In all these writ petitions, the petitioners have completed their Higher Secondary Examinations conducted by the respondents 1 to 3 in March, 2010 and have sought admission to the MBBS Degree Course in the Government Medical Colleges in the State of Tamil Nadu for the academic year 2010-2011.
2.1. The grievance of the petitioners in these cases is relating to Question No.32 in Part-II, Section-C of Bio Zoology Subject in the Higher Secondary Examination carrying five marks. The said question in English was as follows:
"32. Describe the Karyotyping of Human Chromosomes."
In Tamil version, the question was as follows:
"32. kdpj Fnuhk;nrhk; bjhFg;g[ tiuglj;ij tpthp"
2.2. In Section-C there were five questions, namely Question Nos.29 to 33, out of which the candidate should answer any three questions. Out of the three questions, Question No.31 is a compulsory question and therefore, out of the remaining four questions, namely Question Nos.29, 30, 32 and 33, which are optional, the candidate has to answer two questions. Therefore, Question No.32 is optional.
2.3. The key answer for the said question prepared by the second respondent/Board through experts is as follows:
Karyotyping of Human Chromosomes Group A & Group B with explanation (= + =)
-
Group C with explanation
-
Group D with explanation
-
Group E & Group F with explanation (= + =)
-
Group G with explanation
-
2.4. In the Text Book prescribed by the Government, under Chapter 4 - "Modern Genetics", under the caption "Human Genetics Karyotyping", an explanation for the term "Karyotyping" is given as follows:
"Karyotyping is a technique through which the complete set of chromosomes are separated from a cell and the chromosomes are lined up in a karyogram. The term karyogram has now been replaced by another word called Idiogram referring to a diagrammatic representation of chromosomes.
The Karyological studies are usually made during mitosis, though the chromosome structure and details can also be best done in meiotic preparations. It is much easier to obtain and prepare suitable mitotic cells. Mitosis also reveals the replicated chromosomes viz., sister chromatids.
The diploid set of chromosomes in the eukaryotic cells has constant morphological (phenotypic) features such as number, size, shape. The chromosomes are identified by other features such as the secondary constriction, arm ratio, and banding pattern. The summation of all such characters, which identify a set of chromosomes is called karyotyping.
Karyotyping involves the culture of foetal cells found in the amniotic fluid, in vitro, in a highly nutritive solution containing phytohaemagglutinin. The foetal cells are cultured with colchicine. Colchicine stops mitosis at metaphase. When these cells are subjected to a hypotonic solution, the cells swell because the soluble salts are of lower concentration than in normal protoplasm. The water diffuses into the cell and separates the chromosomes. The scattered chromosomes are then placed on a slide, stained and photographed under a microscope. Individual chromosomes are then cut off from the photograph and marked as homologous pairs to form an idiogram."
2.5. The Text Book also contains another head "Karyotyping of Human Chromosomes" containing a diagram in the form of pairs of chromosomes during metaphase explaining the 23 pairs of chromosomes as follows:
"The 23 pairs of chromosomes in human are classified into seven groups viz., A-G based on position of centromere.
Group A : This group includes the largest chromosomes 1, 2 and 3. These are metacentric with centromere found in center with two equal arms.
Group B : This group represents chromosomes 4 and 5 which are submetacentric with two unequal arms.
Group C : This is the largest group containing chromosomes 6, 7, 8, 9, 10, 11, 12 and X. These are of medium size and submetacentric. The X chromosome resembles the chromosome 6 in this group.
Group D : These are medium sized chromosomes with nearly (acrocentric) terminal centromeres. The chromosomes 13, 14 and 15 are kept in this group.
Group E : It consists of chromosomes 16, 17 and 18. They are shorter and meta or submetacentric.
Group F : Shorter metacentric chromosomes 19 and 20 represent this group.
Group G : This group comprises the very short acrocentric chromosomes 21, 22 and Y belong to this category."
2.6. The petitioners, who belong to various communities and who have attempted the said Question No.32 which is an optional question, were all given zero marks, as found in the xerox copies of the answer sheets furnished to them as per the regulations governing the Higher Secondary Examinations. A few of the petitioners, after receiving a copy of the answer scripts, have applied for revaluation, including the said question, since the regulation enables an application for revaluation. However, it is seen that majority of the petitioners, on fact, have not applied for revaluation and instead have filed the present writ petitions mostly with similar prayer for a direction against respondents 1 to 3 to award them full five marks in respect of Question No.32 in Section-C in the Subject Bio-Zoology. Since these students are almost near the cut off mark fixed by the Government required for the purpose of selection and allotment of seats in the Government Medical Colleges, they have further prayed for a direction against respondents 4 and 5 to consequently provide them admission to the MBBS/BDS Degree Course in the Government Medical Colleges in the State for the academic year 2010-2011.
2.7. Most of the cases filed in the Principal Bench appear to be in consequence of a batch of similar writ petitions filed in the Madurai Bench of this Court and the final order passed by the Madurai Bench in batch of cases in W.P. (MD) No.7874 of 2010, etc., dated 16.7.2010.
2.8. In the said batch of writ petitions filed in the Madurai Bench, the learned Judge, having found the prima facie case on the part of the petitioners therein who contended that the key answer provided by the second respondent in respect of Question No.32 is palpably wrong and against the Text Book prescribed by the Government, appointed three experts one Assistant Professor of Zoology and two Teachers working in the Higher Secondary Schools, out of whom one is stated to be a Post Graduate Teacher and another as Head of Biology Department. However, the fact remains, as it is seen in the order of the learned Judge and as also admitted, that neither the names of the said experts were informed to any one nor divulged to any of the counsel, nor the reports filed by them have been forwarded to any of the counsel.
2.9. The learned Judge found that out of the three experts, the Assistant Professor of Zoology has opined that the answer to the question should have been both the method of karyotyping and the karyotyped information about human chromosomes and therefore, the students who have written explaining about the karyotypes of human chromosomes is also correct, however finally stated that the key answer is the right answer, as it is seen in the order of the learned Judge. The order also reveals that the remaining two experts have stated that the key answer is incorrect and the answers written by the students are correct. The above opinions appear to have been given by the said experts on the framing of four questions by the learned Judge, viz., "(i) The expert may also suggest whether both the answers are correct or suggest which answer is correct.
(ii) The expert may also submit if both the answers are not correct.
(iii) The expert may also point out that there is possibility of one answer more correct and other answer less correct.
(iv) The expert may also suggest whether the question is properly drafted so as to enable the student to understand and comprehend the question."
