Madras High Court
The Tamilnadu Dr.M.G.R.Medical vs Dr.R.Devika on 5 November, 2013
Bench: N.Paul Vasanthakumar, R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.11.2013
CORAM
THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
W.A. NO.54 OF 2010
1.The Tamilnadu Dr.M.G.R.Medical
University,
Rep.by its Registrar,
Post Bag No.1200,
No.69, Anna Salai, Guindy,
Chennai 600 032.
2.The Controller of Examinations,
The Tamilnadu Dr.M.G.R.Medical
University,
Post Bag No.1200,
No.69, Anna Salai, Guindy,
Chennai 600 032. .. Appellants
Versus
1.Dr.R.Devika
2.The Dean,
Stanley Medical College,
Chennai 600 001. .. Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent to set aside the order of the learned single Judge dated 30.10.2009 in W.P.No.23203 of 2007.
For Appellants : Shri.Sanjay Ramasamy
Standing Counsel
For Respondent-1 : Shri.V.Gouardhanan
for Row & Reddy
For Respondent-2 : Shri.R.Ravichandran
Additional Government Pleader
* * * * *
J U D G M E N T
(JUDGMENT OF THE COURT WAS DELIVERED BY N.PAULVASANTHAKUMAR, J The Writ Appeal is filed against the order made in W.P.No.23203 of 2007 dated 30.10.2009, wherein the first respondent has challenged the order of the Tamil Nadu Dr.M.G.R.Medical University dated 16.02.2007 and prayed for a direction to issue a revised mark sheet by disclosing the marks secured under the sub-heads of practicals, namely, Slide / Specimen / Chart / X-ray Scan / Instrument, for which, (5 x 5) marks are separately allotted, and declare the first respondent as passed in the M.D. (Obstetrics & Gynaecology), Part-II examination, if the first respondent had secured an aggregate of 350 out of 700 on adding those marks under the sub-heads of practicals. The said Writ Petition was allowed by the learned single Judge, for which, the University has filed this Writ Appeal under Clause 15 of Letters Patent.
2.The case of the first respondent before the learned single Judge was that she appeared for M.D. (Obstetrics & Gynaecology) examination held in March 1998 with register No.512 at the Stanley Medical College, Chennai 1. As per the Regulations framed by the University for conducting M.D. (Obstetrics & Gynaecology) examination among other heads practical consists of the following :
Slide / Specimen / Chart / X-ray Scan / Instrument (Each .(5) .(5) .(5) .(5) .(5) 5 Marks) 25 Oral ....75
Total 100
3.After declaration of the examination results in June 1998, the first respondent having not satisfied with the marks awarded in practicals for Paper-II, applied for retotalling on 29.06.1998, for which, a reply was given by the University on 16.07.1998 stating that there is no change in the results after retotalling. Again on 28.09.1998, the first respondent prayed for awarding grace marks, as she required only four marks and the University has power to award grace marks upto 5, if the candidate failed only in one paper in the whole examinations. On 22.03.1999, another representation was submitted to the University by stating that even split-up marks for dissertation & oral and practical & oral may be informed to her, for which, no reply was given. Therefore the first respondent filed W.P.No.20299 of 1999 before this Court praying for a direction to the appellants i.e., the University to retotal the marks of the first respondent in respect of practicals & Dissertation bearing Registration No.512 in Part-II M.D. (Obstetrics & Gynaecology) examination, held in March 1998 and issue fresh mark sheet.
4.In the said Writ Petition, a counter affidavit was filed on behalf of the University stating that the first respondent secured the following marks in the said paper:
Total in Theory - 153 Clinical - 100 Practical (or) Oral - 42 Dissertation - 38 Oral on Dissertation - 13 Grand Total - 346 According to the University Regulation, 350 out of 700 total is a minimum required mark to declare a person as pass. It is further stated in the counter affidavit that it is not the mistake of the Examiner or the University to make one candidate fail throughout, if he/she fails once and in the subsequent examination also, and the first respondent failed to get the minimum marks to declare her as successful.
5.The first respondent appeared for the subsequent examination by specifically sending a representation on 05.02.2000 stating that without prejudice to her right in the Writ Petition pending before this Court. The Writ Petition was dismissed by this Court on 25.09.2001. Against the said order, the first respondent filed W.A.No.2378 of 2001 and the said Writ Appeal was disposed on 11.08.2006 by stating that "the grievance expressed by the first respondent cannot be gone into by the Division Bench of this Court. However, the first respondent is permitted to make a representation highlighting her grievance to the appellants. If any such representation is made, the appellants are directed to consider and dispose of the same, if the same is permissible in law, expeditiously".
