Andhra HC (Pre-Telangana)
Dr. J. Kiran Kumar And Others vs The State Of Andhra Pradesh, Rep. By Its ... on 23 October, 2017
Author: A. Ramalingeswara Rao
Bench: A. Ramalingeswara Rao
THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition Nos.23681 of 2017 and batch
23-10-2017
Dr. J. Kiran Kumar and others . Petitioners
The State of Andhra Pradesh, Rep. by its Secretary, Medical, Health and Family Welfare (E1) Department, Secretariat, Velaga
Counsel for the Petitioners: Sri Kiran Tirumalasetti
Sri Sreenivas Padala
Sri Mangena Sree Rama Rao
Sri K.R. Prabhakar
Sri Raja Reddy Koneti
Counsel for the Respondents : GP for Medical, Health & FW (AP)
GP for Medical, Health & FW (TG)
Sri Taddi Nageswara Rao (SC for
Dr. NTR UHS, AP)
<Gist :
>Head Note :
? Cases referred:
1. 2016 (6) ALT 408
2. 2016 (1) ALT 178
3. (1999) 7 SCC 120
4. 2007 (5) SCJ 280
5. 1995 Law Suit (HP) 164 (D.B)
6. 1986(Supp) SCC 285
7. 1995 (3) SCC 486
8. (2010) 12 SCC 576
9. 2011 (1) SCC 150
10. (2013) 11 SCC 309
11. (2008) 4 SCC 171
12. (2007) 3 SCC 720
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition Nos.23681, 24393, 24394, 24395, 24468, 24558,
26563, 26728, 30422, 30442, 30486, 30790, 30951, 31188 and
31284 of 2017
Common Order:
If we assess todays students as we assessed yesterdays, we rob them of tomorrow
- John Dewey.
Heard learned counsel for the petitioners and learned Standing Counsel appearing for Dr. NTR University of Health Sciences.
The petitioners are students pursuing Post-graduate Medical Degree/Diploma Courses in the Colleges affiliated to the second respondent University. They appeared for the final year examinations conducted in May/June 2017. After the announcement of the results when they were declared to have been failed, the present Writ Petitions are filed challenging the method of digital evaluation and denial of re-totalling of the marks. It appears that most of the candidates paid an amount of Rs.2,000/- for re-totalling, but in view of the digital evaluation the re- totalling was not permitted.
It is the case of the petitioners that the digital evaluation is not evolved in a foolproof manner in spite of the orders of this Court in Dr. P. Kishore Kumar v. State of Andhra Pradesh and in W.P.No.7119 of 2017 and batch dated 04.04.2017. It is their further case that at the time of issuing notification or at the time of issuing Hall tickets they were not put on notice with regard to digital evaluation of their answer scripts and since the said system is not foolproof their failure was the result of such system of evaluation.
Initially, a counter affidavit was filed by the Registrar stating that the digital valuation was introduced for the P.G Degree/Diploma examinations held in May/June 2016. The pilot project was initially entrusted to M/s. Globarena Technologies Private Limited, Hyderabad which has done online valuation of 84 scripts during October 2015 P.G. examinations as pilot project on experimental basis and the Professors who valued the scripts expressed their satisfaction on online valuation and opined that online valuation is beneficial when compared to OMR filling and it is a time saving process. As per the existing practice, after completion of the examinations, the answer scripts are received by the University from the Colleges. After completion of tearing work, the scripts are handed over to the said agency for scanning work. After scanning the answer scripts, they were sent to all Medical Colleges through online for digital valuation. The scanning was done by the book scan and not sheet scanning i.e., the OMR answer books and additional answer books are scanned without cutting them into sheets. Before starting digital valuation, instructions and guidelines were issued to the Principals, Camp Officers and Examiners on digital valuation of PG answer scripts. The digital valuation is same as manual valuation as per double valuation regulations. The first valuation was done at the time of practicals and the second valuation was done later. If there is more than 20% difference between the first valuation ad second valuation, the scripts are sent to the third valuation to other examiners who were not involved in the first two valuations. If there is no variation of 20% marks in the first two valuations, the average marks would be taken as marks secured by the candidate. In case of variation after third valuation, the average of the third valuation and the nearest of marks of either first or second valuation to the third valuation will be taken into consideration. The valuing illustration with regard to valuation is given as follows:
1st 2nd 3rd
For eg: 71 51 56 = 107/2 = 53.5 = 54
If the variation among 1st and 2nd valuations is same when compared with 3rd valuation, highest marks out of 1st & 2nd valuation and 3rd valuation marks will be taken into consideration.