It appears that the learned Judge has referred two answers one from the Text Book as answer No.(1) and another from key answer as answer No.(2) to the experts, without intimating the above said fact as to whether it was a text book answer or key answer.
2.10. However, after referring to the opinion of the three experts, the learned Judge, having found that it is not made clear as to whether the key answer is correct or not, proceeded to refer to the text prescribed by the authorities to the students, analysing the same to visualise the mind of the students while writing the examination, and has ultimately come to a conclusion that the framing of question is not proper and it may lead to confusion in the minds of the students, in the sense that the students may not be able to decide as to whether the question requires the answer of technique of karyotyping or classification of human chromosomes and held that the key answer is not fully correct and the answer given by the students is also not fully wrong and disposed the writ petitions with a direction to the respondents to revalue the answers written for Question No.32 indicating the manner, as elicited in paragraph (40) of the judgment, which is as follows:
"40. As a matter of fact, one of the petitioner in W.P.(MD) No.8711 of 2010 has written the technique and also drawn the diagram of karyotyping of human chromosomes. Nevertheless, that student was not also given any mark. In my opinion, the petitioner in W.P. (MD) No.8711 of 2010 has written the technique as well as drawn the diagram showing the karyotyping of Human chromosomes and he has only omitted to write the different classification. Considering all these aspects, I am of the opinion that the students, who have written the theory or technique of Karyotyping, cannot be denied marks, as, in my opinion, the key answer is not fully correct and the answer given by the students are not fully wrong and therefore, certain marks can be given to the petitioners, who have written the theory part alone. I, therefore, hold that the answer papers of the petitioners can be revalued by the respondents in the light of the observations made by me in this judgment and accordingly, suitable marks can be awarded to the petitioners. With the observations, these writ petitions are disposed of in the manner stated above."
As per the said order of the learned Judge of the Madurai Bench, it applied to 13 candidates who are mentioned in paragraph 43 of the said order.
2.11. While the order was pronounced in the Madurai Bench in the said batch of cases on 16.7.2010, as stated above, on filing of the following writ petitions, originally by eight writ petitioners, which forms part of the present batch, namely (i) Minor G.Adethen (petitioner in W.P.No.15730 of 2010), (ii) Minor S.R.Sharath Shanmugam (petitioner in W.P.No.15748 of 2010), (iii) Minor A.Santhosh Ramanan (petitioner in W.P.No.15786 of 2010), (iv) Minor R.Sundri (petitioner in W.P.No.15787 of 2010), (v) Minor R.Velvizhi (petitioner in W.P.No.15788 of 2010), (vi) Minor Aishwarya Mohan (petitioner in W.P.No.15791 of 2010), (vii) Minor T.Manickavel (petitioner in W.P.No.15932 of 2010), and (viii) Minor J.C.Yogaisvariya (petitioner in W.P.No.15937 of 2010), this Court, taking note of the contention raised by the respective counsel that the counselling was to commence on 22.7.2010 and also taking note of the objections raised by the learned Additional Advocate General, has passed an interim order on 21.7.2010 directing the respondents to keep eight seats in Government Medical Colleges in MBBS/BDS vacant.
2.12. It appears that, in the meantime, as against the order of the learned Single Judge of the Madurai Bench, dated 16.7.2010, as stated above, the respondents have filed writ appeals in W.A.(MD) Nos.407 of 2010, etc., which were pending in the Madurai Bench and therefore, this Court, while passing the said interim order on 21.7.2010 in the eight writ petitions, stated above, has made it clear that the direction to keep the seats vacant was subject to the final outcome of the decision in the writ appeals pending before the Madurai Bench. The operative portion of the order dated 21.7.2010 passed by this Court in that regard is as follows:
"7. Considering the circumstances, as there is an order of this Court with regard to the question No.32 in favour of those who have written the examination, the respondents are directed to keep eight seats in Government Medical Colleges in MBBS/BDS vacant subject to the outcome of the decision in the writ appeal preferred by the respondents. It is made clear that in case the decision in the writ appeal is in favour of the petitioners, the case of the petitioners will be considered in accordance with law. In case if the decision goes in favour of the respondents, the seats so reserved shall be filled up by them immediately without any further delay. Post the matters for hearing on 29.7.2010."
2.13. Thereafter, it is seen that the Division Bench of the Madurai Bench of the High Court, by judgment dated 10.8.2010, has disposed of the batch of writ appeals in W.A.(MD) Nos.407 of 2010, etc. filed by the respondents herein against the above said order dated 16.7.2010 in W.P.(MD) No.7874 of 2010, etc., concluding that the learned Single Judge has given a finding that the key answer relating to question No.32 is demonstrably wrong and palpably incorrect and arriving at a conclusion that as far as the form of the question is concerned there is no ambiguity, accepting the contention of the learned Additional Advocate General that the question put to the students is in a proper form, but however has held that the key answer is not correct and held that the writ petitioners therein are entitled to full five marks for question No.32 in Section C in Part-II, Zoology subject examination. The operative portion in paragraphs (14) and (15) is as follows:
"14. ...... But, in the key answer, what is given is only the classification of Human Chromosomes, as rightly put in by the learned counsel for the private respondents. Apart from this, a reading of the particular portion in the textbook also reveals that the stand of the private respondents that without a diagram, based on the explanation above, the issue could not be understood, has to be accepted. But, in the key answer, only classification portion is given. Even assuming for a moment that the classification is the correct answer to be given, even that is not in the complete form, i.e., without the diagram, the explanation alone cannot convey the full meaning. Though a point is taken by the learned Additional Advocate General that the mark awarded for the said question was only 5 and only to a limited extent, the students were expected to answer to that, we are of the opinion that any answer must convey the meaning and even if the answer is precise, it should be in a complete form. As far as the aspect that by giving a classification alone, whether the answer gains its full form is concerned, a perusal of the classification along with the diagram reveals that this stand of the learned Additional Advocate General cannot be accepted for the reason that only with the diagram based on the explanation given, one can understand the same. Apart from this, having framed a question i.e. "Describe Karyotyping of Human Chromosomes", even in our opinion, without defining "Karyotyping of Human Chromosomes", by classification alone, the answer cannot be said to be a correct one. Consequently, look from any angle, we are of the opinion that the key answer is not a correct one. However, based on the finding that the correct answer is the combination of description, technicalities and the classification alone, the learned Single Judge has issued a direction for re-valuation. As per the judgment of the Hon'ble Apex Court reported in [2005] 13 SCC 749, when the key answer is palpably wrong and demonstrably erroneous, the students are entitled to get full marks. Consequently, we are of the opinion that the writ petitioners are entitled to full 5 marks for Question No.32 in Section C in Part II, Zoology subject examination.