6.After the said liberty was granted by the Division Bench, on 05.10.2006, the first respondent submitted a representation stating that no separate mark was given as per the University Regulation in practicals i.e. no separate mark for 25 and separate mark for 75 was given and requested the University to issue revised mark sheet by including the marks under the sub-heads of Practicals, namely, Slide / Specimen / Chart / X-ray Scan / Instrument and declare the first respondent as pass in M.D. (Obstetrics & Gynaecology) Part-II examination. A reminder was also sent on 12.01.2007. The University gave a reply to the said representation on 16.02.2007 stating that the marks under practicals are being awarded by four examiners and accordingly marks were awarded by the four examiners in toto, and not in separate heads. This is the pattern of the mark sheet issued from 1993-94 onwards. Same type of mark sheets were issued for the other candidates also.
7.The first respondent having not satisfied with the reply, again filed W.P.No.23203 of 2007 before this Court mainly contending that in respect of her repeated representation from 1998 to disclose the marks awarded under the head 25 which are to be awarded under the sub-heads of Practicals, viz., Slide / Specimen / Chart / X-ray Scan / Instrument, neither the College nor the University is willing to give a proper explanation and if four marks are awarded under the above heads out of 25, the first respondent will definitely cross the minimum pass marks i.e. 350 out of 700.
8.The second respondent has filed a counter affidavit in the said Writ Petition reiterating the stand taken in the impugned order dated 16.02.2007 and the crux of the contention of the University is that from 1993-94 onwards marks are awarded lump sum and no separate mark need be awarded under each head i.e. 25 and 75 and this is the pattern being followed to all the candidates.
9.The Dean of the Stanley Medical College has also filed a counter affidavit stating that the Examiners will be appointed only by the Tamil Nadu Dr.M.G.R.Medical University from among the Associate Professors / Professors, who are working in the Government Medical College. The role of Convener is only to conduct the examination, (i.e) practical examination with Examiners and after completing the examinations, they will sent the marks / report by themselves in a sealed cover to the Tamilnadu Dr.M.G.R. Medical University in person. No single entry / particular is available in the Office of the Dean regarding the marks which the first respondent had secured. Therefore, the College is not in a position to produce such unavailable records before this Court.
10.The learned single Judge after considering the rival submissions allowed the Writ Petition, with a direction to the University to permit the first respondent to appear for the practical examination for those sub-heads of practicals, namely, Slide / Specimen / Chart / X-ray Scan / Instrument and whatever the marks she secures in the practical examination to be held shall be added to the marks which she had already secured in March 1998 examination and the University shall declare the result of the first respondent.
11.The learned counsel for the first respondent submitted that the order of the learned single Judge giving direction to conduct re-examination for assessing the practicals alone, under sub-heads, namely, Slide / Specimen / Chart / X-ray Scan / Instrument, for which, 5 marks each awarded is wrong as it is the consistent stand of the University that 42 marks awarded to the first respondent in March 1998 includes the marks awarded to the above said heads also. Hence, if separate examination for practicals is to be ordered, the first respondent has to appear for the whole practical examination for Part-II including Oral. The learned counsel further submitted that the examination pattern having been modified from 1993-94 in respect of award of marks, examiners were justified in awarding lump sum marks together for 100 instead of awarding separate marks for 25 and 75 in different heads.
12.The learned counsel for the University on the other hand submitted that the examination pattern modified upto the year 1998, (a copy of which was also filed in the typed set of papers), namely, Regulations of the Tamil Nadu Dr.M.G.R.Medical University Chennai (Modified upto 30th September 1999) clearly states that 25 marks are to be awarded under the sub-heads of Practicals, namely, Slide / Specimen / Chart / X-ray Scan / Instrument and 75 marks are to be awarded in Oral and total marks in practicals i.e. 25 + 75 should be 100. The learned counsel further submitted that the first respondent is willing to appear for the practical examination in Part-II. He also submitted that if the first respondent is able to secure four marks i.e. 46 in practicals, she should be declared as pass in M.D. (Obstetrics & Gynaecology).
13.The learned counsel for the University relied on the judgment of the Hon'ble Supreme Court reported in 1997 SCC (L&S) 1029 [RAJ KUMAR & OTHERS v. SHAKTI RAJ & OTHERS], wherein it is held that awarding of lump sum mark to each candidate without awarding marks in separate head was illegal and the said ratio laid down in the said judgment can be equally applied to the facts of this case. The learned counsel has also relied on the judgment rendered by one of us (NPVJ) in the decision reported in (2011) 8 MLJ 995 [R.GEETHA vs. DR.M.G.R.MEDICAL UNIVERSITY], wherein this Court ordered to conduct re-examination to the petitioner therein by appointing qualified Internal Examiners, in respect of practical and viva-voce alone as per Medical Council of India Regulation and the said order was implemented by the appellant University.
