IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.23501/2019 (EDN - RES) BETWEEN :
Ms. NYVEDYA NARENDRA D/O Mr. B.P.NARENDRA, AGED ABOUT 23 YEARS, REG.NO.14M0877 R/O 201, SRI SAI MEDOWS, 6TH CROSS, RMV 2ND STAGE, MLA LAYOUT, DOLLARS COLONY, BENGALURU-560 094. ...PETITIONER (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI ABHISHEK MALIPATIL, ADV.) AND :
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, 4TH T BLOCK, JAYANAGAR, BENGALURU-560 041 REP. BY ITS VICE CHANCELLOR.
2. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4TH T BLOCK, JAYANAGAR, BENGALURU-560 070 REP BY ITS REGISTRAR (EVALUATION) …RESPONDENTS (BY SRI N.K.RAMESH, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT R-1 AND 2 TO CONDUCT FRESH VALUATION OF THE ANSWER SCRIPTS OF THE SUBJECTS PAEDIATRICS & OBG OF THE PHASE III PART II MBBS COURSE EXAMINATIONS OF DECEMBER 2018 UNDERTAKEN BY THE PETITIONER IN TERMS OF THE ORDER DATED 21.12.2018 PASSED BY THIS HON'BLE COURT IN W.P.Nos.48194-48198/2018 AND ORDERS DATED 11.02.2019 AND 20.02.2019 PASSED IN WP.NO.4533/2019 VIDE ANNEXURES-E, F AND F1 RESPECTIVELY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has sought for a direction to the respondents to conduct fresh valuation of the answer scripts of the subjects Paediatrics and OBG of the Phase III part II MBBS course examinations of December 2018 undertaken by her.
2. The petitioner is claiming to be the student of the MBBS stream Phase III Part II MBBS (RS3). The petitioner having appeared for the Examinations conducted in December 2018, has now been declared as failed in the subjects of ‘Paediatrics & OBG’.
3. The petitioner has applied for revaluation, on such revaluation, substantial variation in marks between the evaluators has been found. It is the grievance of the petitioner that one of the evaluators has awarded marks and the other has awarded ‘zero’ or very less marks which does not inspire confidence in the entire evaluation system adopted by the University. Despite, the same, the University has declined to refer for a third evaluation, rejecting the request of the petitioner and hence the present writ petition.
4. Learned Senior counsel Sri.Ashok Harnahalli representing the learned counsel Sri.Abhishek Malipatil on record for the petitioner placing reliance on the judgment of the Hon'ble Apex Court in the case of High Court of Tripura Through Registrar General Vs. Tirtha Sarathi Mukherjee and others in Civil Appeal No.1264/2019 (D.D.6.2.2019) submitted that there is no hard and fast rule to reject the request of the petitioner to refer the answer scripts for third evaluator in the absence of any provision for revaluation. Power under Article 226 may be exercised even in the absence of any provision for revaluation in a situation wherein the candidate despite giving correct answer has been treated as having given the wrong answer. Reference is also made to the Orders of this Court in W.P.No.4533/2019 (D.D.20.2.2019) as well as W.P.No.7872/2019 (D.D.26.2.2019) whereby this Court has directed the University to refer the answer papers to a third evaluator for revaluation.
5. Learned counsel Sri N.K.Ramesh appearing for the respondents would submit that in the absence of any provision for revaluation, the writ Court must consider the case with greater circumspection and should not generally direct revaluation. Reliance is placed on the judgment of the Apex Court in the case of Ran Vijay Singh & others Vs. State of Uttar Pradesh & Others reported in (2018)2 SCC 357.
6. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
7. It is not in dispute that there is no provision for revaluation in the circumstances of the case as put forth by the learned Senior counsel to consider for revaluation. The relevant factor envisaged by the Hon'ble Apex Court in the case of High Court of Tripura, supra, is that the said relaxation to refer to a third evaluator must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. It is trite law that this Court cannot sit in the arm chair of an academician to examine the correctness of the answer papers as an expert body in exercising the jurisdiction under Article 226. Indeed in cases where there is no dispute about the correctness of the answer, certainly Article 226 can be invoked by this Court as held by the Hon'ble Apex Court referred to supra. Keeping that in mind, it appears the Cognate Bench of this Court on consensual arrangement made on the Court’s proposal for revaluation, the answer paper was referred to a third evaluator. That is not the position in the present set of facts.
8. In the circumstances, this Court finds it appropriate to reserve liberty to the petitioner to submit the representation before the respondent-University to refer the matter to a third evaluation bringing to the notice of the University inasmuch as the correct answer, if any, treated as wrong answer, in the light of the judgments of the Hon'ble Apex Court as well as the judgment of this Court referred to supra. If such a representation is submitted by the petitioner within one week from today, the same shall be considered by the respondent-University in accordance with law and a decision shall be taken in an expedite manner, in any event, not later than four weeks from the date of receipt of the submission.
Writ petition stands disposed of in terms of above.
Dvr:
Sd/- JUDGE