15. Consequently, we uphold the order of the learned Single Judge. Further, the appellants are directed to revalue the answer written for Question No.32 in Section C in Part II, Zoology subject examination held in March, 2010 for the Higher Secondary Course in terms of the finding given in paragraph No.14 within a period of three days from the date of receipt of a copy of this order and if the writ petitioners are going to secure the cut-off mark or more than the cut-off mark after such revaluation, the appellants are directed to consider the case of the writ petitioners for admission into M.B.B.S./B.D.S. course and even after revaluation, if the writ petitioners are not going to secure the cut-off mark, their case need not be considered."
2.14. In the meantime, as against the interim order passed by this Court dated 21.7.2010, as stated above, directing to keep eight seats vacant, the respondents have filed W.A.Nos.1457 and 1458 of 2010 and the Hon'ble First Bench, while disposing of the said writ appeals, by judgment dated 26.8.2010, directed the eight writ petitions to be listed before this Court for final disposal. The Hon'ble First Bench has also directed the respondents to keep eight seats in the Government Medical Colleges in MBBS/BDS vacant. The observations made by the Hon'ble First Bench are as follows:
"12. Therefore, in these cases the appellants contend that the Judgment of the Division Bench of the Madurai Bench of this Court cannot be made applicable as it is per incurium. When such is the situation, the Writ Petitions cannot be disposed of solely by relying on the Division bench Judgement, but due opportunity should be granted to either side to putforth their submissions. Therefore, in our view, the appropriate procedure to be adopted would be to request the learned Judge to hear the Writ Petitions themselves. If that be the proper course, what should be done pending such decisions in the Writ Petitions.
13. It is a settled legal position that the object of granting interim order is to preserve statusquo till a final decision is arrived in the main case, and such interim orders would be granted when the three cardinal principles, namely primafacie case, balance of convenience and irreparable hardship is established. It is not in dispute that the counselling for the M.B.B.S./BDS is in progress. In such situation, if sufficient safeguard is not extended to the writ petitioners, in the event of their success in the Writ Petitions, the relief itself is liable to become infructuous as we are informed that after 30th September, 2010, the seats in these medical courses cannot be filled up.
14. In that view of the matter, we deem it appropriate to pass an order directing that eight seats in the Government Medical Colleges in M.B.B.S/B.D.S. shall be kept vacant. However, the writ petitioners shall not be entitled to seek for admission against these eight seats during the pendency of the writ petitions.
15. With the above direction, these Writ Appeals are disposed of with a request to the learned Judge to dispose of the Writ Petitions at the earliest. Registry is directed to list all the eight writ petitions for hearing. No costs. Consequently, connected miscellaneous petitions are closed."
2.15. In the meantime, as against the Division Bench judgment of the Madurai Bench dated 10.8.2010 in W.A.(MD) Nos.407 of 2010, etc., the respondents have filed review petitions and the same have been disposed of by the Division Bench of the Madurai Bench by a judgment dated 15.9.2010 in Review Application (MD) Nos.81 to 93 of 2010, etc. batch.
2.16. It is by virtue of the direction of the Hon'ble First Bench to dispose of the writ petitions, the said eight writ petitions have been posted before this Court. That apart, the other writ petitions, which were in the meantime filed, have also also been directed to be posted and hence, all the writ petitions are taken up for final disposal.
2.17. One other factual aspect is that the said eight writ petitioners, for whose benefit this Court by an interim order dated 21.7.2010 has directed to keep eight seats vacant, have participated in the counselling which took place on 22.7.2010, in which except Minor Aishwarya Mohan (petitioner in W.P.No.15791 of 2010) and Minor T.Manickavel (petitioner in W.P.No.15932 of 2010), who are stated to have been kept in the waiting list for allotment to the self-financing colleges for MBBS Course and who belong to OC and MBC communities respectively, all other six writ petitioners, based on their participation in the counselling on 22.7.2010, were allotted various self-financing private medical colleges. The particulars regarding their communal status and aggregate marks, as furnished by the learned Additional Advocate General, are as follows:
AR. No. WP.No.
Reg No. Name Com Aggr Present Status Course 7906 15730/10 684346 Adethen.G BC 195.25 Aadhiparasakthi M.C., Melmaruvathur S.F. MBBS 2023 15748/10 709528 Sharath Shanmugam S.R.
SC 188.25 P.S.G., Coimbatore S.F.MBBS 7172 15786/10 755055 Santhosh Ramanan.A MBC 193.00 P.S.G., Coimbatore S.F.MBBS 7532 15787/10 777100 Sundri.R BC 194.50 Chennai Medical College, Trichy S.F.MBBS 3699 15788/10 755067 Velvizhi.R BC 194.25 Tagore M.C., Vandalur S.F.MBBS 4669 15791/10 357132 Aishwarya Mohan OC 192.75 Wait List For S.F.MBBS 3835 15932/10 350616 Manickavel.T MBC 190.00 Wait List for S.F.MBBS 7993 15937/10 391118 Yogaisvariya J.C.
BC 192.00 Ramakrishna D.C., Coimbatore S.F.BDS 2.18. It is also brought to the notice of this Court that out of these eight candidates, the writ petitioner in W.P.No.15932 of 2010 T.Manickavel, who was placed in the waiting list for allotment to self-financing MBBS Course in the counselling held on 22.7.2010, has been subsequently allotted to a private medical college for BDS Course, however the said college, claiming itself to be a minority institution, has not permitted the said petitioner to be admitted. It is also not in dispute that the said six petitioners, who have been given allotment orders on condition that within one week from the date of allotment orders they should make necessary payment of fees to the concerned self-financing colleges, and accordingly they have also paid their fees and it is also stated by the learned Additional Advocate General that the final process of selection by counselling is to be held on 24.9.2010.
2.19. It is also appropriate to note that the cut-off mark arrived at by the respondents for the purpose of eligibility to be admitted in the MBBS Course community-wise is as follows:
SC
-
188.75 MBC
-
193.25 BC
-
195.75 OC
-
197.50 3.1. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for three of the said eight writ petitioners, viz., for the petitioners in W.P.Nos.15786 to 15788 of 2010, who were all allotted in the private self-financing medical colleges in the MBBS Course as per the counselling held on 22.7.2010 and who have also made necessary payment of fees to respective colleges, would submit that if as per the judgment of the Division Bench of the Madurai Bench five marks are added, all the three petitioners will be eligible for allotment of government seats, in which event the said petitioners, who had to undergo enormous financial strain of paying exorbitant amount of fees in the private aided medical colleges, can be admitted in the Government colleges, especially when the fees in the Government Medical Colleges per year is Rs.10,000/-, whereas it is Rs.2.25 Lakhs in the private self-financing medical colleges.
