of the writ petition.
17. Heard the learned counsel appearing on either side and perused the materials available before this Court.
18. Given the facts and circumstances of the case, the short question that arises for consideration is whether, in the absence of any statutory provision for revaluation, a student can seek for revaluation of an answer paper or not?
19. It is not in dispute that the petitioner had secured 81.7% and 75% of marks in aggregate in the first and second professional examinations respectively. However, the dispute arose in the third professional examination conducted in February, 2015, whereby, in the clinical examination of Paper-IV(Sirappu Maruthuvam including Yoga and Varma), the petitioner was awarded 26 marks out of 70 marks and thus, she was declared fail in the said paper for want of 9 marks. There were two parts of clinical examinations conducted by the third respondent University, namely, long case and short case as against the maximum marks of 50 and 20 respectively.
20. According to the petitioner, though she did well in the clinical examination, she was awarded 20 marks out of 50 in the long case by the external examiner and 6 marks out of 20 marks in the short case by the fifth respondent/internal examiner, which is nothing but victimisation at the instigation of the fifth respondent, for, she refused to prepare notes for the fifth respondent to publish the book. In such circumstances, it is relevant to refer to the counter affidavit filed by the fifth respondent/internal examiner, wherein at paragraph 8 thereof, it is stated that in respect of the petitioner, the fifth respondent/internal examiner has corrected the short case and given marks by considering her performance. Relevant portion thereof is reproduced hereunder:
?8................ in respect of the petitioner, the fifth respondent corrected short case and given marks by considering her performance.?
21. It is also more relevant to refer to paragraph 11 of the counter affidavit filed by the third respondent University, which is extracted below:
?11...................... In the examination held in February, 2015, the petitioner along with other candidates have wrote their examination in the centre of fourth respondent College in the presence of above Board of Examiners. Hence it is not possible for any examiners to show their personal grudge and vindictive attitude towards the candidate during the practical examination..............?
22. It is also more appropriate to extract the relevant portion of the paragraphs 3 and 4 of the counter affidavit filed by the fourth respondent College and the same are reproduced as under:
?3.............. Hence, the clinical examination consists of both written and oral test for which marks are awarded jointly by both examiners. Hence, it is not correct to allege that role of internal examiner is limited only to arranging and assisting the external examiner.
4.............. The marks awarded for the long and short case have been jointly awarded by the internal and external examiner and the same has been forwarded to the third respondent University. Hence, it is not correct to allege that the short case was independently examined by the fifth respondent and the long case was independently examined by the external examiner.?
A mere perusal of the counter affidavit filed by the respondents 3 to 5 as stated above depicts that while the fifth respondent / internal examiner has categorically admitted that in respect of the petitioner, the fifth respondent corrected the short case and given marks by considering her performance, the fourth respondent College has given a conflicting statement stating that both the examiners jointly awarded marks. According to the Regulations of the Indian Medicine Central Council Amendment Regulations, 2006, the practical examination should be conducted jointly by both the examiners, whereas, in the present case, the fifth respondent has alone conducted the clinical examination for short case without the presence of the external examiner, which, in my view, is a gross violation of regulation. Further, the fourth respondent College as stated above categorically stated that the both the examiners have jointly awarded marks. Therefore, such contrasting statement between the fifth respondent/internal examiner and the fourth respondent College would compel this Court to order for revaluation, besides the consistent performance of the petitioner right from the beginning of the course as she was admittedly the College topper in the first two professional examinations.
23. At this juncture, it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of President, Board of Secondary Education, Orissa, and another v. D.Suvankar and another ((2007) 1 SCC 603, whereby the Hon'ble Apex Court, by explaining the importance of evaluation of answer papers by the examiners, held thus at paragraphs 6 and 8:
6. Award of marks by an examiner is to be fair, and considering the fact that re-evaluation is not permissible under the statue, the examiner has to be careful, cautious and has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. An examination is a stepping stone on career advancement of a student. Absence of a provision for re-evaluation cannot be shield for the examiner to arbitrarily evaluate the answer sheet. That would be against the very concept for which re-evaluation is impermissible.
......................
8. It has to be ensured that the examiners who make the evaluation of answer papers are really equipped for the job. The paramount consideration in such cases is the ability of the examiner. The Board has bounden duty to select such persons as examiners who have the capacity, capability to make evaluation and they should really be equipped for the job.
Otherwise, the very purpose of evaluation of answer papers would be frustrated. Nothing should be left to show even an apprehension about lack of fair assessment...........?
(emphasis supplied)
24. In the case of Union of India and others v. R.Reddappa and another ((1993) 4 SCC 269), the Hon'ble Apex Court observed that once the Court is satisfied of injustice or arbitrariness, then the restriction, self- imposed or statutory, stands removed and no rule or technicality on exercise of power can stand in way of rendering justice. While such being the well settled legal proposition, in the case on hand, the petitioner was right from the beginning of the course has consistently secured high marks and she even got the first rank in the first two professional examinations of the said College. Besides, as stated above, the fifth respondent has categorically stated that he only corrected the short case of the clinical examination in respect of the petitioner, whereas, on the contrary, it is stated by the fourth respondent College that both the internal and external examiners have jointly awarded the marks to the petitioner. Thus, in view of such repugnant statement, this Court deems fit to order for revaluation.
25. In C.Jagadiswaran's case cited supra relied upon by the learned counsel appearing for the fourth respondent College, the petitioner therein failed in three subjects out of seven subjects and has had a poor academic record, therefore, learned Division Bench of this Court in the said judgment, finding that there was no malafide or tampering made out, refused to give a direction to the respondent for revaluation. However, in the case on hand, at the risk of repetition, it may be mentioned again that the petitioner right from the beginning of the Course has consistently secured high marks and she even got first rank in the first two professional examinations of the respondent College and again, though the fifth respondent/internal examiner stated that he only corrected short case of the petitioner, the fourth respondent College in their counter affidavit has categorically stated that both the examiners have jointly awarded the marks. Such inconsistent stand compels this Court to accept the case of the petitioner. Therefore, in my view, the above said judgment relied on by the learned counsel for the respondent College has no application to the case on hand. Thus, this Court, finding such gross negligence caused to the petitioner as stated supra, deems fit to order for revaluation.
26. Accordingly, the respondents 1 to 4 are directed to revalue the petitioner's answer sheet in the clinical examination i.e. Paper IV (Special Medicine namely Sirappu Maruthuvam including Yoga and Varma) of the third professional examination held on 10.03.2015 at A.T.S.V.S. Siddha Medical College, Munchirai, Kanyakumari District. On such revaluation, they are further directed to declare the revised result of the petitioner.
27. In fine, the writ petition stands allowed to the extent mentioned above. No Costs. Consequently, connected miscellaneous petition is closed. The Registry is directed to hand over the sealed cover produced before this Court on 10.08.2015 to the counsel appearing for the third respondent University upon obtaining counter signature from him.
To
1.The Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai ? 600 009.
2.The Interim Administrator, ATSVS-Siddha Medical College, Mugappair West, Chennai ? 600 037.
3.The Vice-Chancellor, Dr.MGR Medical University, Rep. By its Registrar, 60, Anna Salai, Guindy, Chennai ? 600 032.
4.The Principal, ATSVS Siddha Medical College, Munichirai, Kanyakumari District ? 629 171.
5.The Principal, Government Siddha Medical College, Trivandrum Road, Palayamkottai, Tirunelveli ? 627002. .