Allowed

Nimmy Majo v. the Kerala University of Health Science

Kerala HC23 Mar 2017WP(C)/252/2017

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging a university examination result based on the regulation's calculation method for third valuations. The court held the 'average of nearest two marks' rule was arbitrary as it caused failure due to inconsistent initial valuations. The petition was allowed, the result was quashed, and the university was directed to publish fresh results under ame

What did the court decide?

The writ petitions are allowed; the impugned results are quashed; the University is directed to publish fresh results within two weeks under the amended Regulations.

Nimmy Majo Vs the Kerala University of Health Science — Education and Admissions | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939

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WP(C).No. 252 of 2017 (F)

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PETITIONER(S):

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NIMMY MAJO, D/O. MAJO KURIAKOSE, FINAL YEAR B.D.S STUDENT, GOVERNMENT DENTAL COLLEGE, KOTTAYAM, RESIDING AT VICHATTU, OPP. TO PRIVATE CLUB, RIVER VIEW ROAD, THODUPUZHA.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT(S):

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1. THE KERALA UNIVERSITY OF HEALTH SCIENCE, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR, PIN - 680 020.

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2. THE VICE CHANCELLOR, THE KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR - 680 020.

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3. THE CONTROLLER OF EXAMINATIONS, THE KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR - 680 020.

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4. THE CHAIRMAN, BOARD OF ADJUDICATION, GRIEVANCE CELL, THE KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR (THE PRO VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR) - 680 020.

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BY ADV. SRI.P.SREEKUMAR, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.2.2017, ALONG WITH WPC. 996/2017, THE COURT ON 23-03-2017, DELIVERED THE FOLLOWING:

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SKG

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WP(C).No. 252 of 2017 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 THE TRUE COPY OF ORDER NO. ACII/1795/REGULATIONS/KUHS/2011 DATED 15.11.2011 ISSUED GENERAL REGULATIONS 2011.

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P2 THE TRUE COPY OF THE CALCULATION OF THE ANSWER PAPER OBTAINED BY THE PETITIONER FROM THE RESPONDENTS.

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P3 THE TRUE COPY OF THE EXAMINATION RESULTS OF THE PETITIONER ISSUED BY THE RESPONDENT.

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P4 THE TRUE COPY OF THE APPLICATION DATED 04.6.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT AND ITS POSTAL RECEIPT.

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P5 THE TRUE COPY OF THE JUDGMENT DATED 08.6.2016 IN WPC NO. 19685/2016 OF THIS HON'BLE COURT.

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P6 THE TRUE COPY OF THE ORDER NO. 8361/DEENSA/KUHS/2015 DATED 09.8.2016 PASSED BY THE 4TH RESPONDNET TO THE PETITIONER.

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P7 THE TRUE COPY OF THE REPLY NO. 8390/RTI/ADMN.C/KUHS/2016 DATED 08.9.2016 ISSUED BY THE RESPONDENT UNIVERSITY TO SRI.V.B.AJITHAN UNDER RIGHT TO INFORMATION ACT.

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P8 THE TRUE COPY OF THE JUDGMENT DATED 23.9.2016 IN WPC NO. 29304/2016 OF THIS HON'BLE COURT.

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P9 THE TRUE COPY OF THE JUDGMENT DATED 16.11.2016 IN WPC NO. 27561/2016 OF THIS HON'BLE COURT.

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P10 THE TRUE COPY OF THE ORDER NO. 10960/DEAN SA/KUHS/2016 DATED 13.12.2016 PASSED BY THE 4TH RESPONDENT.

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RESPONDENT(S)' EXHIBITS

NIL

/TRUE COPY/

P.S. TO JUDGE

SKG

P.B.SURESH KUMAR, J.

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W.P.(C) Nos.252 & 996 of 2017

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Dated 23^rd February, 2017.

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J U D G M E N T

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The issue raised for consideration in both these writ petitions is one and the same and as such, they are disposed of by this common judgment. The facts are identical and it is therefore suffice to mention the facts of one case for the purpose of considering the issue raised. The facts referred to are, the facts in W.P.(C) No.252 of 2017.

