Andhra HC (Pre-Telangana)
Dr. S.A. Hakeem And Others vs N.T.R. University Of Health Sciences, ... on 23 August, 2000
Equivalent citations: 2000(5)ALD733, 2000(5)ALT754, AIR 2001 ANDHRA PRADESH 57, (2000) 5 ANDHLD 733 (2000) 5 ANDH LT 754, (2000) 5 ANDH LT 754
ORDER
1. The seven Post-Graduate students of ENT of Gandhi Medical College (GMC), Hyderabad, are the petitioners. They seek a declaration that the theory and practical examinations of the second petitioner in MS and the first petitioner in Diploma in Otolaryngology (DLO) held in May, 2000, as vitiated by bias and malice and for a direction to respondents 1 to 3 to send the theory papers of petitioners 1 and 2 for revaluation to an independent examiner and for a further direction to conduct practical re-examination to petitioners to petitioners 1 and 2, without the fifth respondent as examiner. The first and second respondents are N.T.R University of Health Sciences and its Vice-Chancellor respectively. The third and fourth respondents are the Director of Medical Education (DME) and the State of Andhra Pradesh respectively and the fifth respondent is Professor and Head of the Department of ENT, GMC, who is impleaded in personal capacity.
2. Petitioners 2, 3, 6 and 7 are the students of M.S. in E.N.T." Petitioners 1,4, and 5 are students of DLO. The fifth respondent joined GMC as Professor in September, 1999. He threatened the students that he will fail the students in the final examination if they disobey to serve him by attending to his personal work. It is also alleged that the fifth respondent did not allow the students to see the patients and always abused them. This unpleasant teacher-student relationship in Post-Graduate Medical Course reached its unfortunate end.
3. The petitioners went on strike on 12-9-1999. They protested against the conduct and action of the fifth respondent. The problem snowballed and other interns and Post-Graduate students joined the strike. The agitation was called off after ten days. The DME convened a meeting and assured the petitioners that all of them would be withdrawn from ENT unit of CMC and would be transferred to some other hospital where the fifth respondent will not be posted as teacher/examiner. Accordingly, the DME issued proceedings in Rc.No.Spl/99 dated 22-9-1999 by which the Principal of the College was advised to depute Post-Graduate students of ENT unit to the existing blue unit of Osmania University Medical College (OMC) in Government ENT Hospital, Koti, Hyderabad, on a permanent basis till the fifth respondenl remains posted as Professor in CMC College/ Hospital. The Principal then issued consequential orders on 22-9-1999 transferring the petitioners 1,3, 4 and 6 to Government ENT Hospital, Koti, Hydeabad. The petitioners were under professorship of Dr. N. Radha Krishna of blue unit of OMC and Dr. M.V. Satyanarayana Rao, Professor of red unit of GMC in Government ENT Hospital.
4. The final examinations - for M.S., students after three years study and for DLO students after two years study - were held from 8-5-2000 to 15-5-2000. Petitioners 1 and 2 appeared for M.S. The practical examinations were held on 18-5-2000 for M.S. and diploma courses. Dr. M.V. Satyanarayana, retired Professor of GMC, and Dr. K. Dwarakanath, Professor of OMC, besides two external examiners - from Chennai in Tamilnadu and from Kolar in Karnataka, were examiners. The petitioners were surprised to know that the fifth respondent was posted as Chief-Examiner. But, still petitioners I and 2 appeared for the examinations. The petitioners allege that though the practical examinations were to be held as per schedule for students of OMC and GMC, at the instance of the fifth respondent the practical examination centur was shifted to Gandhi Hospital. During the practical examination, it is alleged that, the fifth respondent prevailed over the external examiners and petitioners 1 and 2 were awarded very low grades in theory papers. They were declared failed. The petitioners submitted representations on 24-5-2000 followed by reminders on 31-5-2000 to the fourth respondent, in vain. Hence, they approached this Court.
5. The matter was heard on 23-6-2000 on preliminary issues. When the matter was again listed on 27-6-2000, the learned Counsel for the petitioner filed an affidavit given by Dr. M. V. Satyanarayana Rao, who was one of the internal examiners for M.S./D.L.O. examination held in May, 2000. Claiming to be conscientious teacher he swears to the affidavit that the chief-examiner had definite bias against petitioners 1 and 2 and that he signed (presumably the valuation seat ) under compulsion and duress exerted upon him. He also states that he also gave statement before the Vice-Chancellor.
