G. Prashanthi v. The Tamil Nadu Dr.MGR Medical University, rep.by the Registrar,69, Anna Salai, Guindy, Chennai – 600 032

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25-09-2012CORAM:THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.21066 of 2012G. Prashanthi...PetitionerVs.1.The Tamil Nadu Dr.MGR Medical University,rep.by the Registrar,69, Anna Salai, Guindy,Chennai – 600 032.2.The Controller of Examination,The Tamil Nadu Dr.MGR Medical University,69, Anna Salai, Guindy,Chennai – 600 032.3.Ragas Dental College,rep.by its Principal,ECR Road, Uthandi,Chennai – 600 119....RespondentsPetition filed under Article 226 of the Constitution of Indiapraying to issue a writ of mandamus directing the first and secondrespondents to re-value the petitioner's answer sheet in the MinorOral Surgery and Trauma in the MDS (Oral & Maxillo Facial Surgery)examination conducted by the first and second respondents in April,2012.For Petitioner: Mr.Sathish ParasaranFor Respondents 1&2: Mrs.Narmadha SampathO R D E RPetitioner, who appeared for MDS Examinations held in April,2012, is praying for issuing a writ of mandamus directing Dr.MGRMedical University, to re-value her answer paper in the subject MinorOral Surgery & Trauma in MDS (Oral & Maxillo Facial Surgery Br.)Examination.2.The brief facts necessary for disposal of this writpetition are that the petitioner passed BDS Examinations in MS RamiahDental College & Hospital, Bangalore, and she joined in the thirdrespondent Self-financing Dental College in MDS (Oral and Maxillo https://hcservices.ecourts.gov.in/hcservices/ Facial Surgery Br.) course. The third respondent college isaffiliated to Dr.MGR Medical University, first respondent. 'MinorOral Surgery & Trauma' is a theory paper in MDS course in the saidBranch and the required pass mark in the paper is 50 out of 100.According to the petitioner, 16 students had appeared in MDSexaminations in the said Branch, held in April, 2012, of which sixstudents are from the third respondent College, including thepetitioner. It is claimed by the petitioner that she had written theexamination to her satisfaction as the questions asked were straightquestions and she was confident of scoring high marks in the saidpaper.3.The results of the examinations were declared and thepetitioner failed in the said paper. 16 students appeared for theexamination from the entire University, of which 12 have failed inthe said paper, of which one student was subsequently declared passdue to award of grace marks. Petitioner passed in other three theorypapers, dissertation, clinical examination and viva-voce. In theMinor Oral surgery & Trauma subject, petitioner scored 44 out of 100i.e, six marks short of 50, which is the required pass mark. It isthe contention of the petitioner that her answer paper was notproperly valued and if re-valuation is ordered, petitioner isconfident of securing 65 to 70 marks. As the petitioner was awarded44 marks in the said paper, petitioner had been declared as failedstudent in MDS degree. Petitioner further states that the Universitystatute provides award of five grace marks and even if the said fivemarks are awarded, petitioner is still lacking one mark and accordingto the petitioner, statute of University do not prohibit re-valuationof answer sheets. Petitioner applied for copy of the answer sheet,which was supplied and after going through answer sheet, she isthoroughly confident of getting 65 to 70 marks. Hence petitioner hasfiled this writ petition with the above prayer to order re-valuation.4.The University filed counter affidavit contending that thepetitioner is a student of MDS course in third respondent College andshe appeared for MDS examinations in April, 2012 with registerNo.24091053. She has passed four subjects and failed in one subjectviz., Minor Oral Surgery & Trauma. Petitioner scored only 44 marksout of 100 and the minimum required marks for pass is 50 marks. Thevaluation system in PG courses is double-valuation of all the answerpapers of all the candidates. In the XVIII Standing Academic BoardMeeting held on 9.9.1999 it was resolved to continue the existingsystem of third valuation for PG courses if there is difference ofmore than 30% of marks awarded by the first and second valuer.Insofar as the petitioner is concerned, she was awarded 40 marks inthe first valuation and 47 marks in the second valuation. Hence boththe marks were added and divided by two and consequently petitionerwas awarded 44 marks out of 100. In the said subject the differencebetween first and second valuation being less than 30%, the paper ofthe petitioner was not sent for third valuation. https://hcservices.ecourts.gov.in/hcservices/

