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1983 DIGILAW 27 (KER)

FEMINA v. STATE OF KERALA

1983-01-28

M.P.MENON

body1983
Judgment :- 1. After securing fairly high marks in the University examinations, the petitioners wrote the 'Common Entrance Examination' for the selection of candidates to the M.B.B.S. course. According to them, they had done exceedingly well; they were hoping to come out with distinction and secure sure selection. But they were not selected. No rank list was published. The authorities even refused to supply information about the ranks and marks obtained. The petitioners think there must have been some mistake or even malpractice somewhere. The machinery devised was not sufficiently foolproof: there might have been errors in assessment, counting or in tabulation. Had they been supplied with data regarding their performance and ranks, they could have discovered the true state of affairs. There are no provisions for revaluation and recounting, no arrangement for a second scrutiny where genuine doubts are raised. In the circumstances, they claim the following reliefs: (i) mandamus to the Special Officer to furnish information regarding the marks and ranks awarded/assigned to them; (ii) a direction for revaluation and/or recounting, or in the alternative, a scrutiny by the court itself, by calling for the answer papers; and (iii) order their admission to the course in question, on the basis of such a revised assessment. 2. Admittedly, there are no rules, regulations or orders providing for supply of mark and rank lists, or for revaluation and rechecking. The prospectus and the "instruction to candidates" are also silent on these aspects. Realising, however, that the selective process is highly competitive, and that the "rights" involved are in a sense valuable, I directed the respondents to make available some of the relevant data. And the following is what has been disclosed. 3. The petitioners in p: P. Nos. 181, 191 and 193 were competing for the merit quota from the Calicut University. They secured 186.173 and 64 marks and their ranks were 495, 975 and 1388 respectively. The last candidate admitted in the merit quota had obtained 191 marks, and his rank was 388. Going by the above data, the petitioners were nowhere near the winning post. The same must be said about the petitioner in O. P, 207 also, who was competing for the Muslim reservation quota (from among degree candidates): he got 165 marks and his rank was 1347, while the last candidate who secured admission was rank No. 562 with 173 marks. 4. The same must be said about the petitioner in O. P, 207 also, who was competing for the Muslim reservation quota (from among degree candidates): he got 165 marks and his rank was 1347, while the last candidate who secured admission was rank No. 562 with 173 marks. 4. The furnishing of the above particulars has the effect of granting the first relief prayed for by the petitioners; and only questions regarding the two other reliefs survive for consideration. 5. Should there be a machinery for revaluation and recounting? If it is not there in the existing scheme of things, can this Court direct that some such machinery should be provided? Or can this Court make a scrutiny of its own. by calling for the relevant papers? It seems to me that the question whether there should be a machinery for a second scrutiny or not is a matter of policy, and not a matter of law. Art.14 may probably be attracted if the mode of assessment is so arbitrary and ill-conceived as to suggest that it is of no use at all for an honest evaluation of comparative merit; but the averments in the writ petitions are totally insufficient even to seriously suggest that such is the case here. Provisions for a second scrutiny may be desirable, but the court cannot impose its opinion on those charged with the duty to select. The circumstances under which Entrance Examinations came to be conducted are also relevant in this context. Till the year 1982, admissions to the Medical Colleges were based on marks obtained in the University Examinations. The universities have a fairly elaborate machinery for ensuring the secrecy and the sanctity of the assessments made by them. That includes provision for issue of mark lists, and revaluation in appropriate cases. It was however found that despite the elaborate safeguards built in, malpractices were being committed and that it was not safe to go entirely by the assessments made by them, in the fierce and cutthroat competition for a ticket to the professional colleges. The Entrance Examination was then thought of as a second filtering process Should there be a third and a fourth, in the relentless pursuit for perfection? The results of the University examinations are themselves published very late. Those who get 50% of the marks in the relevant subjects alone can compete in the Entrance test. The Entrance Examination was then thought of as a second filtering process Should there be a third and a fourth, in the relentless pursuit for perfection? The results of the University examinations are themselves published very late. Those who get 50% of the marks in the relevant subjects alone can compete in the Entrance test. Attempts to pick holes in this examination can only further delay matters, making the whole exercise counter-productive, by postponing commencement of classes in the professional colleges still further. Keeping seats vacant pending adjudication of complaints, adding a few seats to satisfy legitimate aspirants, and improvisation of other measures for all-round satisfaction, have all been tried. It may perhaps be a cynical to suggest that the ills of our society are bound to reflect in every system of examination or selection, however foolproof the arrangements are; but will it not be impractical to think that the writ jurisdiction of this Court is a panacea for all such evils? 