Madras High Court
C.Jagadiswaran vs Vce-Chancellor on 1 April, 2014
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.04.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Petition (MD)No.172 of 2014 C.Jagadiswaran ... Petitioner Vs Vce-Chancellor, The Tamil Nadu Dr.M.G.R.Medical University, 60, Annasalai, Guindy, Chennai-600 032. ... Respondent Writ petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus, directing the respondent to re- evaluate the answer sheet of subjects Marthuvva Thavaraiyal bearing subject code 601125, Gunapadam-II (Thathuvilanginam) Paper II bearing subject code 601129 and Nunnuyir Iyal (Microbiology) bearing subject code 601131 in the academic course (Bachelor of Siddha Medicine and Surgery) pursued by the petitioner in the examination held on August-213, conducted by the respondent, within a time frame. !For Petitioner ... Mr.A.Velan for M/s.Ajmal Associates. ^For Respondent ... Mr.C.Karthick :ORDER
V.RAMASUBRAMANIAN,J The petitioner has come up with the above writ petition, seeking the issue of a writ of mandamus to direct the respondent University to re-evaluate his answer sheets in three subjects, in the Bachelor's Degree course in Siddha Medicine and Surgery.
2.When the writ petition came up before M.M.Sundresh,J, for orders as to admission, the learned counsel appearing for the petitioner and the respondent relied upon several decisions on the question as to whether a student has a right to seek revaluation in the absence of a rule to that effect. Finding that there are lot of decisions on the issue and also finding that the issue raised in the writ petition requires a detailed consideration, the learned Judge referred the matter to the Division Bench.
3.It should be pointed out at the outset that the reference to the Division Bench has been made, not on account of any conflicting decisions by Benches of co-ordinate jurisdiction, but the reference had been made, only in view of the importance of the issue raised.
4.We have heard Mr.A.Velan, learned counsel for the petitioner and Mr.C.Karthick, learned counsel for the respondent.
5.The facts leading to the present writ petition, in brief, are as follows:
(a)The petitioner joined the Bachelor's Degree Course in Siddha Medicine and Surgery in a college affiliated to the respondent University. The petitioner appeared for the 3rd Year examination in August, 2013. When the results were published on 07.10.2013, it was indicated that the petitioner had failed in three subjects.
(b)The petitioner applied for copies of his answer sheets on 09.10.2013.
Since the copies were not furnished, he applied under the Right to Information Act. Thereafter, the answer sheets in the three papers in which he was declared failed were furnished to the petitioner on 22.11.2013.
(c)The copies of the answer sheets were taken by the petitioner to one Mr.S.Sukumaran, said to be an Assistant Professor in the Department of Botany in Nesamony Memorial Christian College and to another person by name Mrs.J.Shabeena Merrin, Principal and Professor in the Department of Micro Biology, Vivek Institute of Laboratory Medicine. According to the petitioner, the experts to whom he took his answer sheets awarded 65 out of 100 marks in one paper and 79 out of 100 marks in another paper. In the University Examination, the petitioner was awarded only 35 marks in one paper and 22 marks in the other paper.
(d)Since the petitioner required a pass in 4 out of 6 subjects, for getting promoted to the 4th year and also since he was declared to have failed in three papers, the petitioner made a representation for revaluation. Realising that there is no provision in the Rules, the petitioner came up with the above writ petition, seeking the issue of a writ of mandamus to direct the respondent to re-evaluate his answer sheets in three papers, namely Marthuvva Thavara Iyal (Medical Botany), Gunapadam-II and Nunnuyir Iyal (Micro Biology).
6.The respondent has filed a counter affidavit contending inter alia that the petitioner appeared in the 3rd year B.S.M.S. Examination in August, 2013 and wrote seven papers. Out of seven subjects, he passed in four subjects and failed in three subjects. The University originally had a provision for revaluation. But the same was withdrawn. The withdrawal of the provision for revaluation was challenged by a student by name P.Archana Meenakshi inW.P.No.12021 of 2012. But, the writ petition was dismissed by a Division Bench of this Court. Therefore, the decision of the University to delete the provision for revaluation, has received a seal of approval. In the absence of any provision for revaluation, the petitioner is not entitled to seek revaluation.