3.2. It is his submission that on the face of it there is a vast difference of question in Tamil and English when compared. It is his submission that even if one sees the key answer wherein seven groups have been categorized into five groups, namely Group A and Group B together as one group and Group E and Group F as one group, apart from the other groups, namely Groups C, D and G, the same are not the expected answers even as per the prescribed text books of the government.
3.3. He would submit that even if the order of the learned Single Judge of the Madurai Bench in W.P. (MD) No.7874 of 2010, etc., dated 16.7.2010, wherein there was a direction for revaluation is effected, if appropriate marks are put to the petitioners, there is every possibility for the petitioners to move over to the allotment in the Government Medical Colleges.
3.4. It is his submission that the Madurai Bench both the learned Single Judge as well as the Division Bench have found that the question and the key answers are capable of creating confusion in the minds of the young students and therefore, there has been a demonstrably palpable mistake causing gross injustice to the young students. It is also his submission that in such event, the Apex Court has categorically held that the Courts can interfere to render justice, by relying upon the judgment of the Apex Court in Manish Ujwal v. Maharishi Dayanand Saraswati University, [2005] 13 SCC 744.
3.5. It is his submission that in such circumstances, the judgments of the Madurai Bench cannot be held to be per incuriam, even though there has been an observation made by the Hon'ble First Bench of this Court about the possibility of raising the question of per incuriam. It is also admitted that none of the said petitioners have applied for revaluation.
4.1. Mr.V.Raghupathi, learned counsel appearing for the petitioner in W.P.No.15748 of 2010, who is one among the other eight petitioners and has been allotted seat in PSG Medical College, Coimabtore in the counselling held on 22.7.2010 and who belongs to SC community and obtained aggregate mark of 188.25, while the required mark is 188.75, contends that what is required by the petitioner is 0.50 marks only for obtaining a seat in the Government Medical College.
4.2. While adopting the arguments of Mr.AR.L.Sundaresan, learned Senior Counsel, he would submit that giving zero mark to the petitioner is gross injustice, especially when there is at least an apparent doubt about the key answer as well as the question itself, which is demonstrably against the text book prescribed by the Government itself. It is his submission that irrespective of the experts' opinion, on seeing the key answer and the text book prescribed by the Government, there is a vast difference. He would submit that the petitioner having applied for revaluation in time, his claim has been rejected.
4.3. It is also his submission that when once the Division Bench of the Madurai Bench of the High Court has already given a judgment, the same is binding on this Court and therefore, the petitioner is entitled to five marks to be added along with the marks secured by him. It is also his submission that even if the order of the learned Single Judge of the Madurai Bench ordering revaluation on merit is accepted, when what is required by the petitioner is only 0.50 marks, there is every possibility for the petitioner to secure the same, in which event the petitioner, who belongs to the SC community, need not be burdened to bear enormous expenditure in the private self-financing medical colleges by way of fees. He would rely upon the judgments in Mridul Dhar v. Union of India,(2005) 2 SCC 65, [2002] 3 SCC 553, Manish Ujwal v. Maharishi Dayanand Saraswati University, [2005] 13 SCC 744, Air India Ltd. v. Vishal Capoor,(2005) 13 SCC 42, [2010] 5 MLJ 746 (SC) and [2010] 1 CWC 220.
5.1. Mr.Balan Haridas, learned counsel appearing for the petitioner in W.P.No.15730 of 2010, who has also been allotted a self-financing college in the counselling held on 22.7.2010 and who belongs to BC community with aggregate mark of 195.25, while what is required is 195.75, submits that the petitioner requires only 0.50 marks and such meritorious candidate had no other go than accepting in the second counselling for the self-financing private college, without giving up his right in the writ petition which is pending.
5.2. While admitting that the said writ petitioner has not applied for revaluation and adopting the arguments of Mr.AR.L.Sundaresan, learned Senior Counsel, it is his submission that the Division Bench of the Madurai Bench of the High Court has in categoric terms come to a conclusion that the question and answers relating to Question No.32 are palpably wrong and the same is binding on this Court and it can never be treated as per incuriam, since it is in accordance with the judgment of the Supreme Court in Manish Ujwal v. Maharishi Dayanand Saraswati University, [2005] 13 SCC 744, wherein it was held that when there is a finding that the key answer is palpably wrong, the revaluation and awarding of the mark is mandatory.
6.1. Mr.T.Sellapandian, learned counsel appearing for the petitioner in W.P.No.15937 of 2010, who is again one of the eight candidates who has been allotted a self-financing private medical college in the counselling held on 22.7.2010 and who belongs to BC community with aggregate mark of 192, while the required mark is 195.75, would submit that either by revaluation as per the order of the learned Single Judge of the Madurai Bench or as per the addition of five marks as per the judgment of the Division Bench of the Madurai Bench of the High Court, the petitioner has a chance of getting a seat in the Government Medical College. It is also admitted that the petitioner has not applied for revaluation.
6.2. While appearing for the petitioner in W.P.No.16842 of 2010, who is a candidate belonging to MBC community having aggregate mark of 190.75, while the required cut-off mark is 193.25, he contends that there is no question of per incuriam which may arise in this case by relying upon the judgment of the Supreme Court in State of Bihar v. Kalika Kuer, [2003] 5 SCC 448.
7.1. Mr.D.Krishnakumar, learned counsel appearing for the petitioner in W.P.No.15932 of 2010, who is one of the eight writ petitioners directed to be kept in the waiting list in the counselling held on 22.7.2010 and stated to have been subsequently allotted a private medical college for BDS Course, however not permitted to be admitted by the said college on the ground that it claims a status of minority in respect of which a writ petition is pending before this Court, who belongs to MBC community having obtained aggregate mark of 190, while the required cut-off mark for MBC is 193.25, admitted that the petitioner has not applied for revaluation.
7.2. While appearing for the petitioners in W.P.Nos.16770, 17516 and 18266 of 2010, who belong to BC, BC and MBC communities respectively, having got aggregate marks of 195, 194.50 and 195, who were all admitted in the private medical colleges, he would submit that if one or two marks are acquired by revaluation because of the mistake committed by respondents 2 and 3, there is every possibility for the said petitioners to have the chance of acquiring a seat in the Government Medical College.