14.We have considered the rival submissions made by the respective counsels.
15.The point in issue as to whether the order of the learned single Judge in ordering practical re-examination to the first respondent is justified or not.
16.In the order of the University dated 16.02.2007 it is stated that the University followed the practice of awarding lump sum marks in practicals including oral. The Regulation framed by the University (Modified upto 30th September 1999) clearly states that 5 marks each has to be awarded under the sub-heads of Practicals, namely, Slide / Specimen / Chart / X-ray Scan / Instrument, that means 25 marks are to be awarded under 5 sub-heads and the marks for Oral is 75, making total marks as 100. The said procedure as per the Examination Regulation has not been admittedly followed in the matter of the first respondent, who is before this Court. Awarding separate marks to each head as stated above i.e. 5 x 5 total 25 and the marks awarded to practicals is 42, which is a lump sum out of 100 marks. The learned single Judge is justified in finding fault with the award of marks as it is violation of the University Examination Regulation (Modified upto 30th September 1999).
17.The award of itemwise marks is mandatory or not was considered by the Hon'ble Supreme Court in the decision reported in 1997 SCC (L&S) 1029 [RAJ KUMAR & OTHERS v. SHAKTI RAJ & OTHERS]. In the said judgment, it is held that the maximum marks prescribed for academic qualification-25%; written examination-25%, Sports-5%, experience-10%; extra-curricular activities-5% and viva voce-30%. However, instead of awarding marks itemwise, the Selection Committee awarding marks to each candidate in a lump sum is not justified. The said separate head are given to avoid arbitrary awarding of marks to the candidates by Examiners.
18.The conducting of University examination and valuation strictly in accordance with the examination regulations by examiners is emphasized by the Hon'ble Supreme Court in the decision reported in PRESIDENT BOARD OF SECONDARY EDUCATION, ORISSA & ANOTHER vs. D.SUVANKAR & ANOTHER [(2007) 1 SCC 603]. In Paragraphs 6 and 8, it is held thus:
"6.Award of marks by an examiner is to be fair, and considering the fact that revaluation 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 revaluation cannot be a shield for the Examiner to arbitrarily evaluate the answer script. That would be against the very concept for which revaluation is impermissible.
8.It has to be ensured that the Examiners who make the valuation 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 valuation and they should really 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. ........"
19.Applying the above cited judgment to the facts of this case, we are in agreement of the order passed by the learned single Judge in so far as conducting fresh practical examination alone is upheld. With regard to the stand of the University that 42 marks are awarded out of 100 (25 + 75 = 100), we are unable to approve the reasoning given by the learned single Judge to conduct practical examination only for 75 marks (sub-heads) without oral (25 marks). Hence the order of the learned single Judge is modified, with a direction to the appellant University to conduct the practical Part-II M.D. (Obstetrics & Gynaecology) to the first respondent bearing Registration No.512, as stipulated in the then existed Examination Regulations of the appellant University by awarding appropriate marks under each sub-heads of Practicals, namely, Slide 5 / Specimen 5 / Chart 5 / X-ray Scan 5/ Instrument 5, total 25 and orals 75. If the first respondent is getting 46 or above marks, the appellant University is directed to declare that the first respondent has passed in M.D. (Obstetrics & Gynaecology) degree in June 1998. The University is further directed to conduct the said practical examination as directed above, within a period of four weeks from the date of receipt of a copy of this order.
20.The Writ Appeal is disposed of with the above direction. No costs.
(N.P.V.,J.) (R.M.D.,J.) 05.11.2013 Index : Yes Internet : Yes Note : Issue Order Copy on 11.11.2013 sri N.PAUL VASANTHAKUMAR, J. AND R.MAHADEVAN, J. sri To 1.The Registrar, Tamilnadu Dr.M.G.R.Medical University, Post Bag No.1200, No.69, Anna Salai, Guindy, Chennai 600 032. 2.The Controller of Examinations, The Tamilnadu Dr.M.G.R.Medical University, Post Bag No.1200, No.69, Anna Salai, Guindy, Chennai 600 032. 3.The Dean, Stanley Medical College, Chennai 600 001. W.A. NO.54 OF 2010 05.11.2013