7.From the rival pleadings, it is clear that as on date there is no provision in the Regulations of the respondent University for revaluation. The regulation that was in force earlier, was withdrawn in the 36th Meeting of the Standing Academic Board. The said decision was upheld by this Court, by a decision dated 26.04.2012.
8.Therefore, the short question that arises for consideration is as to whether in the absence of a provision for revaluation, a student can seek revaluation of an answer paper or not.
9.Mr.A.Velan, learned counsel for the petitioner contended, with all the persuasive skills at his command that the bright career of a student should not be thrown at the mercy of persons who evaluate answer papers, without due care and digilence. The learned counsel submitted that with the falling standards in the field of education, the marks scored by a candidate in an examination depends mostly upon his luck and not upon the quality of answers. Therefore, the learned counsel pleaded that this Court should provide some leverage for students who suffer genuinely at the hands of examiners who act in a whimsical manner.
10.In support of his contention, the learned counsel for the petitioner relied upon several decisions, each one of which we shall now consider.
(a)In President, Board of Secondary Education vs. D.Suvankar - (2007) 1 SCC 603, the Supreme Court pointed out that it would be wholly wrong for a Court to adopt a purely pedantic and idealistic approach to the problems of this nature, isolated from the actual realities and grass-root problems in the working of the system. The Supreme Court cautioned that award of marks by an Examiner has to be fair and that the examiner should be careful, cautious and should ensure that the answers are properly evaluated whenever revaluation is not permissible.
(b)The decision of the Supreme Court in D.Suvankar was extracted and followed by a Division Bench of this Court in State of Tamil Nadu v. J.Amirtha, in a decision dated 29.08.2013.
(c)In B.C.Chaturvedi vs. Union of India - (1995) 6 SCC 749, the Supreme Court held that the mere fact that there is no provision parallel to Article 142, cannot be a ground for the High Court to think that they cannot do complete justice.
(d)In Pranshu Indurkhya v. State of M.P. - AIR 2005 M.P.152, a Division Bench of the Madhya Pradesh High Court summarised the principles to be applied in the case of revaluation, in paragraph 7, as follows:
"7.The principles in regard to revaluation may therefore be summarised thus:
(a)A student has no right to seek revaluation of an answer-script unless the rules governing the examination specifically provide the revaluation. A provision for 'scrutiny' or 'retotalling' of marks or 'rechecking the results' in the Rules does not entitle a student to seek re-valuation.
(b)Where the rule 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 mala fides 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.
(c)Ascertainment of mala fides and tampering depends on facts of the case and for that purpose, if necessary, the answer script may be summoned.
(d)Ascertainment of "gross negligence resulting in injustice" is a more difficult exercise. A student who has consistently secured very high marks in a subject in the last few years examinations, is shown to have failed in such subject, the Court may consider it to be prima facie evidence of such negligence and call for the answer-scripts. (The mere fact that a student feels that he deserved more marks or alleges negligence, cannot be ground to call for answer scripts). On securing the answer-script, the Court may examine it or take the assistance of a qualified teacher to examine it. If the Court finds any gross negligence resulting in injustice which shocks its judicial conscience, it may direct re-valuation.
(e)But change in marks on account of perceptional differences in assessment cannot be a ground for re-valuation. Different examiners may evaluate the same answers differently resulting in lesser or higher marks being awarded. Re-valuation is not to be ordered merely because another valuer is of the view that the marks should have been different. In traditional examinations where the purpose is to test the knowledge, grammar, logic or reasoning, the perceptions about the answers may vary from examiner to examiner. (Of course where the examination is of objective type, where the student is merely to mark 'yes' or 'no', or choose one of the multiple answers, there cannot be any difference in valuation).