8. Mr.J.Sivanandaraj, learned counsel appearing for the petitioner in W.P.No.18925 of 2010, who is a candidate belonging to BC Community having aggregate mark of 194.75, while what is required is only 195.75, would vehemently submit that the finding of the learned Single Judge of the Madurai Bench of this Court is not only relating to the palpable mistake in Question No.32, but also about the key answer and the learned Judge has stated that there has been a doubt about the correctness of the key answer and that itself is sufficient to come to a conclusion that there has been a palpable mistake resulting in gross injustice to the students and therefore, it is his submission that whether it is for the purpose of revaluation on merits or for the purpose of adding five marks as per the Division Bench judgment of the Madurai Bench, the same has to be automatically followed, since, according to him, the question of per incuriam does not arise. He would submit that the judgment of the Supreme Court in 2010 (5) MLJ 746 (SC) is not applicable to the facts of the present case. He would rely upon the judgments in Guru Nanak Dev University v. Saumil Garg, [2005] 13 SCC 749, Manish Ujwal v. Maharishi Dayanand Saraswati University, [2005] 13 SCC 744, AIR 2000 SC 2443 to substantiate his contention that the Division Bench judgment is binding upon this Court.
9. Mr.R.Thiagarajan, learned counsel appearing for the petitioner in W.P.No.15791 of 2010, who is one of the eight writ petitioners who is stated to have been placed in the waiting list on the date of counselling on 22.7.2010 and who is stated to belong to OC community having aggregate mark of 192.75, while the required cut-off mark for OC community is 197.50 and Mr.N.Manokaran, learned counsel for the petitioner in W.P.No.21000 of 2010, K.Rajkumar, learned counsel for the petitioner in W.P.No.20916 of 2010, Mr.R.Nalliyappan, learned counsel for the petitioner in W.P.No.19050 of 2010, Mr.E.Vijay Anand, learned counsel for the petitioner in W.P.No.16489 of 2010, and other respective counsel while adopting the arguments of Mr.AR.L.Sundaresan, learned Senior Counsel would submit that when the Division Bench of the Madurai Bench has dismissed the writ appeals with a direction to give five marks to candidates who have attempted Question No.32, nothing more is required.
10.1. On the other hand, it is the contention of Mr.P.Wilson, learned Additional Advocate General that the order of the learned Single Judge of the Madurai Bench and the judgment of the Division Bench of the Madurai Bench of the High Court are contradictory. It is his contention that when the learned Single Judge having not categorically held that the key answers are palpably wrong but observed that the question is not correct and it was not the issue raised by any of the writ petitioners, the Division Bench has proceeded as if the learned Single Judge has held that the key answer is wrong. It is his submission that when the law is well settled that academic matters, especially evaluation of answers or questions, cannot be done by the Court, as held by the Supreme Court in 2010 (5) MLJ 746 (SC), the confirmation of the order of the learned Single Judge by the Division Bench, to the effect that the learned Judge has substituted his own view on the academic matters is to be treated as per incuriam and is opposed to the principles of law.
10.2. It is also his submission that when three experts were appointed by the learned Single Judge of the Madurai Bench, no names of the experts were ever exposed to anyone, nor the copies of the experts' reports have been served on the parties and in the absence of any materials, the learned Judge himself has decided that the experts' opinions are of no use for coming to a conclusion and therefore, according to the learned Additional Advocate General, the entire process of appointing the experts is opposed to the manner known to law.
10.3. It is his submission that when one of the experts who has been an Assistant Professor of a College, as found in the order of the learned Single Judge, has ultimately held that the key answer is correct, in the absence of any particulars from the two other experts who have held otherwise, there is no reason for the Court to choose one of the contradictory opinions, which is not within the realm of the court's jurisdiction and therefore, it is his submission that the judgments are to be ignored as per incuriam.
10.4. To substantiate his contention that in academic matters the Courts are to be slow, the learned Additional Advocate General relied upon the decision of the Apex Court in AIR 1983 SC 1230.
10.5. It is his submission that the opinion of the learned Judge as to whether the question is to be descriptive or to be diagrammatic cannot be substituted while the academicians have decided in the key answers. It is his submission that out of 337 students who have attempted Question No.32, 203 students got five out of five marks in respect of that question, which means that they have understood the question in a proper manner and the answers were as per the key answers and 85 students only have got zero marks, which include the petitioners and therefore, there cannot be any presumption that the key answer is wrong.
10.6. He would also submit that the Division Bench judgment of the Madurai Bench of the High Court dated 10.8.2010 in W.A.(MD) Nos.407 of 2010, etc. directing to give five marks is not only contrary to the order of the learned Single Judge, but also opposed to the law laid down by the Supreme Court and therefore, it should be treated as per incuriam. To substantiate his contention that the said judgments of the Madurai Bench are not binding on the Court, he would rely upon the decisions in [2002] 4 SCC 638, [1983] 4 SCC 309, [2005] 13 SCC 744, [1984] 4 SCC 27, [2007] 8 SCC 242, [2007] 1 SCC 603, [1999] 3 CTC 722, [1991] 4 SCC 139, [2009] 15 SCC 58, apart from [1989] 1 SCC 101 and ultimately, it is his submission that inasmuch as both the Courts have not acted as per the law, the reasonings are to be ignored on the basis of per incuriam.
10.7. Regarding the eight writ petitioners, who have filed originally the writ petitions, for whom eight seats were directed to be kept vacant by order of this Court dated 21.7.2010, it is his submission that in spite of such order of protection passed by this Court, on the next day, namely on 22.7.2010, they have deliberately participated in the counselling and got seats in various self-financing colleges without any protection or direction from the Court and therefore, according to him, they have ceased to have any right over the eight seats directed to be kept vacant by this Court and therefore, it is his case that on the basis of the conduct of the said eight writ petitioners, the eight writ petitions are liable to be dismissed, since they have already secured seats in various self-financing colleges and even if revaluation is directed to be done, it should be done for the benefit of the other writ petitioners. For this he would rely upon the clause in the prospectus, especially Clause 27, which states that when once a candidate exercises an option, the same will be final and cannot be changed. He would also rely upon clause 31(d) to insist that the eight writ petitioners having exercised the option during the counselling cannot now try to get into the government stream and the court cannot ignore the contents of the prospectus and any other direction contrary to that would amount to directing the authorities to act against its own prospectus.
11. I have heard the respective counsel for the petitioners and the learned Additional Advocate General and given my anxious though to the issues involved in these cases.