1st 2nd 3rd
For eg: 58 34 46 #i.e., 58+46/2 = 104/2 = 52
The said digital valuation was continued for the examinations held in May/June 2017. The students were permitted for re-totalling of their answer scripts by paying an amount of Rs.2,000/-. Since digital valuation was introduced for the examinations held in May/June 2016 and continued in the supplemental examinations held in November 2016, there is no need to notify the students with regard to said valuation in May/June 2017 examinations. The University is giving single booklet consisting of 76 pages with 72 writable pages with page numbers and bar code for answering their questions. After disposal of Dr. P. Kishore Kumars case (supra) by this court, the University took rectification/improvement of the digital valuation, was giving proper training to the valuators and taking care and caution while uploading/scanning the answer scripts. In the instant case, digital valuation was done for the examinations held in May/June 2017 and the results were declared on 04.07.2017.
In view of the above stand and in view of the grievance of the petitioners, this Court asked the Controller of Examinations who was present in the Court along with service provider and he explained the method of digital evaluation of answer sheets. Pending further decision on digital evaluation, this Court permitted the petitioners to verify answer scripts by orders dated 14.09.2017 and 04.10.2017.
Two additional counter affidavits were filed on the directions of this Court, but since those two additional counter affidavits also did not give proper answers to the queries raised by this Court, the Controller of Examinations was directed to be present at the time of final hearing of the matters and accordingly he was present. The additional counter affidavits disclose that 1834 students appeared for the PG Degree examinations and out of them 1555 students passed and 269 students failed in theory, whereas in PG Diploma Course 418 students appeared and out of them 376 students passed and 35 candidates failed in theory. It is also stated that after scanning all the answer scripts by the service provider the same were sent to 28 valuation centers allotted by the University. The University has appointed two external examiners from outside the University/other State and two internal examiners as per Regulation 14 of the Medical Council of India Regulations. The first valuation was done by one external examiner and second valuation by one internal examiner appointed by the University in each centre. In the presence of the service provider, the examiners would decode their login password and enter their own password and open the scanned answer scripts before starting valuation. After completion of valuation of each answer, the first valuator puts marks of each answer in a separate page by using tool of the system, but the said marks sheet is not attached to the original answer scripts and after completion of first valuation by the first valuator the scanned answer scripts would be sent to the second valuator and he would follow the same system. The second valuation system was introduced by the University in the year 2011 by notification dated 08.06.2011 pursuant to the resolution of the Executive Council dated 28.05.2011. If there is variation of marks of 20% or more in the first and second valuation, the same would be referred to the third valuation to be done by the third valuator appointed by the University. During third valuation also the same procedure would be followed. The examiners are qualified and experienced Professors/Associate Professors who worked in their respective Colleges run either by Government or Private Management. While valuing the answer scripts absolute secrecy would be maintained, as the examiner does not know the details of the candidate whose paper he is valuing. It is also stated that except on factual aspects no legal ground was raised by the petitioners for entertaining the Writ Petitions and this Court earlier upheld the practise of digital valuation and appreciated the valuation through online, but it is suggested to rectify the defects. It is also stated that the external examiners have the knowledge of valuation on digital basis already as their respective Universities in the State of Tamil Nadu, State of Karnataka, State of Kerala and State of Maharashtra introduced the digital valuation method.
