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2015 DIGILAW 14 (JK)

Shravani Sareen v. University of Jammu

2015-02-06

MOHAMMAD YAQOOB MIR, N.PAUL VASANTHAKUMAR

body2015
Judgment : N. Paul Vasantha kumar, C.J. 1. This appeal is preferred challenging the order of the learned single Judge made in OWP.No.210 of 2014 dated 29.11.2014, by which the learned single Judge dismissed the writ petition filed by the appellant seeking direction to quash the communication No.Re-Eval/134458 dated 3.12.2013 issued by the respondent University and for a further direction to issue formal certificate of marks/marks card of the appellant for second professional MBBS Course showing the marks awarded after allowing revaluation of two papers viz., Micro-Biology and Forensic Medicine and also to direct the respondents to show the appellant to have qualified the examination of second professional MBBS from Session 2012. 2. The brief facts of the case put before the learned single Judge by the appellant was that the appellant was selected to undergo MBBS course for the academic Session 2009-2010 at Acharya Sri Chandar College of Medical Sciences, Sidhra, Jammu, being a candidate belonging to Hindu Minority Community. After joining the course she has passed her first year professional course and appeared in Session 2011-2012 in second professional MBBS course, April 2012. When the results were declared for April 2012 examinations, the appellant was shown in the category of re-appear in Micro Biology and Forensic Medicines papers. The following are the marks awarded to the appellant: Sl.No. Subject Maximum Marks Marks obtained 1. Micro-Biology (i) Theory & Oral (ii) Practical Total 110 40 150 52 28 80 2. Forensic Medicine (i) Theory & Oral (ii) Practical Total 60 40 100 29 23 52 In the subject of Micro-Biology the appellant is in short of two marks and in the subject of Forensic Medicine she lacks one mark. 3. The appellant having not satisfied with the award of marks for the aforesaid two papers, applied for re-checking of the marks in the prescribed format and on 29.11.2012 the result of re-checking was informed stating that there is no change in the results. The appellant having not satisfied with the award of marks as well as the result intimated on re-checking, applied for copies of answer scripts of the above mentioned papers viz., Micro-Biology and Forensic Science. On 29.10.2012 the copies of the answer scripts were furnished to the appellant. The appellant having not satisfied with the award of marks as well as the result intimated on re-checking, applied for copies of answer scripts of the above mentioned papers viz., Micro-Biology and Forensic Science. On 29.10.2012 the copies of the answer scripts were furnished to the appellant. Having not satisfied with the award of the marks for the answers written by her, she had applied for further re-valuation of the papers /answer scripts to the respondent University through the Controller of Examinations. It is stated in the Regulation that revaluation will be done by an independent Examiner. The final result after revaluation shall be the best of the two scores obtained by the student after revaluation/original valuation. It is also stated that the candidate has to accept the revaluation result as final and irrevocable, whether favourable or unfavourable and no further revaluation shall be allowed. The appellant was telephonically called to the Revaluation section of the University and on instructions of the concerned officials, she filled up the Re-valuation form and also deposited the requisite fee of Rs.2,880/- in J&K Bank Branch of the University of Jammu. Still the results of re-valuation was not declared. Hence she submitted an application under the provisions of RTI Act, 2005, before the respondent University on 2.4.2013 and no action having been taken she filed appeal before the Appellate Authority under RTI Act, 2005, which was also not considered. The appellant thereafter went before the State Information Commission and during pendency of the appeal before the J&K State Information Commission, she received a communication dated 8.10.2013 along with the result of revaluation of two papers stating that as against Micro-Biology Paper-II she was awarded 16 marks against the 13 marks originally awarded, and the revaluation marks for Forensic Medicine remains the same. The communication showing the marks awarded in second re-evaluation by the 2nd Evaluator reads as follows: “UNIVERSTY OF JAMMU No:-Re-Eval. 13/4115-1 Sh. Vivek Slathia The Public Information Officer, University of Jammu. Jammu. Sub:- Information under RTI J&K Act-Shravani Sareen. Sir, Kindly refer to your office letter No.PIO/JU/12/10000 dated 04/10/13 on the subject cited above, the parawise reply is as under:- Question Answer No The result has not been declared but however the 2nd Re-evaluation has been got done from another expert and the following marks are awarded by the 2nd evaluators. S.No. Name of the Subject Part 2nd Re-evalautors Marks 1. S.No. Name of the Subject Part 2nd Re-evalautors Marks 1. Microbiology I 22 II 16 instead of 13 2. Forenesic Medicine I 06 II 11 03. Sick The result cannot be formally declared as there is no provision of Re-Evaluation in MBBS course. Thanking you. Yours faithfully, Sd/- Dy. Registrar (Re-Eval) Copy to:- Sr. P.A. to Controller of Examinations for the information of Controller of Examinations.” 