12. On the facts of the present case, it is clear and it is no doubt true that these writ petitions are filed only after the learned Single Judge of the Madurai Bench has allowed the writ petitions filed by a group of students, who wrote their Higher Secondary Examination during March, 2010, directing the revaluation of question No.32 of Bio Zoology subject. The prayer in these writ petitions is for the purpose of granting five marks in respect of the petitioners, who have admittedly attempted to answer Question No.32 under Part II, Section C of Bio Zoology subject. It is no doubt true that on the factual analysis which has been explained, even by a fraction of increase in marks these petitioners would have much benefit of either admission in the Government Colleges or to private self-financing colleges in the MBBS/BDS Course in the year 2010-11.
13. On fact it is also clear the learned Single Judge of the Madurai Bench, whose decision is the basis for these writ petitions, has appointed three experts, viz., one Assistant Professor and two teachers working in the Higher Secondary Schools. Even though their particulars are not given, they were posed four questions by referring the answers given by the recognised book as answer No.1 and the answer prescribed by the Government in key answer as answer No.2, without disclosing the said nature of answers to the experts. The observation of the learned Judge of the Madurai Bench in respect of the three expert opinions shows that one expert, viz., Assistant Professor, has ultimately stated that the key answer is right, even though he expressed some doubt about the formation of the question, while the other two experts have opined that the key answers are wrong and the answers written by the students which are descriptive in nature are correct and deserve to be considered. However, after referring to all the three opinions, the learned Judge has come to a clear opinion that it is not clear as to whether the key answer is correct or not and therefore, the learned Judge has proceeded to refer to the prescribed text books. The following paragraphs of the judgment of the learned Single Judge of the Maduri Bench are relevant:
"25. According to him, answer No.1 viz., the answer written by the students, explains the general procedure for separation of chromosomes from human cells but did not describe the karyotypes of human chromosomes. Therefore, according to him, the answer No.1 written by the students needs more information. Nevertheless, he has opined that the correct answer is the combination of both the answer and finally, he has given that having regard to the question, the key answer is the right answer.
26. The Post Graduate teacher working in the Higher Secondary School gave her opinion that answer No.2 viz., the key answer is incorrect and answer No.1 the answer written by the students is correct and considering the marks allotted for the question which is only 5 marks the answer No.1 alone can be written and answer No.2 is the extended part of answer No.1.
27. The other expert, who is working as Head of Biology Department in the Higher Secondary School also opined that the answer written by the student is correct and he also opined that both the answers are correct and both of them should be given due consideration. Therefore, even after getting the expert's opinion, it is not made clear whether the key answer is correct or not and in this circumstance, we will have to go only by the text prescribed by the authorities for the students and also visualise the mind of a student, while writing the examination."
14. After applying the text book, the learned Judge has come to a conclusion that the answers given by the students are relating to the technique or process of karyotyping as prescribed in the text book and therefore, has come to a conclusion that the framing of question is not proper and that a reading of the question leads to confusion. The said finding of the learned Judge, which is the crux of the issue, is as follows:
"32. I have already stated that out of the three experts, two of them in their opinion, have stated that the answer written by the students is correct and one expert has stated that the question is ambiguous and though, the key answer is more appropriate and relevant to the question, the method of karyotyping is stated in the answer written by the student and therefore, opined that the answer for the question should have both method of karyotyping and the karyotyped information about Human chromosomes. Besides, the experts opinion, after going through the answer given by the students to that question, in my opinion, the answer given by the students deals with only the technique or process of Karyotyping as stated in the text prescribed by the respondents and the passage written by the students is found under the caption "Human Genetics Karyotyping". The key answer is found in the same book under the topic Karyotyping of human chromosomes and it is further stated that human chromosomes are classified into seven groups.
33. Therefore, a reading of two passages from the text prescribed by the authorities, in my opinion, as regards the question, the student has to explain briefly the karyotyping technique as well as classification of human chromosomes and the key answer cannot be fully correct unless it is accompanied by the process of technique of Karyotyping. I am also aware of the dictum laid down by the Honourable Supreme Court in the judgment reported in AIR 1983 SC 1230, in the case of Kanpur University and others vs. Samir Gupta and others, wherein it has been held that unless the key answer as incorrect and only for that purpose, I sought the assistance of three experts and from the opinions given by the three experts, I am able to arrive at the conclusion that the framing of question is not proper and it may lead to confusion in the minds of the students, whether the question requires the answer of technique of karyotyping or classification of Human chromosomes and looking at from the angle of the students, while writing the examination, in my opinion, such question which creates confusion in the mind of the students can be avoided. The normal psychology of a student, while writing +2 examination has to be taken into consideration, while framing the question. In my opinion, the question must be direct and factual and should not lead to confusion and the question should not be a combination of one or two questions. Further, when the experts are also not happy with the framing of the question, one could easily visualise the predicament of a student while reading the question."
15. Thereafter, the learned Judge has concluded that the key answer is not fully correct and the answers given by the students are also not fully wrong and ultimately, directed that the papers can be revalued in the light of the observations made by him in paragraph (40), which is as follows:
"40. As a matter of fact, one of the petitioner in W.P.(MD) No.8711 of 2010 has written the technique and also drawn the diagram of karyotyping of human chromosomes. Nevertheless, that student was not also given any mark. In my opinion, the petitioner in W.P. (MD) No.8711 of 2010 has written the technique as well as drawn the diagram showing the karyotyping of Human chromosomes and he has only omitted to write the different classification. Considering all these aspects, I am of the opinion that the students, who have written the theory or technique of Karyotyping, cannot be denied marks, as, in my opinion, the key answer is not fully correct and the answer given by the students are not fully wrong and therefore, certain marks can be given to the petitioners, who have written the theory part alone. I, therefore, hold that the answer papers of the petitioners can be revalued by the respondents in the light of the observations made by me in this judgment and accordingly, suitable marks can be awarded to the petitioners. With the observations, these writ petitions are disposed of in the manner stated above."
16. As stated above, the Division Bench of the Madurai Bench of the High Court in the writ appeal filed against the said order considered as if the learned Single Judge has concluded that the key answer is wrong, but directed that five marks to be given to the petitioners who attempted question No.32. Therefore, it is clear that while the learned Single Judge has directed revaluation based on his finding that if a descriptive answer is given such candidate will be entitled to a mark, the Division Bench has directed to give five marks to all the petitioners who have attempted question No.32.
17. The contention raised by the learned Additional Advocate General is that whether it is revaluation as directed by the learned Single Judge or direction to give five full marks as directed by the Division Bench, they are all based on the appreciation of the answers by the Court, which is not permissible as per the judicial dictum and therefore, the order of the learned Single Judge as well as the judgment of the Division Bench are not binding on this Court.