After verifying the answer sheets, learned counsel appearing for the petitioners pointed out that the scanned copies sent for valuation were not shown to the petitioners but the original answer scripts were shown to them. They further stated that there is drastic variation in the first valuation and in the second valuation as some examiners awarded 0 marks in the first valuation or second valuation, whereas 5 and more marks were awarded by the other valuer. He also stated that earlier the third valuation was done when there was a difference of 15% marks but the criteria of 20% is not known to them. The answer scripts produced before them did not contain the use of tools provided in the software by highlighting the same with any marking. It is also stated that no training was given to the valuators with regard to digital valuation and in digital valuation there is no chance of going back and re-valuing an answer which was wrongly valued earlier. A manual valuation of the answer scripts was done pursuant to the orders of this Court in Dr. P. Kishore Kumars case (supra) and out of 43 candidates whose answer scripts were valued, 28 candidates passed. Thus, there is deficiency in the digital valuation which came out in the manual valuation done after digital valuation.
In the light of the above averments and contentions, this Court heard the learned Standing Counsel as well as the Controller of Examinations who is present in this Court on the points raised by this Court.
Even though the petitioners and their Counsel did not raise certain legal points which are relevant for the purpose of deciding the present batch of cases, in view of the larger public interest involved in the decision affecting Post-graduate students in Medicine, this Court framed the following points for consideration:
1. What is the scope and ambit of Regulation 14 of the Medical Council of India Regulations and whether the said Regulations are binding on the University and whether the University can depart from the same
2. If the Regulations of the Medical Council of India are binding, whether the method adopted by the second respondent University for valuing the answer scripts of the students by two/three examiners either by manual mode or digital mode is valid POINT NO.1:
The terms Evaluation and Assessment frequently have negative connotations for learners engaged in a programme of study. The evaluations and assessments can be strong motivators that channel learner thinking and behaviour, with the potential of adverse consequences for those who fall short. Such learner perceptions contrast with faculty intent, where evaluation is considered a tool needed to boost medical student competence and, for medical educators, to protect the public. Nonetheless, learners often perceive the stakes to be high and evaluation to be a source of anxiety. Evaluation in medical education can have an upside, especially as both learners and teachers acknowledge that the goal is to produce superb clinicians. When educational evaluation data are seen and used as a tool, not as a weapon, the outlook becomes improvement and mastery rather than enforcement. This outlook also changes the psychological climate towards constructive progress instead of apprehension.
The Medical Council of India, in exercise of the power conferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956, framed the regulations called The Postgraduate Medical Education Regulations 2000. The same was published in the Gazette of India on 07th October 2000. As per the said regulations, the Post-graduate Medical Education in broad specialities shall be of three years duration in the case of degree course and two years in the case of Diploma course after MBBS and in the case of super specialities the duration shall be of three years after MD/MS with the exceptions wherever indicated. It is also stated that the curriculum for the Post-graduation shall be competency based and the learning is essentially autonomous and self directed. It is also stated that the training of PG students shall be involved in learning experience derived from or targeted to the needs of the community. The goals and general objectives of the Postgraduate Medical Education Programme to be observed by Postgraduate Teaching Institutions are indicated. The major components of the Postgraduate curriculum as per Regulation 5 shall be as follows:
Theoretical knowledge Practical and clinical skills Writing Thesis/Research articles Attitudes including communication skills Training in Research Methodology, Medical Ethics and Medico Legal aspects.
The regulations provide for nomenclature of Postgraduate courses, selection of students, period of training, departmental training facilities consisting of faculty, minimum requirements, bed strength, out-patient departments, Laboratory facilities, equipment, number of Postgraduate students to be admitted, training programme, examinations etc. In the present case, we are concerned with examinations contained in Regulation 14 (as amended by Notification dated 20.10.2008) and it reads as follows:
14. EXAMINATIONS The examinations shall be organised on the basis of Grading or Marking system to evaluate and to certify candidates level of knowledge, skill and competence at the end of the training.
