Madras High Court
G. Prashanthi vs The Tamil Nadu Dr.Mgr Medical ... on 25 September, 2012
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-09-2012 CORAM: THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.21066 of 2012 G. Prashanthi ... Petitioner Vs. 1. The Tamil Nadu Dr.MGR Medical University, rep.by the Registrar, 69, Anna Salai, Guindy, Chennai 600 032. 2. The Controller of Examination, The Tamil Nadu Dr.MGR Medical University, 69, Anna Salai, Guindy, Chennai 600 032. 3. Ragas Dental College, rep.by its Principal, ECR Road, Uthandi, Chennai 600 119. ... Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the first and second respondents to re-value the petitioner's answer sheet in the Minor Oral Surgery and Trauma in the MDS (Oral & Maxillo Facial Surgery) examination conducted by the first and second respondents in April, 2012. For Petitioner : Mr.Sathish Parasaran For Respondents 1&2 : Mrs.Narmadha Sampath O R D E R
Petitioner, who appeared for MDS Examinations held in April, 2012, is praying for issuing a writ of mandamus directing Dr.MGR Medical University, to re-value her answer paper in the subject Minor Oral Surgery & Trauma in MDS (Oral & Maxillo Facial Surgery Br.) Examination.
2. The brief facts necessary for disposal of this writ petition are that the petitioner passed BDS Examinations in MS Ramiah Dental College & Hospital, Bangalore, and she joined in the third respondent Self-financing Dental College in MDS (Oral and Maxillo Facial Surgery Br.) course. The third respondent college is affiliated to Dr.MGR Medical University, first respondent. 'Minor Oral Surgery & Trauma' is a theory paper in MDS course in the said Branch and the required pass mark in the paper is 50 out of 100. According to the petitioner, 16 students had appeared in MDS examinations in the said Branch, held in April, 2012, of which six students are from the third respondent College, including the petitioner. It is claimed by the petitioner that she had written the examination to her satisfaction as the questions asked were straight questions and she was confident of scoring high marks in the said paper.
3. The results of the examinations were declared and the petitioner failed in the said paper. 16 students appeared for the examination from the entire University, of which 12 have failed in the said paper, of which one student was subsequently declared pass due to award of grace marks. Petitioner passed in other three theory papers, dissertation, clinical examination and viva-voce. In the Minor Oral surgery & Trauma subject, petitioner scored 44 out of 100 i.e, six marks short of 50, which is the required pass mark. It is the contention of the petitioner that her answer paper was not properly valued and if re-valuation is ordered, petitioner is confident of securing 65 to 70 marks. As the petitioner was awarded 44 marks in the said paper, petitioner had been declared as failed student in MDS degree. Petitioner further states that the University statute provides award of five grace marks and even if the said five marks are awarded, petitioner is still lacking one mark and according to the petitioner, statute of University do not prohibit re-valuation of answer sheets. Petitioner applied for copy of the answer sheet, which was supplied and after going through answer sheet, she is thoroughly confident of getting 65 to 70 marks. Hence petitioner has filed this writ petition with the above prayer to order re-valuation.
4. The University filed counter affidavit contending that the petitioner is a student of MDS course in third respondent College and she appeared for MDS examinations in April, 2012 with register No.24091053. She has passed four subjects and failed in one subject viz., Minor Oral Surgery & Trauma. Petitioner scored only 44 marks out of 100 and the minimum required marks for pass is 50 marks. The valuation system in PG courses is double-valuation of all the answer papers of all the candidates. In the XVIII Standing Academic Board Meeting held on 9.9.1999 it was resolved to continue the existing system of third valuation for PG courses if there is difference of more than 30% of marks awarded by the first and second valuer. Insofar as the petitioner is concerned, she was awarded 40 marks in the first valuation and 47 marks in the second valuation. Hence both the marks were added and divided by two and consequently petitioner was awarded 44 marks out of 100. In the said subject the difference between first and second valuation being less than 30%, the paper of the petitioner was not sent for third valuation.
5. It is further stated in the counter affidavit that the petitioner is also not entitled to get five grace marks as the shortfall marks is six in the said paper. In the respondent University, there is no provision for re-valuation and the petitioner has no right to claim any additional marks based on self-assessment. The double valuation provision was framed in the regulations under sections 44(1) and (2) of the Tamil Nadu Dr.MGR Medical University Act, 1987.