18. As stated above, as against the judgment of the Division Bench of the Madurai Bench of the High Court in the writ appeals, the respondents have filed review applications in Review Application (MD) Nos.81 to 93 of 2010, etc. batch and the Division Bench, by a common order dated 15.9.2010, has allowed the review applications for the reasons stated in paragraph (18) of the order, which is as follows:
"18. Having regard to our finding, we are of the considered view that the directions of the Division Bench to award full five marks to all the candidates, who have filed Writ Petitions, should be understood only to award proportionate marks depending upon the nature of answer given by each of the candidates, who have filed Writ Petitions, as directed by the learned Single Judge in paragraph No.40 of the order in the Writ Petitions."
19. The Division Bench in the review application has taken note of the fact that question No.32 asking for description about "the Karyotyping of human chromosomes" is not objective in nature and only if the question is objective type and the key answer is wrong there can be interference by the Court directing entire full marks to be awarded to the candidates who have attempted to answer by relying upon the judgment in [2005] 13 SCC 749, and has consciously held that the judgment of the Supreme Court in [2005] 13 SCC 749 is not applicable due to the reason that the question is descriptive in nature, by observing that even assuming that a candidate is unable to give correct answer, there should be a revaluation depending upon the nature of answer given by the candidate. The operative portion of the order is as follows:
"14. However, in the facts of the case, in our opinion, the said Judgment cannot be made applicable. Though there is a mistake in the key answer, the question asked being a descriptive in nature, even assuming that the candidates were prevented from giving correct answer or were made to give some answer on the basis of the text book, that answer must be revalued and marks should be awarded depending upon the valuation with respect to the answers"
20. The Division Bench in the review applications in that regard has also referred to the order of the learned Single Judge, who has found that the key answer is not fully correct and the answers given by the students are not fully wrong, and therefore, in effect, it was concluded that when the question is descriptive in nature, the answer given by the candidates which are descriptive as per the text book cannot be brushed aside and therefore, while setting aside the judgment of the Division Bench of the Madurai High Court dated 10.8.2010 in W.A.(MD) No.407 of 2010 awarding five full marks, has accepted the order of the learned Single Judge in W.P. (MD) No.7874 of 2010, etc., dated 16.7.2010 directing to revalue, giving appropriate marks to the candidates and only to that extent the review was allowed.
21. In such circumstance, I do not think it is proper for this Court to decide anything about the validity or otherwise of the order of the learned Single Judge of the Madurai Bench on the principle of either per incuriam or otherwise. Inasmuch as the Division Bench of the Madurai Bench of the High Court in the review applications has categorically found that the question is descriptive in nature by referring to the text books, as found by the learned Single Judge of the Maduri Bench, and directed revaluation on the basis that it would not amount to evaluation, there is no purpose to continue to hold the said judgment as per incuriam. On the celebrated principle of precedent, this Court is certainly bound by the decision of the Madurai Bench dated 15.9.2010 in the review applications filed by the respondents themselves, especially when the Division Bench has modified the earlier judgment of the Division Bench in dated 10.8.2010 in W.A.(MD) Nos.407 of 2010, etc., while concurring with the order of the learned Single Judge of the Madurai Bench of the High Court fully as per paragraph (40) of the order of the learned Single Judge, as elicited above, and therefore, the contention of the learned Additional Advocate General in this regard has to be necessarily rejected.
22. As far as the other contention about the eight writ petitioners, as stated above, this Court, by order dated 21.7.2010, has directed the respondents to keep eight seats in MBBS/BDS course vacant. On the next day, viz., on 22.7.2010, the said writ petitioners, who got the order in their favour, have no doubt participated in the counselling and out of the eight, six of them, as stated above, were allotted seats in self-financing colleges and it is also not in dispute that they should have paid necessary fees to the said colleges within one week from the date of the allotment order, which amount has also been admittedly paid and other two writ petitioners in W.P.Nos.15791 of 2010 and 15932 of 2010 are kept in the waiting list. The question to be decided as far as these eight candidates are concerned is as to whether they are eligible for the benefit of revaluation which has been conferred by the Division Bench of the Madurai High Court by order dated 15.9.2010 in the review applications in respect of similarly situated students.
23. The learned Additional Advocate General relies on Clause 27(1) of the Prospectus issued for MBBS/BDS Admissions for the year 2010-2011, which is as follows:
"27. (i) Option once exercised during counselling will be final and cannot be changed."
He would also rely upon another clause in the prospectus, namely Clause 31(d), which is as follows:
"31. (d) Those who obtained allotment order to a particular course in a particular category and college during the counselling but do not join within the stipulated time the particular course and college to which they are allotted will not be considered for admission at any point of time later for that particular category."
24. On a bare reading of the said clause, it is clear that it applies to cases where a student in normal circumstance appears for counselling and voluntarily chooses a college by exercising option and thereafter, he cannot go back from that and request for some other college. As far as Clause 31(d) of the prospectus is concerned, after obtaining allotment within the time stipulated therein, if the candidate fails to join in the college or course, he will not be considered for admission in the said category at any point of time in that year. On the face of it these clauses are applicable in normal circumstances of opting for a course and then deciding to go against that, which means that when once a candidate voluntarily opts a course in the counselling, he is forbidden from cancelling the option and exercising a different option. In such circumstances, it is no doubt true that this Court cannot direct the authorities to reconsider the case of the applicant for revoking the earlier option to consider a different option. Such direction would amount to directing the authorities to act against its own prospectus, to which no Court has any jurisdiction.
25. It is no doubt true that the contents of the prospectus are binding upon the candidates, just as it is binding upon the authorities, but that binding nature is only in respect of exercising the option or entering into admission in the point of view of the student, who has been given option in normal circumstance. Normally, the cases under the said Clause 27(1) arise relating to choosing of different disciplines and colleges during counselling and the students thereafter changing their mind for different discipline. In such circumstances, this Court is conscious that there can be no direction against the authorities to act against the stipulations in the prospectus. But, I am afraid that the said concept can be made applicable on the present factual scenario.