Obtaining a minimum of 50% marks in Theory as well as Practical separately shall be mandatory for passing examination as a whole. The examination for M.D/M.S, D.M., M.Ch shall be held at the end of 3rd academic year and for Diploma at the end of 2nd academic year. An academic term shall mean six months training period.
(1) EXAMINERS (a) All the Post Graduate Examiners shall be recognised Post
Graduate Teachers holding recognised Post Graduate qualifications in the subject concerned.
(b) for all Post Graduate Examinations, the minimum number of Examiners shall be four, out of which at least two (50%) shall be External Examiners, who shall be invited from other recognised Universities from outside the State. Two sets of internal examiners may be appointed one for M.D/M.S and one for Diploma.
(c) Under exceptional circumstances, examinations may be held with 3 (three) examiners provided two of them are external and Medical Council of India is intimated the justification of such action prior to publication of result for approval. Under no circumstances, result shall be published in such cases without the approval of Medical Council of India.
(d) .(deleted) (e) The examining authorities may follow the guidelines
regarding appointment of examiners given in Appendix-I. (2) Number of Candidates The maximum number of candidates to be examined in Clinical/practical and oral on any day shall not exceed eight for M.D/M.S degree, eight for Diploma and three for D.M/M/Ch examinations.
(3) Number of examinations The university shall conduct not more than two examinations in a year, for any subject, with an interval of not less than 4 and not more than 6 months between the two examinations.
(4) Doctor of Medicine (M.D)/Master of Surgery (M.S) M.D/M.S examinations, in any subject shall consist of Thesis, Theory papers and Clinical/Practical and Oral examinations.
(a) Thesis Every candidate shall carry out work on an assigned research project under the guidance of a recognised Post Graduate Teacher, the result of which shall be written up and submitted in the form of a Thesis.
Work for writing the Thesis is aimed at contributing to the development of a spirit of enquiry, besides exposing the candidate to the techniques of research, critical analysis, acquaintance with the latest advances in medical science and the manner of identifying and consulting available literature. Thesis shall be submitted at least six months before the Theory and Clinical/Practical examination.
The thesis shall be examined by a minimum of three examiners; one internal and two external examiners, who shall not be the examiners for Theory and Clinical examination. A candidate shall be allowed to appear for the Theory and Practical/Clinical examination only after the acceptance of the Thesis by the examiners.
(b) Theory (i) There shall be four theory papers. (ii) Out of these one shall be of Basic Medical Sciences and one shall be of recent advances.
(iii) The theory examinations shall be held well in advance before the Clinical and Practical examination, so that the answer books can be assessed and evaluated before the commencement of the Clinical/Practical and Oral examination.
(c) Clinical/Practical and Oral (i) Clinical examination for the subjects in Clinical
Sciences shall be conducted to test the knowledge and competence of the candidates for undertaking independent work as a specialist/ Teacher, for which candidates shall examine a minimum one long case and two short cases.
(ii) Practical examination for the subjects in Basic Medical Sciences shall be conducted to test the knowledge and competence of the candidates for making valid and relevant observations based on the experimental/Laboratory studies and his ability to perform such studies as are relevant to his subject.
(iii) The Oral examination shall be thorough and shall aim at assessing the candidate knowledge and competence about the subject, investigative procedures, therapeutic technique and other aspects of the speciality, which form a part of the examination.
A candidate shall secure not less than 50% marks in each head of passing which shall include (1) Theory, (2) Practical including clinical and viva voce examination.
II. Doctor of Medicine (D.M)/Magister of Chirurgiae (M.Ch.) The examination consists of: (i) Theory and (ii) Clinical/Practical and Oral.
(a) Theory There shall be four theory papers, one paper out of these shall be on Basic Medical Sciences, and another paper on Recent Advances. The theory examination shall be held in advance before the Clinical and Practical examination, so that the answer books can be assessed and evaluated before the commencement of the Clinical/Practical and Oral examination.