5.It is further stated in the counter affidavit that thepetitioner is also not entitled to get five grace marks as theshortfall marks is six in the said paper. In the respondentUniversity, there is no provision for re-valuation and the petitionerhas no right to claim any additional marks based on self-assessment.The double valuation provision was framed in the regulations undersections 44(1) and (2) of the Tamil Nadu Dr.MGR Medical UniversityAct, 1987. 6.In the additional counter affidavit filed it is furtherstated that the Examiners, who valued the answer paper of thepetitioner are fully qualified as the first Examiner has 15 years andnine months of teaching experience after obtaining PG degree courseand the second Examiner has 12 years of experience after obtaining PGdegree. It is also stated therein that similar writ petition filed bythe UG students were dismissed by this Court and therefore this writpetition is also liable to be dismissed.7.Mr.Sathish Parasaran, learned counsel appearing for thepetitioner submitted that in the absence of any prohibition containedin the University Statute, in appropriate case this Court can givedirection to re-value the answer papers, particularly when petitionerfailed only in one paper viz., Minor Oral Surgery & Trauma in MDScourse, that too due to lack of six marks of which five marks areentitled to be awarded as grace marks. The learned counsel alsorelied on the decision of the Supreme Court reported in (2007) 1 SCC603 : 2007 (4) LW 104 (SC) (President Board of Secondary Education,Orissa & Another v. D.Suvankar & Another) and of this Court reportedin (2001) 1 MLJ 180 (S.Sudarshan Kumar v. University of Madras) insupport of his contentions.8.Mrs.Narmadha Sampath, learned counsel appearing forrespondents 1 and 2 on the other hand submitted that re-valuationhaving not been provided under the Scheme of Examination/Regulationsor Statutes of the University, petitioner has no right to demand re-valuation, particularly when the answer paper of the petitioner wasalready valued by two Examiners and average mark was taken as finalmark. The learned counsel relied on the Supreme Court Judgmentreported in (2011) 8 SCC 497 (CBSE v. Aditya Bandopadhyay) andDivision Bench order of this Court made in W.P.No.14674 of 2012 dated8.6.2012 and argued that this writ petition is liable to be dismissedas the petitioner has no right to demand re-valuation and even theVice-Chancellor has no discretion to order re-valuation of any answerpapers.9.I have considered the rival submissions made by the learnedcounsel for the petitioner as well as respondents 1 and 2.10.Petitioner appeared for MDS examinations in four theorypapers, dissertation, clinical examination and viva-voce held in https://hcservices.ecourts.gov.in/hcservices/ April, 2012. Petitioner secured 44 marks in the paper 'Minor OralSurgery & Trauma'. In the subject Applied Basic Sciences, petitionersecured 52 marks out of 100; in Maxillo Facial Surgery she secured 55out of 100; and in the paper called Recent Advances in Oral andMaxillo Facial Surgery, she secured 55 out of 100. In dissertationshe got 65 out of 100. In clinical surgery, petitioner was awarded120 out of 200 and in Viva-voce, she secured 65 marks out of 100.11.It is not in dispute that the respondents 1 and 2 framedregulations for valuation of answer scripts of PG courses by twoEvaluators and as per the XVIII Standing Academic Board Meeting heldon 9.9.1999, if there is more than 30% difference between the marksawarded by the first and second Valuer, the answer script will besent for third valuation. The subject discussed and the resolutionpassed in the meeting reads as follows:"II(5)TO CONSIDER AND DECIDE TO ADOPT ANUNIFORM PATTERN OF VALUATION FOR ALL THEEXAMINATIONS CONDUCTED BY OUR UNIVERSITY.Resolved to have an uniform pattern ofCentral Valuation for all the Examinationsconducted by this University with effect from theSeptember, 1999 session onwards.II(6)POST GRADUATE EXAMINATION DECISIONREGARDING THIRD VALUATION FIXING DEFINITE MARKSBETWEEN (DIFFERENCE) TWO VALUATION.Resolved to continue the existing system ofthird valuation for P.G.Courses if the differencebetween the First and Second Valuation marksremain 30% (Thirty percentage)."It is clearly established that as per the said decision of theStanding Academic Board, the petitioner's theory paper in the subjectof Minor Oral Surgery and Trauma was valued by two examiners, whoawarded 40 and 47 marks respectively and the percentage of differencebeing less than 30%, the average of the said two marks was taken asfinal mark and the petitioner was awarded 44 marks. The minimum passmarks being 50, petitioner is lacking six marks to get pass in thesaid subject. It is the admitted case that only if the candidate isin need of five marks to get pass in anyone of the subject, theUniversity is competent to give upto five marks as grace marks inthat subject. Thus, the petitioner is not entitled to get any gracemark as the petitioner is lacking six marks.12.The issue as to whether a candidate can seek re-valuationof answer paper as a matter of right was already considered by theDivision Bench of this Court, in which I was a party, in W.P.No.14674 https://hcservices.ecourts.gov.in/hcservices/ of 2012, order dated 8.6.2012 and in the earlier Division Benchdecision reported in (2011) 1 MLJ 833 (V.Yamuna Devi v. RegistrarGeneral) wherein also I was a party. In the said order dated8.6.2012, the decisions of the Honourable Supreme Court reported inAIR 1984 SC 1543 (Maharashtra State Board of Secondary and HigherSecondary Education v. Paritosh Bhupeshkumar Sheth); AIR 2004 SC 4116(Pramod Kumar Srivastava v. Bihar Public service Commission); (2006)6 SCC 395 (K.H.Siraj v. High Court of Keral); (2007) 1 SCC 603 :2007 (4) LW 104 (SC) (President Board of Secondary Education, Orissa& Another v. D.Suvankar & Another); (2009) 1 SCC 599 (Sahiti v.Dr.N.T.R.University of Health Sciences); (2010) 6 SCC 759 (H.P.PublicService Commission v. Mukesh Thakur); (2011) 1 SCC 150 (VijendraKumar Verma v. Public Service Commission); (2011) 8 SCC 497 (CBSEv. Aditya