6. Judicial scrutiny will be possible, if at all, only when certain minimum fact-situations are available; proceedings under Art.226 cannot be investigatory or inquisitorial, solely based on doubts or suspicions entertained by a petitioner. And reading the four Original Petitions before me, I see nothing but doubts emanating from subjective self-assessment. On the other hand, the Advocate General took pains to explain the procedure adopted and the safeguards provided. Each answer paper is being valued by two different examiners, and it is said that a third also comes into the picture if serious differences are noticed. There is an elaborate system of coding and decoding, to maintain secrecy. Counting and tabulation are done both manually and by aid of computers, and when disparities are found in stray cases, they are again manually checked up. A preliminary list is first prepared, and there is a second verification before it is finalised. It is not just one person valuing and a machine doing the rest of the job; revaluation, recounting and rechecking are involved at every stage. On the materials available, therefore, I am unable to bold that the system is inherently defective, or that the doubts and apprehensions of the petitioners have any foundation other than on a mere hope that something may come out if the exercise is undertaken again. On the materials available, therefore, I am unable to bold that the system is inherently defective, or that the doubts and apprehensions of the petitioners have any foundation other than on a mere hope that something may come out if the exercise is undertaken again. I also find that similar complaints were turned down by a Division Bench of this Court in O. P. No. 2418/82, when the efficacy of the first Entrance Examination was challenged. 7. Reliance is however placed on the decision of the Bombay High Court in Paritesh v. M.S.,B.,S. & H S. Education (AIR. 1981 Bom. 95) to contend that the right of an examinee to inspect his answer script has been recognised by courts. Regulation.104(3) of the Maharashtra H S.E.B. Regulations prohibited inspection of answer books and other connected papers by the candidates, and the Court thought that the said provision was unreason-ble and was capable of defeating some other provisions of the Regulations. Access to answer books had to be permitted even in the absence of any specific provision, it was said, to enable the examinee to verify whether the book was his own, whether supplementary answer papers were tagged, whether all the answers were evaluated and whether errors or manipulations bad crept in. As an abstract proposition that arbitrariness and caprice on the part of valuers and tabulators should be eliminated, no one could probably quarrel with the above formulation; but where the system itself provides for checking, rechecking and cross-checking, and is in effect a second verification for selecting the most talented, the proposition can have only limited application. The Public Service Commissions all over the country conduct thousands of examinations a year, involving millions of candidates for selection to public appointments, and no one has so far suggested that all the candidates who compete should have the right to inspect their answer books. Departmental Promotion Committees and other selection bodies perform similar functions, but nowhere has it been held that their assessments should be a matter of satisfaction for the aspirants also. Specific complaints that the guidelines are overlooked or that the criteria are misapplied may occasionally he examined by courts but judicial excursions into those field? have never been based on mere apprehensions. Rules or fair play may be part of the expanding horizon of natural justice, but as Mathew J. said in Union of India v. M.L. Capoor (AIR. Specific complaints that the guidelines are overlooked or that the criteria are misapplied may occasionally he examined by courts but judicial excursions into those field? have never been based on mere apprehensions. Rules or fair play may be part of the expanding horizon of natural justice, but as Mathew J. said in Union of India v. M.L. Capoor (AIR. 1974 SC. 87): "On a balance of all the relevant factors, I do not think it expedient to extend the horizon of natural justice involved in the audi alteram partem rule to the twilight zone of mere expectations, however great they may be". Beg J. (as he then was) said is the same case: "Candidates are not expected to sit in judgment over evaluations of their own merit and of others. The "cult of the quasi", as it has been derisively called by those who are skeptical of its extension beyond certain reasonable and practical limits, cannot be carried to such absurd lengths as to make it necessary