(b) Clinical/Practical and Oral Practical examination may consist of carrying out special investigative techniques for Diagnosis and Therapy. M.Ch candidates shall also be examined in surgical procedures. Oral examination shall be comprehensive enough to test the candidates overall knowledge of the subject.
A candidate shall secure not less than 50% marks in each head of passing which shall include (1) Theory (2) Practical including Clinical and Viva Voce examination.
III. Post Graduate Diploma Diploma examination in any subject shall consist of Theory, Practical/Clinical and Oral.
(a) Theory There shall be three Theory papers, one paper out of these shall be on 'Basic Medical Sciences'. The theory of examination will be held well in advance before the Clinical examination, so that the answer books can be assessed before the commencement of the Practical / Clinical and Viva-Voce examination.
(b) Clinical and Oral Clinical examination for the subject in clinical Science shall be conducted to test /aimed at assessing the knowledge and competence of the candidate for undertaking independent work as a Specialist / Teacher for which a candidate shall examine a minimum of one long case and two short cases.
The oral examination shall be thorough and shall aim at assessing the candidates knowledge and competence about the subject, investigative procedures, therapeutic technique and other aspects of the speciality, which shall from a part of the examination.
The candidate shall secure not less than 50% marks in each head of passing which shall include (1) Theory (2) Practical including clinical and viva voce examinations.
The goal indicated in Regulation 3 proclaims to produce competent specialists and/or Medical teachers who recognize the health needs of the community, carry out professional obligations ethically keeping in view the objectives of the national health policy, mastering most of the competencies pertaining to the speciality that are required to be practiced at the secondary and the tertiary levels, be aware of the contemporary advance and developments in the discipline concerned, acquire a spirit of scientific inquiry, oriented to the principles of research methodology and epidemiology and acquire the basic skills in teaching of the medical and paramedical professionals. These goals are further elaborated as general objectives of Post-graduate training.
In view of the above goals and objectives, it is necessary to evaluate whether the said goals and objectives were achieved or not. In order to do this, there should be objective tools for assessment which are reliable, valid, objective and feasible. The present practise is to award marks to the candidates based on their performance in theory papers and after completion of the practicals. The method adopted is mostly subjective which develop a sense of scare and uncertainty in the Post- graduate medical students. The present batch of cases highlights the deficiencies in the system.
It appears that in the past also there were complaints of improper valuation of answer scripts and in order to improve the standard of evaluation it was proposed in the Board of Studies, Academic Senate and Executive Council and a meeting was held on 03.02.2011 to introduce double valuation system in order to have a transparent method to avoid allegation of students. A committee was constituted to frame the modalities for introducing the double valuation system. The committee accordingly met on 30.04.2011 and recommended the following modalities:
1. To introduce and to implement double valuation for the examination from PG exams April/May 2011 onwards.
2. The average of the 2 valuations computed shall be taken as the FINAL MARKS awarded for that particular manuscript.
3. In double valuation, if the marks awarded show a deviation of 15% of the maximum possible marks for that paper, such manuscripts shall be subjected to 3rd valuation by a new set of Examiners appointed by the University.
4. Of the first two valuation marks, the marks closest to 3rd valuation will be reckoned as the appropriate among the first two. The average of the 3rd valuation marks and the closest marks of the first two valuation shall be the final marks awarded for that particular manuscript.
5. In view of introduction of double valuation and ensuing fair valuation, after announcement of the result, aggrieved students may apply for retotalling to the University after payment of Rs.2000/- per paper. Personal verification/Identification by the student is not required. Hence, any claim for personal identification of answer book is not permitted. However, the retotalling shall be done by a committee appointed by the University.