26. Admittedly, in the writ petitions filed by these eight writ petitioners which are pending, in which they have taken a substantial stand, namely, they are entitled to revaluation either by addition of full five marks or otherwise, an interim order has been passed by directing to keep eight seats vacant, but such interim order cannot be said to be in strict sense an order totally in favour of the petitioners. The interim order is an equitable order to protect the interest of the parties so that in the event of their succeeding, the benefit can be given to them. Therefore, it is only a protective order and can never be said to be a positive order in favour of the petitioners. In fact, the Hon'ble First Bench, in the judgment dated 26.8.2010 in W.A.Nos.1457 of 2010, etc. filed against the order of the learned Single Judge dated 21.7.2010 directing to keep eight seats vacant, has categorically stated that it is only to safeguard the interest of the parties as an interim measure and to preserve status-quo till final decision the eight seats are directed to be kept vacant. It is relevant to extract again the passage of the judgment dated 26.8.2010, which is as follows:
"13. It is a settled legal position that the object of granting interim order is to preserve statusquo till a final decision is arrived in the main case, and such interim orders would be granted when the three cardinal principles, namely primafacie case, balance of convenience and irreparable hardship is established. It is not in dispute that the counselling for the M.B.B.S./BDS is in progress. In such situation, if sufficient safeguard is not extended to the writ petitioners, in the event of their success in the Writ Petitions, the relief itself is liable to become infructuous as we are informed that after 30th September, 2010, the seats in these medical courses cannot be filled up."
27. In such circumstances, by participating in the counselling on the next day, namely on 22.7.2010, I am of the considered view, it does not mean that the petitioners have given up their right or claim made by them in these writ petitions. Probably, they have secured their interest by virtue of Clause 31(d) of the prospectus, elicited above. The students had no other go than joining in self-financing colleges as per the allotment in the second counselling. By virtue of the judgment of the Division Bench of the Madurai High Court dated 15.9.2010 in the review applications directing revaluation, certainly it cannot be said that these eight writ petitioners having joined in self-financing colleges, have lost their right.
28. This has to be looked into from another angle also, namely that by allowing the revaluation based on the merit of the individual performance of the writ petitioners as directed by the Madurai Bench in respect of these candidates who are similarly situated, it is not as if all the eight writ petitioners are going to get the adequate marks so as to make them able to acquire seats in the Government Colleges automatically. That is why the Division Bench in the review application has modified the earlier judgment in the writ appeal dated 10.8.2010 by which direction was issued to give five full marks to all candidates. Therefore, in the light of the decision in the review applications, by conferring such benefit of revaluation to these eight writ petitioners, it is not as if they are automatically going to be elevated to the next category to become allottees under the Government Colleges. It all again depends upon the revaluation which has to be done by the respondents and on the individual merits. Certainly by such revaluation, even by an increase of fraction of marks, if any one of the petitioners are able to go near the category by which they can get the seats allotted in the government college, it is not only prestigious on the basis of the merit, but also economically a great boom for such petitioners. By revaluation in respect of Question No.32, it is not as if enormous mark is going to be added. It is only a fraction of mark which is going to be added, by which neither the petitioners are automatically going to get benefit nor any other person who is entitled is going to be deprived of. Therefore, by allowing the revaluation of Question No.32 in respect of these eight writ petitioners, who have originally filed writ petitions, if few of them move to next category of selection to Government Medical Colleges, the seats which they have acquired by way of allotment in the private self-financing colleges are certainly going to be given to the other candidates waiting in the list on merit basis. Therefore, neither the merit is going to be a casualty, nor any other person who is eligible is going to be deprived by allowing the original eight writ petitioner to participate in the revaluation process.
29. Further, after filing of the said original eight writ petitions, many other writ petitions have also been filed, which are also taken together in these batch of cases. When, by virtue of the Division Bench judgment dated 15.9.2010 in the review applications, the other writ petitioners who have filed writ petitions as on date, as per the list, are entitled to revaluation, it is not known as to how the original eight writ petitioners should be deprived of such right only due to the reason that they were compelled to go for second counselling and accept the allotment. In my considered opinion, it cannot be said to be an acceptance which can be put against them by way of the principle of estoppel, especially when the writ petitions are pending.
30. As stated above, at the risk of repetition, it is to be reiterated that even by a fraction of mark the writ petitioners can be benefitted. At least in two cases belonging to the SC, MBC and BC community students, what they require is 0.50 marks and by 0.50 marks it is not as if an unqualified person is going to be selected. If such petitioner is going to be elevated for the next stage of grant of seat in the Government Medical College due to revaluation, the same should be treated as substantial justice to a deserving candidate. Therefore, I do not accept the vehement contention raised by the learned Additional Advocate General in this regard.
32. The next point is that many of the writ petitioners have in the prayers asked for grant of five marks. Inasmuch as they have attempted Question No.32, which is found to be vague and key answer is found to be not totally correct, as confirmed by the Division Bench of the Madurai Bench of the High Court in the order dated 15.9.2010 in the review applications and in the light of the said order modifying the original judgment of the Division Bench of the Madurai High Court dated 10.8.2010, by removing the grant of five marks to all candidates, they are not entitled to maintain the prayers in the strict sense.
33. It is no doubt true that such prayer cannot be granted on the face of it. But, in my considered view, inasmuch as all these writ petitioners have come to this Court and they have been fully heard, all of them are entitled to the benefit of the judgment rendered by the Division Bench of the Madurai High Court dated 15.9.2010 for the purpose of considering revaluation on merit, as stated above, and for the purpose of filling up of the eight seats which have been directed to be kept vacant or any other seats which are available in the final counselling which is to be held by the respondents, the relief has to be necessarily moulded and the writ petitions cannot be thrown out technically on the ground of the relief prayed for because the writ petitions with such reliefs were filed at the time when the Division Bench of the Madurai High Court in the writ appeals has passed a judgment granting five marks to the candidates who have attempted question No.32 and therefore, no fault can be attributed against those petitioners for framing such relief.
In such view of the matter, the writ petitions are ordered in the light of the common order of the Division Bench of the Madurai High Court in Review Application (MD) Nos.81 to 93 of 2010, etc. batch, dated 15.9.2010, with a direction to the respondents to revalue the answers of the petitioners in respect of Question No.32 in Part-II, Section-C of Bio Zoology Subject in the Higher Secondary Examination and award proportionate marks depending upon the nature of the answer given by each of the petitioners and thereafter, decide about the eligibility of those petitioners for admission to the First Year MBBS Course for the academic year 2010-2011, including the Government Colleges and self-financing colleges, as per the norms of the Government.
To:
1. The Director Department of Government of Examination Chennai 600 006.
2. The Secretary State Board of School Examination (Higher Secondary), Chennai 600 006.
3. The Director of School Education College Road, Chennai.
4. The Director, Director of Medical Education Kilpauk, Chennai 600 010.
5. The Secretary Selection Committee, MBBS/BDS Director of Medical Education Kilpauk, Chennai 600 010.
6. Medical Council of India Pocket 14, Sector 8 Dwarka Phase-I New Delhi 110 077