4. As per the University Regulations the appellant is entitled to get one grace mark for the 4th paper as she has passed in other three papers. As stated above, in Forensic Medicine paper, appellant was lacking only one mark for getting pass mark for the Session 2011-2012. The appellant also appeared in the supplementary examination for the above two papers and she was also declared as pass. By order dated 3.12.2013 the appellant was intimated by the University that the application seeking re-valuation is treated as closed with a direction to have the re-valuation fee refunded. The said order was challenged in the writ petition with consequential prayers. 5. The respondent University contended that in terms of Chapter XL VII of the University statute, there is no provision for revaluation of MBBS examination papers normally. Further re-valuation of MBBS papers can only be ordered in exceptional cases with prior approval of the committee constituted in that behalf comprising Dean of Faculty, Convener of Board of Studies and the concerned Head of the Department. Application seeking re-valuation of two papers above mentioned of the appellant was not placed before the Committee for approval and the Committee also did not take any decision. In short, the case of the appellant is that the expert Committee having not recommended for re-valuation, the appellant has no right to claim re-valuation or claim any benefit arising out of the awarded marks in the re-valuation. 6. The learned single Judge dismissed writ petition relying upon the statute of the University as well as two decisions of the Hon’ble Supreme Court against which this writ appeal is preferred. 7. The principal contention of Mr. 6. The learned single Judge dismissed writ petition relying upon the statute of the University as well as two decisions of the Hon’ble Supreme Court against which this writ appeal is preferred. 7. The principal contention of Mr. F. A. Natnoo, learned counsel appearing for the appellant is that the appellant having applied for re-valuation, which is also entertainable even as per the counter affidavit filed by the University, and the application having been entertained, and the qualified Examiner having revalued and awarded three more marks for the answer paper of Micro-Biology, she is entitled to get a pass in Micro-Biology in Second MBBS course, and the appellant having secured pass in three subjects out of four, she is also entitled to get one grace mark for the paper Forensic Medicine and as such she is entitled to get pass certificate declaring that she has passed in Second Professional MBBS Session April 2012. The learned counsel also submitted that the appellant is pressing the prayer in writ petition as in the premier institutions like AIMS, PGIMER, Chandigarh, etc., the second attempt candidates are not eligible to apply in PG course and even if eligible, selection marks will be reduced to the candidates, who failed in any subject. 8. Mr. W. S. Nargal, learned counsel appearing for the respondent University on the other hand justified the order of the University and the order passed by the learned single Judge dismissing the writ petition and contended that the application submitted by the appellant was only for re-checking and a reply was given and thereafter even though the appellant applied for re-valuation of two papers, the Expert Committee has not recommended for re-valuation of those two papers as per University Statute, and therefore the appellant is not entitled to seek for re-valuation of two papers and the mistake committed by the University in revaluing the papers without the recommendation of the Expert Committee cannot be taken advantage by the appellant. The learned counsel also argued that the appellant cannot seek remedy of revaluation or consequential mark sheet based on the re-valuation made by the University by mistake. 9. We have gone through the submissions of the learned counsel for the appellant as well as the University and perused the relevant provision in the Statute along with the judgments of the Hon’ble Supreme Court cited before the learned single Judge in his order. 10. 9. We have gone through the submissions of the learned counsel for the appellant as well as the University and perused the relevant provision in the Statute along with the judgments of the Hon’ble Supreme Court cited before the learned single Judge in his order. 