IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.15042/2017 (EDN RES) Between:
Miss.Divya Shree J., D/o Jayaram Reddy, aged about 23 years, R/o #342, Konena Agrahara, Behind SBI Aircargo Branch, Old Airport Exit Road, HAL., Bengaluru – 560 017. ….Petitioner (By Sri.R.B.Sadashivappa, Advocate for Sri. Nandish Patil, Advocate) And:
1. Rajiv Gandhi University of Health Sciences, 4th ‘T’ Block, Jayanagar, Bengaluru – 560 041, Represented by its Registrar.
2. Rajiv Gandhi University of Health Sciences, 4th ‘T’ Block, Jayanagar, Bengaluru – 560 041, Represented by its Registrar Evaluation.
3. Vaidehi Institute of Medical Science and Research Centre, # 82, EPIP Area, Whitefield, Bengaluru – 560 066, Represented by its Principal ….Respondents (By Sri.N.K.Ramesh, Advocate for R1 and R2 R3 served) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to direct the respondent No.2 to conduct Re-Valuation in so far as the petitioner is concerned with respect to the subject Obstetrics and Gynaecology with QP Code 1098 and 1099 and direct the respondents to consider the representation of the petitioner vide Annexure – K dated 04.04.2017 and etc.
This writ petition coming on for Preliminary Hearing in Group ‘B’ this day, the Court made the following:
O R D E R The petitioner, meritorious student who passed her 10th standard scoring aggregate of 95.36% decided to pursue her career in the field of medicine after completion of her PUC. The petitioner joined respondent No.3 college which is affiliated to respondent No.1 University. It is contended that the petitioner was declared as ‘pass’ in three subjects but declared as ‘fail’ in “Obstetrics and Gynaecology” with QP Code 1098 and 1099 in the fourth year of medicine. It is further contended that the petitioner immediately applied for the photocopies of her answer script along with the Candidate Marks Report for the said subject and it was found that there was apparent error in the calculation. It is contended that as there was an error apparent in the scoring and the fact that the petitioner was declared fail in Obstetrics and Gynaecology by a close margin of 1 mark, the petitioner made a request for revaluation before respondent No.2 orally on several occasions and finally gave a representation for the same and the same is not considered. Hence, the petitioner is before this Court.
2. Learned counsel Sri. R.B. Sadashivappa, appearing for the petitioner would make a fervent request that though in Candidate Marks Report, the highest marks awarded is 51.5, the respondent No.2 has taken the marks of the petitioner vide Annexure – J as 51. The rules and regulations of the respondent University provides for awarding 5 grace marks for students scoring 45 marks. The respondent No.1 ought to have considered the report and revaluated the paper as the margin is only to an extent of 1 mark. If the petitioner’s paper for the subject Obstetrics and Gynaecology is revaluated and the petitioner is awarded even a couple of marks, she will complete her studies in medicine and will save nearly six months of career. The case of the petitioner requires to be considered on humanitarian ground, sympathetically in considering the background of the case that the petitioner has scored first class through out MBBS course.
3. Learned counsel Sri.N.K.Ramesh, appearing for the respondents would contend that the regulations framed by the University categorically contemplates that, where total marks awarded by two different evaluators is more than 15 percent, the student is eligible for revaluation, that not being the case, the request of the petitioner to revaluate the paper in Obstetrics and Gynaecology cannot be considered. The learned counsel further placing reliance on the judgment and order passed by this Court in W.P.No.31195/2016 c/w W.P.No.32499/2016, wherein this Court has referred to the judgment of the Division Bench of Madhya Pradesh High Court in the case of ‘Pranshu Indurkhya V State of M.P. (AIR 2005 Madhya Pradesh 152)’, submits that different examiners while valuating the same answers may award different marks resulting in lesser or higher marks. Revaluation is not to be directed merely because another evaluator is of the view that the marks should have been different for the same answer.
4. Having heard the learned counsel for the parties, it emerges that it is the case of a meritorious student failing in one subject, Obstetrics and Gynaecology in the final year of MBBS Course. This Court has all the sympathy for the petitioner student but the relief has to be granted within the legal frame work. It is obvious that the petitioner would have passed the final year MBBS Course provided she had secured one extra mark, but the rules and regulations of the University do not permit for revaluation of the paper unless the difference of marks awarded by two evaluators is more than 15 percent. The comparative statement of the marks assessed by two evaluators not coming within the purview of this regulation, the petitioner is not entitled for further revaluation as sought for. At this juncture, it is beneficial to refer to the judgment of Division Bench of Madhya Pradesh High Court (supra), which has been referred to by this Court in W.P.No.31195/2016, wherein it has been observed in para 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 for 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 rules 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 a 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 is 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 teacher, 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.”
This judgment has been followed by this Court in catena of judgments. It is unrealistic to expect the assessment by two different evaluators strictly in the same manner in awarding the same marks for a particular answer. It is not uncommon to award different marks on account of perceptional difference. To certain extent, human error, perceptions, oversight is obvious in the valuation. Merely the slight difference of marks awarded by two evaluators may not call for revaluation of the paper.
Hence, the prayer in the present writ petition do not merit consideration and accordingly writ petition stands dismissed.
Sd/- JUDGE SV