(f)While fairness in examinations is impliedly assured by the Board, exactness in valuation in individual cases can neither be assured nor be claimed. Certain margin of human error, over-sight, and perceptional difference s part of the valuation system, where thousands or lacs of answer scripts are evaluated by hundreds or thousands of evaluators. Therefore, even where the Court secures the answer script and examines it or gets it examined by an independent teachers, re-valuation should not be ordered merely because there is some difference in valuation or because one or two answers have not been valued or have been wrongly valued. To repeat, mala fides tampering or gross negligence (and not small or negligible errors or perceptional changes) is a condition precedent for ordering re-valuation."
(e)The decision in Pranshu Indurkhya was again followed by another Division Bench of the Madhya Pradesh High Court in Priyanka Prandey vs. Secretary, Board of Secondary Education - AIR 2007 MP 235.
(f)in Asha vs. B.D.Sharma University - (2012) 7 SCC 389, the Supreme Court highlighted the importance of the rule of merit and cautioned that it cannot be compromised. Therefore, the contention of the learned counsel for the petitioner is that without a proper valuation, the merit will become the first casualty.
(g)In A.Sivaranjani vs. The Tamil Nadu Dr.M.G.R.Medical University, a Division Bench of this Court, following the decision of the Supreme Court in H.P.Public Service Commission vs. Mukesh Thakur - (2010) 5 MLJ 746 and various other decisions, held that in the absence of any provision under the statute or regulations, the Court should not generally direct revaluation.
(h) In K.Perumal v. Joint Director - (2009) 7 MLJ 1149, a learned Judge rejected the prayer for revaluation only on the ground that sufficient cause was not shown by the petitioner. Therefore, the learned counsel contends that whenever sufficient cause is shown, this Court has power to grant the relief of revaluation.
(i)In Sanjay Singh vs. U.P.Public Service Commission - AIR 2007 SC 950, the Supreme Court emphasised the need for uniformity and consistency in the valuation of answer scripts, when a large number of candidates appear for an examination. In paragraph 23, the Supreme Court held as follows:
"23.When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer-scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer-scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is 'Hawk-Dove' effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer- script. In other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter-se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. ..."
(j)In Sahiti vs. Chancellor, Dr.N.T.R.University - AIR 2009 SC 879, the Supreme Court held that revaluation of answer sheets in the absence of a specific provision is perfectly legal and permissible. Therefore, the Court held that once a decision is taken by the Chancellor to order revaluation, the same cannot be challenged. In the same judgment, the Supreme Court also highlighted that award of marks by an examiner has to be fair.
(k)In H.P.Public Service Commission vs. Mukesh Thakur - (2010) 5 MLJ 746 (which was relied upon by the Division Bench of this Court in A.Sivaranjani), the Supreme Court held that it was not permissible for the High Court to examine the question paper and the answer sheets. However, on the question of revaluation, the Supreme Court pointed out in paragraph 24 of the Report that the issue is already covered by the decision in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth - AIR 1984 SC 1543.
(l)In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission - (2004) 6 SCC 714, the Supreme Court followed the decision in Maharashtra State Board and held that in the absence of any provision for revaluation of answer books in the relevant rules, no candidate has a right whatsoever to claim or ask for revaluation of his answer papers. The Court held that a prayer for revaluation is wholly untenable.
11.Based upon the ratio laid down in the aforesaid decisions, it is contended by Mr.A.Velan, learned counsel for the petitioner that there is a distinction between cases where the examination in question is a qualifying examination and cases where the examination in question is a competitive examination. Coupled with the fact that the Supreme Court repeatedly emphasised the need for uniformity and a fair valuation in all examinations, it is necessary, according to the learned counsel for the petitioner, that in qualifying examinations there must be a check on arbitrary valuation. It is possible only when there is a provision for revaluation. Therefore, he pleaded that even in the absence of a provision for revaluation, the Court is entitled to order revaluation in appropriate cases.
12.In response to the above contentions, Mr.C.Karthick, learned counsel for the respondent University contended that both this Court and the Supreme Court have consistently taken the view that there cannot be a direction for revaluation in the absence of any provision. After the existing provision was deleted and after it was upheld by this Court, there is no scope for the petitioner to re-agitate the issue. In any case, the learned counsel for the respondent University contends that the case of the petitioner is not one where this Court can exercise any discretion. According to the respondent, the academic record of the petitioner is not so good as to convince this Court to exercise any discretion. According to the respondent University, the petitioner has had a poor academic record. Therefore, the learned counsel for the respondent contended that there is no scope even for any sympathetic consideration.