10. The point arises for consideration in this writ appeal is as to whether the University is justified in denying mark statement/pass certificate to the appellant, after conducting re-valuation of the appellant s answer papers in Micro-Biology and Forensic Medicine. 11. The facts viz., appearance of the appellant in the Second MBBS Professional examinations in Session 2012, her failure to secure pass marks in two papers viz., Micro-Biology and Forensic Medicine, her submission of application for re-checking and the intimation given by the University stating that there is no change in the marks, and that the appellant applied for re-valuation in the prescribed format and also paid re-valuation fee are not in dispute. In the re-valuation application an undertaking is also signed by the appellant stating that she will abide by the marks to be awarded during re-valuation, which is one of the requirement to be furnished by the candidate seeking re-valuation as per the University statute. Relevant extract of Regulation-I relating to re-evaluation of examination reads as follows: “Re-evaluation of answer books shall be permissible in the following examination conducted by the University: a) B.A/B.Sc./B.Com. b) Master’s Degree and other Post graduate diploma courses taught in the University excluding M.B.A., M.C.A., LL.M. c) LL.B. d) B.Ed. e) M.Ed. f) B.Lib. Science g) M.Lib. Science h) O.C.. and M.I.L.Examination i) Such other examination/s as the University council may approve from time The Regulation adopted by the University Council in its meeting held on 15.11.2010 under item No.70.25 by virtue of the powers conferred under above extracted Regulation-I(i) reads thus, “1. Reg supply of photogopy/photocopies of answer script/s of Courses in which there is no re-evaluation facility:- (i) Photocopy/photocopies of the answer script/s be provided in a course where there is no re-evaluation facility on trial basis for a period of one year. (ii) The candidate/s must apply for the photocopy/photocopies of the answer script/s within ten days after the declaration of the result on the prescribed Proforma to be devised by the Controller of Examination in this regard. (ii) The candidate/s must apply for the photocopy/photocopies of the answer script/s within ten days after the declaration of the result on the prescribed Proforma to be devised by the Controller of Examination in this regard. (iii) There shall be a fee of Rs.300 per answer script (or as per the fee prescribed by the University from time to time which shall be deposited by the candidate/s in a separate account head to be operated upon by the Controller of Examinations to meet the expenses to be incurred in this regard. (iv) The application form shall be accompanied by a self addressed cloth lined envelope of the size 27 inch x 32 inch bearing postal stamp worth of Rs.55/- in case of one/two answer script/s, Rs.70/- in case of three/four answer scripts and multiple of such envelopes in case of the answer scripts are more than four or such postage as is applicable at. (v) The concerned Branch Officer shall be the Officer responsible for ensuring the dispatch of the Photocopied answer script to the candidates within the prescribed time. The concerned Store Keeper (dealing Assistant in custody of the answers scripts) shall be paid Rs.10 per answer script as remuneration for handing the answer script while the branch officer shall be paid Rs.15 per answer script. The Branch Officer shall get the answer script photocopied from one of the authorized photo-copier Kiosks on the University approved rates in his/her presence after ensuring the crossing of the blank pages and defacing the front page to the extent of the code no. and identity of the Evaluator. (vi) A separate register shall be maintained by every Branch officer with full particulars in whose case the answer script shall be taken out and placed back into the office record. (vii) In case a candidate again approaches with the grievance with regard to the evaluation of his/her answer script, the Committee consisting of the Dean of the faculty; Convener of Board of Studies; and concerned Head of the Department shall be recommending authority with full justification if the second evaluation is to be undertaken. (vii) In case a candidate again approaches with the grievance with regard to the evaluation of his/her answer script, the Committee consisting of the Dean of the faculty; Convener of Board of Studies; and concerned Head of the Department shall be recommending authority with full justification if the second evaluation is to be undertaken. However, in such case an undertaking of the candidate shall be taken that he shall abide by the verdict of the second evaluation whether it is to his/her advantage or otherwise.” From the perusal of the above provisions, which are binding on the University as well as the appellant, it is evident that re-valuation of the MBBS course papers are not prohibited and the same can be ordered on the basis of the recommendation