for candidates at an examination to put forward their own assessments of their own merits, as against those of rival candidates. Just as the answers given by candidates at a written test reveal respective merits, so also the service records, during the preparation of lists by selection, speak for those whose records are examined. The process of selection of respective records of service is more akin to that of an examination of candidates than to a quasi judicial proceeding." His Lordship also indirectly referred to possibilities of abuse and mistakes, but felt that the presumption must be in favour of proper discharge of duties: "It is true that where merit, which is difficult to judge, is laid down as the sole test for promotion, the powers of selection become wider, and they can be abused with less difficulty. But the machinery provided so as to ensure impartiality cannot be assumed to so operate as to produce unjust results. The presumption is that the authority concerned will discharge its obligations with full ealisation of its implications, and honestly". In Jawaharlal Nehru University v. Narwal (AIR. 1980 SC. But the machinery provided so as to ensure impartiality cannot be assumed to so operate as to produce unjust results. The presumption is that the authority concerned will discharge its obligations with full ealisation of its implications, and honestly". In Jawaharlal Nehru University v. Narwal (AIR. 1980 SC. 1667), the Supreme Court said: "in the absence of allegations of bias and mala fides we do not think that the declaration by an academic body that a student's academic performance is unsatisfactory, is liable to be questioned in any event on the ground that the student was not given an opportunity of being heard. Large and expanding, perhaps rightly, as the field of natural justice and fair dealing is. necessary and wholesome as hearing an affected party even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of audi alteram partem." Rules of natural justice, fairplay in action, reasonableness of approach and the like are useful tools in the hands of courts for correcting situations where injustice is writ large on their face; but frequent use on unfriendly soil can only blunt their edges. Natural justice may now be on the ascendancy, but it cannot be forgotten that the very concept of natural law, as a mandate from heaven, was being identified by ancient emperors with their whims and fancies, to impose their cruel will on the hapless subjects. Evaluation of the performance of a student bears little resemblance to the judicial or administrative fact-finding process involved in disciplinary determinations, to which the courts have always been attaching requirements of fair procedure. 8. I my also notice that in Khandelwal v. Chiirman, B S. E. and others (A1R. 1983 Raj 16), the wide proposition that every student has an inherent right to have his answer paper revalued, was not wholly approved. 9. The last submission of counsel is that this Court itself has created a precedent in the matter of calling for answer papers and arranging for their revaluation No doubt, a Division Bench of this Court had called for certain answer papers, in O. P. No. 5590/81 and other connected cases disposed of by a common judgment on 23-12-81. But they were not called for on the assumption that revaluation by court would be a substitute for the assessments made by the University. But they were not called for on the assumption that revaluation by court would be a substitute for the assessments made by the University. In the cases before their Lordships of the Division Bench, there were specific allegation of malpractices, including substitution of answer books, and when the court was prima facie satisfied that substitutions might have taken place, certain papers were summoned to find out whether there was any real basis for the complaint. This is what the Court said in that connection: When we are satisfied prima facie that the matter requires to be looked into and the plea of malpractice is not made recklessly, it is our duty to satisfy ourselves about it in the best manner possible... We made it clear that the purpose of appointing experts to assist us in going through some of theanswer papers was not to revalue the papers. That would not be our function. It is only with a view to see what were the chances for substitution of answer papers, what is the mode and nature of valuation and also generally to acquaint ourselves of the process adopted in the matter of valuation of answer papers... ...We wanted to choose some of the papers at random No doubt there are variations even ranging into ten per cent which would materially affect the result of the selection if the marks judged by the experts were to be adopted. But as we have said, that being not our purpose, we do not advert to it." The above observations make it sufficiently clear that far from suggesting that this Court should revalue the answer book of every dissatisfied student as a matter of course, in exercise of its power under Art.226, their Lordships were only attempting to make a random and limited probe to find out whether there was a genuine foundation for the allegations made before court. For the reasons stated above, I find no grounds to interfere, and the writ petitions are accordingly dismissed.