13.We have carefully considered the above submissions.
14.At the outset, the parties are ad idem on one thing, namely, that there was a provision for revaluation earlier and that the same was scrapped. The decision to scrap the provision was upheld by the Division Bench of this Court. Therefore, it is clear that the petitioner cannot stake his claim upon any statutory provision. Keeping in mind the above, let us now have a critical analysis of the decisions relied upon by the petitioner.
15.In President, Board of Secondary Education, the Supreme Court was concerned with a judgment of the Division Bench of the Orissa High Court, which held that there was no provision for revaluation. However, the Division Bench had awarded costs of Rs.20,000/- for providing a wrong mark to the candidate. It is in such a context that the Division Bench awarded costs. The Supreme Court merely modified the said order. But, on the principle that there can be no revaluation in the absence of a statutory provision, the Supreme Court did not take a different view.
16.The decision of the Division Bench of the Madhya Pradesh High Court in Pranshu Indurkhya also did not say that the High Court could direct revaluation of answer sheet even in the absence of a rule. All that the Division Bench of the Madhya Pradesh High Court said was that in rare and exceptional cases where malafides or where injustice has been caused on account of gross negligence, the Court may order revaluation. Even on the question as to what constitutes gross negligence resulting injustice, the Division Bench clarified that a student, who complains of the same, should have had consistently high academic record. Both are absent in the case on hand.
17.In Sivaranjani, a person pursuing the 4th Year of M.B.B.S. Course sought a direction for revaluation. But, the said prayer was rejected by the Supreme Court following the decision in H.P.Public Service Commission vs. Mukesh Thakur - (2010) 5 MLJ 746 (SC).
18.The decision in H.P.Public Service Commission itself followed the law laid down in Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupesh Kumarsheth and the decision in Pramod Kumar Srivastava. Therefore, we are of the view that the law is clinched in paragraph 19 of the decision of the Supreme Court in H.P.Public Service Commission. It will be useful to extract the said paragraph as follows:
"19.In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent no.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court."
19.In Sanjay Singh relied upon by the learned counsel for the petitioner, the Supreme Court merely highlighted the necessity to have uniformity and consistency in the matter of valuation. Disparity in the matter of valuation by examiners who are liberal and examiners who are strict, was termed as "Hawk-Dove Effect". But, even in this case, the Supreme Court did not lay down a law that there can be revaluation, even in the absence of a provision. The very dispute that arose in Sanjay Singh was with respect to a statistical scaling system adopted by the Allahabad High Court, while evaluating the answer sheets of candidates who appeared for the post of Civil Judges - Junior Division. Therefore, the said decision is of no assistance to the petitioner insofar as the point in issue is concerned.
20.In Sahiti, what was in issue before the Supreme Court was whether the action of the Vice-Chancellor of Dr.N.T.R.University of Health Sciences in ordering re-verification/ revaluation/re-examination of answer scripts of 436 students, was proper or not. It is, in that context, the Supreme Court in Paragraph 32 held that revaluation even in the absence of specific provision is perfectly legal and permissible. But, there is a world of difference between an educational authority ordering revaluation on account of certain large scale irregularities and the right of a person to approach the court and seek a mandamus for directing revaluation. The Court's power to order revaluation especially in matters relating to examinations, is extremely circumscribed. Where the educational authorities, who are experts in the field, themselves are of the opinion that there must be revaluation, this Court would not interfere with such a decision. But, it does not mean that this Court could issue a direction to the University to order revaluation.
21.In the light of the above, we are of the view that that the decision of the Supreme Court in H.P.Public Service Commission, clinches the issue, finally. Hence, we hold that in the absence of any provision for revaluation, a mandamus cannot be issued by this Court, directing the authorities to undertake revaluation. Hence this writ petition is dismissed. No costs.
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