The Executive Council, in its 193rd meeting held on 23.05.2011, considered the said report of the Committee and ratified the introduction of double valuation system from April 2011 examinations onwards and also approved the modalities/guidelines recommended by the Committee, for immediate implementation. The Executive Council in its 198th meeting held on 29.02.2012 approved the difference between the two valuations to be increased to 20% instead of 15% for considering third valuation of answer scripts. Thus, as per the present system, the answer scripts would be valued by the first examiner (external examiner) and thereafter it would be valued by the second examiner (internal examiner) and if there is any difference of more than 20% marks in the two valuations it would be sent to the third examiner who is not one of the earlier two valuers and the said third examiner is stated to be an internal examiner. Thus, the valuation is done by two examiners mostly unless there is difference of more than 20%. This is not what is contemplated by Regulation 14(1)(b). Thus, the stipulation of the minimum number of four examiners for valuing the answer scripts is not complied with. The strict adherence to the said rule can be discerned from a perusal of Clause (c) of Regulation 14(1) which provides for conducting examinations with three examiners only under exceptional circumstances with two external examiners with prior intimation to the Medical Council of India justifying such action. In such cases also the result shall not be published without approval of the Medical Council of India.
I had an occasion to consider the compliance of said Regulation in Dr. Kanigalpula S.P. Manjeera v. Dr. N.T.R. University of Health Sciences , in the context of conducting clinical/practical and oral examination and after considering the Constitution Bench decisions of the Honble Supreme Court in Dr. Preeti Srivastava v. State of M.P. , Maharashtra University of Health Sciences, rep. by Deputy Registrar v. Paryani Mukesh Jawaharlal , the Division Bench decision of Himachal Pradesh High Court in Dr. Meena Sharma v. H.P. University and Madras High Court decision in Dr. R. Geetha v. Dr. MGR Medical University (W.P.No.17259 of 2011 and M.P.Nos.1 and 2 of 2011, dated 10.10.2011) I held as follows:
17. What emerges from the above decisions are as follows:
(i) The PG Medical Education Regulations, 2000, are binding on the Universities and no deviation can be made in respect of those regulations. The deviations in respect of those regulations cannot be called as procedural and they are mandatory and binding.
(ii) The appointment of unqualified internal/external examiners would materially affect the result of the candidates.
(iii) When there is shortage of the required number of external examiners, the University cannot conduct an examination, and only in the case of shortage of internal examiners, the examination can be held with one internal examiner but with two external examiners, and the result of such examination can be declared only with the permission of the MCI.
Hence, there cannot be any deviation from the regulations made by the Medical Council of India in the case of examinations. The said Regulations are binding on the University. Accordingly, I hold point No.1 in favour of the petitioners.
POINT No.2:
Coming to the second point of evaluation, the method that is being adopted by the University so far is to value the answer scripts initially by one external examiner and second valuation by an internal examiner. In case of difference of 20% marks, the answer scripts would be valued by third examiner who is an internal examiner. Regulation 14(1)(b) of the Medical Council of India Regulations stipulate that in all Post-graduate examinations, the minimum number of examiners shall be four (4), out of whom at least two shall be external examiners. The above method of valuation does not involve two external examiners contemplated in the Regulation. Thus, it is a direct violation of the Regulations framed by the Medical Council of India.
Learned Standing Counsel for the University, by placing reliance on the decisions reported in Om Prakash Shukla v. Akhilesh Shukla , Madan Lal v. State of J & K , Manish Kumar Shahi v. State of Bihar , Vijendra Kumar Verma v. Public Service Commission , Ramesh Chnadra Shah v. Anil Joshi , and Dhananjay Malik v. State of Uttaranchal , submitted that the students are estopped from challenging the method of evaluation when they appeared for the examination knowing fully well the process of examination. The decisions relied on by the learned Standing Counsel for the University relate to the process of selection for appointment to the posts and the ratio laid down in the said decisions are not applicable to the facts of the present case. The students were not put on notice with regard to the process of evaluation, but in view of the Medical Council of India Regulations, they are binding both on the students as well as the University. Hence, these cases are decided on the basis of the Regulations.
The University does not have any Regulations with regard to valuation of answer scripts of PG Medical students except the two resolutions of the Executive Council in their 193rd and 198th meetings. The Medical Council of India Regulations are also not very clear with regard to the method of valuation except stating that there should be four examiners.