6. The learned Counsel for the petitioners, with vehemence, submits that the entire examination of final year MS/ DLO is vitiated by bias and this Court should intervene and judicially review May, 2000 examination result. He also urges that contrary to the proceedings of the DME dated 22-9-1999 the fifth respondent was appointed as Chief-Examiner and therefore the entire action is unfair. The learned Counsel also submits that as the petitioners made allegations of bias and malice on the part of the fifth respondent, the Court may consider the grievance after issuing notice to the respondents. The learned Counsel has relied on the decisions of the Supreme Court in D.D. Suri v. A.K. Barren, , J.P. Kulshrestha v. Allahabad University, , Shivajirao Nilangekar Pali! v. Maahesh Madhav Gosavi, and Yadavindra Public School Association v. Stale of Punjab, . The learned Counsel also relied on the Division Bench judgments of this Court in Dr. 1. Prakash Kumar v. The University of Health Sciences, Vijayawada, (DB) and G.S. Ravi Kiran v. Board of Secondary Education, (DB).
7. To appreciate the submission of the learned Counsel for the petitioners one need to, at the out set, seek answer to the question while conducting examination at the end of educational course and awarding degrees/diplomas in proof of successful completion of the course whether the university performs judicial function, quasi-judicial function or administrative function. The examining body or board of examiners or an individual examiner/evaluator certainly does not perform judicial functions. It is doubtful whether the Board of Examiners performs quasi-judicial function while evaluating the examination papers and declaring the results. Thus, when the knowledge of a student after completion of the course is tested by the examiners which results in awarding of pass certificate the function is akin to that of a selection committee selecting an eligible, suitable and meritorious candidate for being appointed to a job. The Board of Examiners, therefore, performs an administrative function leading to an administrative decision. The fact that the examiners are not under legal obligation to give reasons as to how they evaluated the papers in certain manner lends support to such view. It is settled that administrative authority is under no legal obligation to record reasons in support of its devision and that the only requirement is that the administrative authority should follow 'Fairness or fair' procedure. (See National Institute of Menial Health v. Kalyana Roman, ), Therefore, it there is a lone examiner and he acts with proven malice or bias in a given case the same can be challenged before appropriate university authority. But, in my considered opinion when a body of persons takes a decision resulting in 'collectively of opinion', the aggrieved person cannot complain bias or malice. That is to say ordinarily it cannot be heard that the Board of Examiners acted with bias or malice.
8. Another aspect of judicial review on the ground of bias is that bias resulting from malice in fact can be waived. A person, who waives bias, is estopped from challenging the action in a Court of law. In 'service jurisprudence' it is well settled that a prospective selectee who knowingly appears before the selection committee is seldom permitted to complain that one of the members of the selection committee is biased and hence selection is vitiated. In my considered opinion, there cannot be any objection to import the same principles in the case of evaluation of answer scripts by a board of examiners. In G. Sarana v. Lucknow University, AIR 1992 SC 1886 after referring to Manaklal v. Prem Chand, , A.K. Kraipak v. Union of India, and S. Parthasarathi v. State of Andhra Pradesh, , the Supreme Court held that a candidate, who knowingly voluntarily appears before the selection board cannot be heard to complain against the selection board. The observations and the law declared by the Supreme Court, which are apt for the purpose, are as under:
"......In a group deliberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge.
His bias is likely to operate in a subtle manner......We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likehood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee.
9. The petitioners admittedly knew that the fifth respondent is the Chief-Examiner. They did not object though before that date they had already gone on agitation against the fifth respondent. They voluntarily appeared in practical and viva voce before the Board of Examiners, which included two external examiners including the Chief-Examiner. The decision resulting in the declaration of results is collective decision, which cannot be challenged on the ground of bias. Be that as it may, having appeared before the Board of Examiners, including the fifth examiner without demur, the petitioners cannot be allowed to complain bias and malice in MS/DLO examinations.
10. The reliance placed by the learned Counsel for the petitioner on the communication dated 22-9-1999 to the effect that there was an assurance by the DME that the students of GMC would be deputed to Government ENT hospital as long as fifth respondent works in GMC and that the fifth respondent shall not be posted as examiner is misconceived. The DME is not the competent authority to appoint examiners as per Regulations of the Medical Council of India, which is the Apex body to maintain the standards of medical education and recognise degrees and diplomas. In their recommendations for appointment of Post-Graduate examiners it made compulsory for the University to appoint Head of the Department as one of the examiners. It is only the University, which is competent to appoint the examiners, and DME is not competent to appoint examiners for P.O. examinations. Therefore, the communication of the DME is of no avail to the petitioners.
11. Further, it is well settled that a Court of judicial review should respect the decisions of academic bodies. All decisions of the universities and other academic bodies are not justiciable except the decisions which require interpretation of provisions of law and where the academic bodies do not adhere to rule of law. In view of this, judgments cited by the learned Counsel for the petitioner, which are considered by me, do not help. It is, however, open to the first and fourth respondents to consider the representations of the petitioners in the light of the provisions of the University of Health Sciences Act, 1986 without being influenced by any of the observations made herein above.
12. In the result, he writ petition fails and the same is dismissed at the admission stage. There shall be no order as to costs.