Bandopadhyay); etc., were followed and the writ petitionfiled by a candidate, who appeared for written examinations forselection to Civil Judges (Junior Division) post was dismissed.13.The contention of the learned counsel for the petitionerthat there is no prohibition to seek re-valuation cannot becountenanced, because for considering the request for re-valuation,there must be a positive provision. As rightly contended by thelearned counsel for respondents 1 and 2, two Examiners, who valuedpetitioner's answer scripts are fully qualified to value the answerpapers and there is no dispute about their eligibility to serve asExaminers. For invoking the extra-ordinary jurisdiction as exercisedby this Court in the decision reported in (2001) 1 MLJ 180(S.Sudarshan Kumar v. University of Madras), petitioner has not madeout any case, as her marks in other subjects are 52 out of 100 in onesubject and 55 out of 100 in two other theory papers, which cannot betreated as extra-ordinary performance of the petitioner in othersubjects. In the above referred decision the performance of thecandidate was found as brilliant in all other subjects in B.E.(EEE)course, by this Court. In the first year he scored 83.8%, 87% in IIIsemester; 80.75% in IV semester; 83% in V semester and in the finalsemester also, except in one paper he scored more than 75% marks. Inthe paper Instrumentation System, he was awarded 30 marks. Thus, thesaid decision is clearly distinguishable. The said judgment wasrendered on the principle of equity and good conscious and to removethe injustice caused to the petitioner therein, who got 75% anddeclared pass with distinction after re-valuation. The followingdecisions of the Supreme Court justify such exercise of power in agiven case.(a)In Union of India and others v. R.Reddappa and another,(1993) 4 SCC 269, the Supreme Court has observed that once the Courtis satisfied of injustice or arbitrariness, then the restriction,self-imposed or statutory, stands removed and no rule or technicalityon exercise of power, can stand in way of rendering justice. https://hcservices.ecourts.gov.in/hcservices/ (b)In B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749, theSupreme Court approving the decision of the Orissa High Court inKrishna Chandra Pallai v. Union of India, (AIR 1992 Orissa 261)(FB)held as follows:"High Court being a Court of plenaryjurisdiction has inherent power to do completejustice between parties similar to SupremeCourt's power under Art.142."(c)In Air India Statutory Corporation v. United Labour Union,(1997) 9 SCC 377 = AIR 1997 SC 645 = 1997 Lab.L.C. 365: (1997) 1 LNN75, the Supreme Court has reiterated the Court's power under Art.226as follows:"No limitation except self imposed - the arm ofCourt long enough to reach injustice whereverit is found. The Court as sentinel on the quivive is to mete out justice in given facts."14.In the decision reported in (2007) 1 SCC 603 : 2007 (4) LW104 (SC) (President Board of Secondary Education, Orissa & Another v.D.Suvankar & Another) the Supreme Court explained the importance ofevaluation of answer papers by Examiners. In paragraphs 6 and 8 (inSCC) it is held thus:"6. Award of marks by an examiner is to befair, and considering the fact that re-evaluationis not permissible under the statute, the examinerhas to be careful, cautious and has a duty toensure that the answers are properly evaluated. Noelement of chance or luck should be introduced. Anexamination is a stepping stone on careeradvancement of a student. Absence of a provisionfor re-evaluation cannot be a shield for theexaminer to arbitrarily evaluate the answerscript. That would be against the very concept forwhich re-evaluation is impermissible.8. It has to be ensured that the examinerswho make the evaluation of answer papers arereally equipped for the job. The paramountconsideration in such cases is the ability of theexaminer. The Board has bounden duty to selectsuch persons as examiners who have the capacity,capability to make evaluation and they shouldreally be equipped for the job. Otherwise, thevery purpose of evaluation of answer papers wouldbe frustrated. Nothing should be left to show evenan apprehension about lack of fair https://hcservices.ecourts.gov.in/hcservices/ assessment. ......."15.The above decisions are indicative to the Examiners tovalue answer papers with seriousness and the Board/Universityconducting examinations must see that the Examiners are properlyqualified to act as Examiners and they must have capacity/knowledgeto value the answer papers properly and if any illegality is found inappropriate case the court may extend its arm to remove injustice.16.Considering the above facts and circumstances and in thelight of the judgments referred above, I am of the firm view thatpetitioner has not made out any case to order re-valuation of heranswer paper in the subject 'Minor Oral Surgery and Trauma' in theMDS (Oral & Maxillo Facial Surgery) Examinations conducted by thefirst and second respondents in April, 2012. Consequently the writpetition is dismissed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarvrTo1.The Registrar, Tamil Nadu Dr.MGR Medical University,69, Anna Salai, Guindy,Chennai – 600 032.2.The Controller of Examination,Tamil Nadu Dr.MGR Medical University,69, Anna Salai, Guindy, Chennai – 600 032. 1 cc to Mr.Sathish Parasaran , Advocate, Sr.No.21066W.P.No.21066 of 2012 ggk(co)pmk.4.10.2012