Regulation No.4 of the Dental Council of India is more specific on this point and it reads as follows:
VALUATION OF ANSWER BOOKS:
All the answer books shall be valued by four examiners, two internal and two external and the average marks will be computed.
But, on a reading of Regulation 14(1)(b) of the Medical Council of India Regulations, I am of the opinion that the valuation of each candidates answer script shall be done by four examiners and the exception to the same is provided only in Clause (c) of sub-clause (1) of Regulation 14. The average of such four valuations should be taken as the marks obtained by the candidate.
An identical issue came up for consideration before the Kerala High Court in Dr. Geethu S. v. Kerala University of Health Sciences (W.P.(C) No.31364 of 2015 and batch dated 31.03.2016) and the Kerala High Court after considering the Supreme Court decision in Sanjay Singh v. U.P. Public Service Commission, Allahabad , observed as follows.
16. Much was argued on the question of examiner variability on account of multiple valuation and reliance was placed on the following observations in Sanjay Singh and another v. U.P. Public Service Commission, Allahabad and another [(2007) 3 SCC 720]:
"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".
The relevant clause in the MCI Regulations is as follows:-
"14(1)(b): For all Post Graduate Examinations, the minimum number of Examiners shall be four, out of which at least two (50%) shall be External Examiners, who shall be invited from other recognised Universities from outside the State. Two sets of Internal Examiners may be appointed one for M.D/M.S and one for Diploma."
The relevant clause in the KUHS Regulations is as follows:-
"3.15.1.(ii): For all Post-graduate Examinations, the minimum number of Examiners shall be four, out of which at least two (50%) shall be External Examiners from outside the State. One of the Internal Examiners shall be a Professor or Head of the Department."
Thus both the MCI Regulations and the KUHS Regulations speak of multiple valuation by four Examiners out of which two shall be External Examiners and the remaining two shall be Internal Examiners and no revaluation is also provided therefore. The valuation of each of the papers by four different examiners reduces the arbitrariness and the importing of two External Examiners makes the system fool proof beyond any internal interference. The 'examiner variability' or the 'hawk dove effect' would come into play only if the answer scripts are divided amongst several valuers in view of the large number of candidates and does not apply to a valuation of limited number. Multiple valuation of each paper by all the four examiners - two external and two internal - gives little room for examiner variability and reduces arbitrariness in the valuation to a large extent. The refusal of the University to have revaluation again in the circumstances is wholly justified and the accusation of the petitioners as regards valuation hinged on the 'hawk dove' theory is unfounded.
Though the petitioners focused their attention mainly on the alleged lapses in the digital valuation, we are more concerned with the method of valuation than the mode of valuation. If the valuation is not done by four examiners, whether it is a manual or digital valuation does not make any difference on the application of law. The digital evaluation might have eliminated the labour of examiners to some extent, but the application of mind of the examiners to the answers is not eliminated.
In the earlier batch of cases i.e., Dr. P. Kishore Kumars case (supra), this Court was more concerned with the system of digital evaluation and the tools employed therein but did not examine the legal aspect of the matter. Though the usage of tools while evaluating the answer sheets was highlighted in the said judgment, the same is not followed while evaluating answer scripts even in this batch of cases. The marks were filled up in a separate marks sheet and that is the reason why when an opportunity was given to the candidates to verify their answer sheets, the digital sheets were not shown to them, but only manual scripts were shown. If the digital evaluation method is transparent, each answer script evaluated by the examiner by using the tools provided for it should be saved for future review in order to see whether the examiner has applied his mind while evaluating the answer scripts or not.