6. In the additional counter affidavit filed it is further stated that the Examiners, who valued the answer paper of the petitioner are fully qualified as the first Examiner has 15 years and nine months of teaching experience after obtaining PG degree course and the second Examiner has 12 years of experience after obtaining PG degree. It is also stated therein that similar writ petition filed by the UG students were dismissed by this Court and therefore this writ petition is also liable to be dismissed.
7. Mr.Sathish Parasaran, learned counsel appearing for the petitioner submitted that in the absence of any prohibition contained in the University Statute, in appropriate case this Court can give direction to re-value the answer papers, particularly when petitioner failed only in one paper viz., Minor Oral Surgery & Trauma in MDS course, that too due to lack of six marks of which five marks are entitled to be awarded as grace marks. The learned counsel also relied on the decision of the Supreme Court reported in (2007) 1 SCC 603 : 2007 (4) LW 104 (SC) (President Board of Secondary Education, Orissa & Another v. D.Suvankar & Another) and of this Court reported in (2001) 1 MLJ 180 (S.Sudarshan Kumar v. University of Madras) in support of his contentions.
8. Mrs.Narmadha Sampath, learned counsel appearing for respondents 1 and 2 on the other hand submitted that re-valuation having not been provided under the Scheme of Examination/Regulations or Statutes of the University, petitioner has no right to demand re-valuation, particularly when the answer paper of the petitioner was already valued by two Examiners and average mark was taken as final mark. The learned counsel relied on the Supreme Court Judgment reported in (2011) 8 SCC 497 (CBSE v. Aditya Bandopadhyay) and Division Bench order of this Court made in W.P.No.14674 of 2012 dated 8.6.2012 and argued that this writ petition is liable to be dismissed as the petitioner has no right to demand re-valuation and even the Vice-Chancellor has no discretion to order re-valuation of any answer papers.
9. I have considered the rival submissions made by the learned counsel for the petitioner as well as respondents 1 and 2.
10. Petitioner appeared for MDS examinations in four theory papers, dissertation, clinical examination and viva-voce held in April, 2012. Petitioner secured 44 marks in the paper 'Minor Oral Surgery & Trauma'. In the subject Applied Basic Sciences, petitioner secured 52 marks out of 100; in Maxillo Facial Surgery she secured 55 out of 100; and in the paper called Recent Advances in Oral and Maxillo Facial Surgery, she secured 55 out of 100. In dissertation she got 65 out of 100. In clinical surgery, petitioner was awarded 120 out of 200 and in Viva-voce, she secured 65 marks out of 100.
11. It is not in dispute that the respondents 1 and 2 framed regulations for valuation of answer scripts of PG courses by two Evaluators and as per the XVIII Standing Academic Board Meeting held on 9.9.1999, if there is more than 30% difference between the marks awarded by the first and second Valuer, the answer script will be sent for third valuation. The subject discussed and the resolution passed in the meeting reads as follows:
"II(5) TO CONSIDER AND DECIDE TO ADOPT AN UNIFORM PATTERN OF VALUATION FOR ALL THE EXAMINATIONS CONDUCTED BY OUR UNIVERSITY.
Resolved to have an uniform pattern of Central Valuation for all the Examinations conducted by this University with effect from the September, 1999 session onwards.
II(6) POST GRADUATE EXAMINATION DECISION REGARDING THIRD VALUATION FIXING DEFINITE MARKS BETWEEN (DIFFERENCE) TWO VALUATION.
Resolved to continue the existing system of third valuation for P.G.Courses if the difference between the First and Second Valuation marks remain 30% (Thirty percentage)."
It is clearly established that as per the said decision of the Standing Academic Board, the petitioner's theory paper in the subject of Minor Oral Surgery and Trauma was valued by two examiners, who awarded 40 and 47 marks respectively and the percentage of difference being less than 30%, the average of the said two marks was taken as final mark and the petitioner was awarded 44 marks. The minimum pass marks being 50, petitioner is lacking six marks to get pass in the said subject. It is the admitted case that only if the candidate is in need of five marks to get pass in anyone of the subject, the University is competent to give upto five marks as grace marks in that subject. Thus, the petitioner is not entitled to get any grace mark as the petitioner is lacking six marks.