to be made by the Committee constituted in that behalf comprising Dean of Faculty, Convener of Board of Studies and the concerned Head of the Department and a further condition is that the candidate concerned shall give an undertaking that he/she shall abide by the verdict of the second evaluation, whether it is to his or her advantage or otherwise. Thus, it is evident that the candidate is taking a chance/risk by applying for re-valuation and the Committee has to recommend as to whether the request of the candidate is just and reasonable. It is an admitted position that with respect to a candidate by name Heena Naz, this Court in OWP No.628 of 2013 order dated 29.6.2013 ordered re-valuation of answer papers though there was no decision to order revaluation initially by the Committee, and the same was also accepted by the University and the re-valuation mark was awarded to the said candidate. The learned counsel for the appellant cited few other instances which were also not denied by the learned counsel for the University. Revaluation was made to a candidate named Shabana Balquees in July, 2012 Examination. Thus, the appellant is discriminated as rightly argued by the learned counsel for the appellant. 12. The learned counsel for the appellant cited few other instances which were also not denied by the learned counsel for the University. Revaluation was made to a candidate named Shabana Balquees in July, 2012 Examination. Thus, the appellant is discriminated as rightly argued by the learned counsel for the appellant. 12. It is relevant to note at this juncture that even though application for re-valuation along with the undertaking signed by the appellant was submitted, the same was not placed before the Committee and without placing the same before the Committee, the University conducted re-valuation with a fully qualified Examiner and the marks secured by the appellant in the re-valuation was also communicated, wherein it was stated that the appellant secured three more marks in the subject of Micro-Biology and there was no change in the marks in the subject of Forensic Medicine. Thus, it is manifest that not placing the matter before the Expert Committee is only a procedural violation committed by the University for which the appellant cannot be blamed. The fact that in the re-valuation the appellant secured more marks than the original marks awarded in the first valuation shows that the first valuation was made not in a proper manner with application of mind and the appellant is justified in seeking re-valuation. It is a settled proposition of law that even a fraction of mark in the University examination or in the competitive examination can make or mar the career of the student/candidate. 13. The decisions relied on by the learned counsel for the respondent University to support his stand are not applicable to the facts of this case as the respondent University Statute nowhere prohibits the conduct of re-valuation and there is a specific provision available in the Statute to order re-valuation. In fact, in exercise of that enabling provision some candidates appeared in MBBS degree examinations were given the benefit of re-valuation as stated supra. It is not in dispute about the proposition of law that if there is no provision for seeking revaluation the Court cannot compel the Examining Body to order revaluation normally. 14. It is a well accepted proposition of law that when technicality and substantial justice are pitted against each other, the Court should always lean towards substantial justice. It is not in dispute about the proposition of law that if there is no provision for seeking revaluation the Court cannot compel the Examining Body to order revaluation normally. 14. It is a well accepted proposition of law that when technicality and substantial justice are pitted against each other, the Court should always lean towards substantial justice. The Supreme Court reminded all the Courts that un-necessary and avoidable technical impediments should not be introduced by virtue of interpretative process. 15. Thus, on the facts and circumstances of this case, particularly taking note of the re-valuation which was already made through a competent Examiner and the marks having been disclosed, the appellant is entitled to get the marks awarded in the re-valuation and other certificates. 16. In such circumstances, the decision of the University, which was affirmed by the learned single Judge is set aside and the appeal is allowed with direction to the University to issue the mark certificate to the appellant as she passed in the second professional MBBS course from Session April 2012 and other relevant certificates, within a period of four weeks from the date of receipt of copy of this order. The appellant shall surrender the marks statement of the supplementary examination to the respondent University. 17. The appeal stands allowed with the above directions. 18. No costs.