It is pointed out to this Court by the learned counsel for the petitioners that the papers were not referred to the third valuation, though there is difference of 20% of marks in initial two valuations and though there is no difference, it was referred to third valuation. As an example, paper-I of the candidate in W.P.No.30486 of 2017 was shown where the difference in two valuations was more than 20%, but it was not referred to third valuation. The arbitrariness of award of marks was highlighted in Question No.2 of paper-III where a candidate was awarded 0-10-0. There were discrepancies in respect of valuation of second petitioner with Hall Ticket No.1358324 for questions 2 and 7 in paper No.4. Similar lapses were pointed out by other petitioners. This Court, on its own, perused the P.G Evaluators List submitted by the Controller of Examinations in respect of the subject of General Medicine and noticed that all the evaluators are internal examiners in respect of candidates with Bar Code Nos.13807076, 13834590, 13849942, 13871384, 13844412, 13847282, 13800286, 13800260, 13803882, 13844493, 13866661, 13871642, 13803963, 13803996, 13807522, 13813155, 13816784, 13821603, 13821625, 13821640, 13821695, 13821706, 13830902, 13830913, 13830924, 13830946, 13830950, 13830983, 13830994, 13834774, 13837946, 13841590, 13844563, 13844574, 13844600, 13844622, 13844633, 13847411, 13847444, 13850104, 13854282, 13854293, 13854304, 13854363, 13858143, 13858154, 13858176, 13860276, 13860280, 13882665, 13882676, 13882680 and 13884990. It is surprising to note that the external examiner was not involved in the valuation of the answer scripts of the above candidates appearing for General Medicine. In respect of other subjects also this Court noticed the same lapse in respect of some candidates. Thus, the valuation is ex facie irregular.
It is pointed out by the learned counsel for the petitioners that Regulation 14(4)(b)(iii) provided that the theory examination shall be held sufficiently earlier than the clinical and practical examination in order to enable the assessment of answer books and their valuation before the start of the clinical/practical and oral examination, but it is stated that the evaluation was done either simultaneously or one day before the practical examination in order to avoid the expenditure of external examiners who have to be called twice if the said regulation is followed scrupulously. When this is pointed out to the Controller of Examinations, it is stated that there is dearth of external examiners and the said practise is being adopted in view of their shortage. When nearly more than 500 Medical Colleges are there in the country, it cannot be said that there is shortage of external examiners.
It is common knowledge that the students gain admission in P.G. Medical studies after much effort and tough competition. They expect a fair system of evaluation. As pointed out above, the system of evaluation adopted by the University is contrary to the Regulations of the Medical Council of India and arbitrary. It is for the Medical Council of India to verify the compliance of Regulations in all aspects including conduct of examinations and evaluation of answer scripts. The Medical Council of India should have adopted the latest techniques of evaluation and framed appropriate rules. The different methods of evaluation and assessment are best explained in the Handbook on Medical Student Evaluation and Assessment published for Alliance for Clinical Education by Gegensatz Press, New York (2015). The Medical Council of India should have done some work on the method of valuation and framed appropriate regulations but it omitted to do so. It is hoped that the Medical Council of India would look into this aspect and amend the Regulations appropriately by giving clarity on the method of evaluation of answer scripts by more scientific and objective methods.
Since this Court found that the method adopted by the University is contrary to the Regulations and there is large scale violation of the resolutions passed by the Executive Council in respect of valuation of answer scripts as pointed out in respect of the subject of General Medicine and occurring in other subjects also, this Court has no hesitation to hold that the valuation done to the answer scripts of the petitioners is invalid and, accordingly, the Writ Petitions are allowed. The second respondent University is directed to revalue the theory answer scripts of the petitioners and other failed candidates who have appeared for the examination by two external examiners and two internal examiners in consonance with Regulation 14(1)(b) of the Medical Council of India Regulations and declare their results as expeditiously as possible. The Oral/clinical marks already obtained by the candidates shall be taken into account for the purpose of declaration of results. The supplementary examinations shall be conducted only after declaration of their results.
All the Writ Petitions are, accordingly, allowed without costs. As a sequel thereto, the miscellaneous petitions, if any pending in these Writ Petitions, shall stand closed.
____________________________ A.RAMALINGESWARA RAO, J Date: 23rd October, 2017