12. The issue as to whether a candidate can seek re-valuation of answer paper as a matter of right was already considered by the Division Bench of this Court, in which I was a party, in W.P.No.14674 of 2012, order dated 8.6.2012 and in the earlier Division Bench decision reported in (2011) 1 MLJ 833 (V.Yamuna Devi v. Registrar General) wherein also I was a party. In the said order dated 8.6.2012, the decisions of the Honourable Supreme Court reported in AIR 1984 SC 1543 (Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth); AIR 2004 SC 4116 (Pramod Kumar Srivastava v. Bihar Public service Commission); (2006) 6 SCC 395 (K.H.Siraj v. High Court of Keral); (2007) 1 SCC 603 : 2007 (4) LW 104 (SC) (President Board of Secondary Education, Orissa & Another v. D.Suvankar & Another); (2009) 1 SCC 599 (Sahiti v. Dr.N.T.R.University of Health Sciences); (2010) 6 SCC 759 (H.P.Public Service Commission v. Mukesh Thakur); (2011) 1 SCC 150 (Vijendra Kumar Verma v. Public Service Commission); (2011) 8 SCC 497 (CBSE v. Aditya Bandopadhyay); etc., were followed and the writ petition filed by a candidate, who appeared for written examinations for selection to Civil Judges (Junior Division) post was dismissed.
13. The contention of the learned counsel for the petitioner that there is no prohibition to seek re-valuation cannot be countenanced, because for considering the request for re-valuation, there must be a positive provision. As rightly contended by the learned counsel for respondents 1 and 2, two Examiners, who valued petitioner's answer scripts are fully qualified to value the answer papers and there is no dispute about their eligibility to serve as Examiners. For invoking the extra-ordinary jurisdiction as exercised by this Court in the decision reported in (2001) 1 MLJ 180 (S.Sudarshan Kumar v. University of Madras), petitioner has not made out any case, as her marks in other subjects are 52 out of 100 in one subject and 55 out of 100 in two other theory papers, which cannot be treated as extra-ordinary performance of the petitioner in other subjects. In the above referred decision the performance of the candidate was found as brilliant in all other subjects in B.E.(EEE) course, by this Court. In the first year he scored 83.8%, 87% in III semester; 80.75% in IV semester; 83% in V semester and in the final semester also, except in one paper he scored more than 75% marks. In the paper Instrumentation System, he was awarded 30 marks. Thus, the said decision is clearly distinguishable. The said judgment was rendered on the principle of equity and good conscious and to remove the injustice caused to the petitioner therein, who got 75% and declared pass with distinction after re-valuation. The following decisions of the Supreme Court justify such exercise of power in a given case.
(a) In Union of India and others v. R.Reddappa and another, (1993) 4 SCC 269, the Supreme Court has 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.
(b) In B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749, the Supreme Court approving the decision of the Orissa High Court in Krishna Chandra Pallai v. Union of India, (AIR 1992 Orissa 261)(FB) held as follows:
"High Court being a Court of plenary jurisdiction has inherent power to do complete justice between parties similar to Supreme Court's power under Art.142."
(c) In Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377 = AIR 1997 SC 645 = 1997 Lab.L.C. 365: (1997) 1 LNN 75, the Supreme Court has reiterated the Court's power under Art.226 as follows:
"No limitation except self imposed - the arm of Court long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts."
14. In the decision reported in (2007) 1 SCC 603 : 2007 (4) LW 104 (SC) (President Board of Secondary Education, Orissa & Another v. D.Suvankar & Another) the Supreme Court explained the importance of evaluation of answer papers by Examiners. In paragraphs 6 and 8 (in SCC) it is held thus:
"6. Award of marks by an examiner is to be fair, and considering the fact that re-evaluation is not permissible under the statute, 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 a shield for the examiner to arbitrarily evaluate the answer script. 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. ......."
15. The above decisions are indicative to the Examiners to value answer papers with seriousness and the Board/University conducting examinations must see that the Examiners are properly qualified to act as Examiners and they must have capacity/knowledge to value the answer papers properly and if any illegality is found in appropriate case the court may extend its arm to remove injustice.
16. Considering the above facts and circumstances and in the light of the judgments referred above, I am of the firm view that petitioner has not made out any case to order re-valuation of her answer paper in the subject 'Minor Oral Surgery and Trauma' in the MDS (Oral & Maxillo Facial Surgery) Examinations conducted by the first and second respondents in April, 2012. Consequently the writ petition is dismissed. No costs.
Index : Yes/No.
Internet : Yes/No. 25-9-2012
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To
1. The Registrar, Tamil Nadu Dr.MGR Medical University,
69, Anna Salai, Guindy, Chennai 600 032.
2. The Controller of Examination,
Tamil Nadu Dr.MGR Medical University,
69, Anna Salai, Guindy, Chennai 600 032.
N. PAUL VASANTHAKUMAR, J.
Vr
Pre-Delivery Order in
W.P.No.21066 of 2012
25-9-2012