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The petitioner had undergone and completed BDS course in Governmental Dental College, Kottayam, affiliated to the first respondent University. The petitioner was admitted for the said course during 2010 and she had completed the course during 2016. The petitioner passed all the papers of her first, second and third year of the course. As far as the fourth year papers of the course are concerned, the petitioner had failed in

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WPC 252 & 996 of 2017

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one subject in the Part II examinations. The paper in which the petitioner failed is Conservative Dentistry and Endodontic. Ext.P1 is the examination Regulations of the first respondent, hereinafter referred to as 'the University'. Ext.P1 Regulations has been framed by the governing council of the University. Clause 23 of Ext.P1 stipulates the valuation strategy. Clause 23 provides for double valuation of answer papers in two different centres/centralised valuation camps. It also provides that if the variation in marks is more than 15% of the total marks, the paper should go for a third valuation. It further provides that the average of the marks obtained for double valuation is taken as the original mark of the student. It clarifies that in case of answer papers going for third valuation, the average of the nearest two marks is taken as the final mark.

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The petitioner secured 48 marks for the subject referred to above in the first valuation and 67 marks in the second valuation. Since the difference exceeded 15% of the total marks, the said paper of the petitioner was sent for third valuation. The third valuer, however, awarded only 36 marks to

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WPC 252 & 996 of 2017

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the petitioner. Going by the Regulations referred to above, the petitioner is entitled to only the average of the nearest two marks, viz, 48 and 36, and she was accordingly awarded 42 marks. The minimum marks for pass for the paper was 50 and consequently she was declared 'failed'. The case of the petitioner is that the provision in Clause 23 of Ext.P1 Regulations that the average of the nearest 2 marks will be taken in case answer papers going for third valuation is arbitrary and unreasonable. According to her, the average of the two marks were taken in the case of others and therefore, the University should have taken the average of the three marks or the average of the best two marks in the case of candidates whose papers are going for third valuation. The petitioner, therefore, seeks a direction to the University to publish the results of the lost paper on that basis afresh.

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As far as W.P.(C) No.996 of 2016 is concerned, the only difference is that the petitioner therein is a first year student and she failed in one of her first year papers.

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A statement has been filed on behalf of the

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WPC 252 & 996 of 2017

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University supporting Ext.P1 Regulations.

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Heard the learned counsel for the petitioners and

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the learned Standing Counsel for the University.

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Clause 23 of Ext.P1 Regulations reads thus :

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“Double valuation of the answer papers in two different centers/ Centralized Valuation Camp will be performed. If the variation in marks is more than 15% of the total marks, the paper should go for a third valuation. No re-valuation should be permitted, only re-totaling permitted. The average of marks obtained for double valuation is taken as the original mark of the student. In the case of answer papers going for third valuation the average of nearest two marks is taken.”

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It is necessary to refer to the marks obtained by the petitioner once again for examining the issue. For the paper in question, the first valuer has awarded 48 marks and the second valuer has awarded 67 marks to the petitioner. The total marks of the paper was 100. As such, since the difference between the said marks exceeded 15%, the paper of the petitioner was sent to the third valuer. As noted above, the third valuer awarded 36 marks. Going by the Regulations, the nearest two marks

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WPC 252 & 996 of 2017

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secured by the petitioner being 38 and 46, the petitioner is entitled to only 42 marks and the same is not sufficient for the pass. The only question arises for consideration therefore is whether Clause 23 of Ext.P1, in so far as it provides that “in the case of answer papers going for third valuation the average of nearest two marks is taken” is valid. It is conceded that as per the Regulations issued by the Dental Council of India, if a candidate is in short of less than 5 marks for the pass, he has to be awarded appropriate marks for the pass. In other words, if the candidate has secured 47 marks, he is entitled to 3 marks by way of moderation. If the candidate has secured 46 marks, he is entitled to 4 marks by way of moderation. The only restriction is that the marks awarded to such a candidate shall not exceed 50. In other words, had the petitioner secured 45 marks, she would have got the benefit of moderation and passed the examination. The case of the petitioner has to be examined in the aforesaid background. It is necessary to consider a hypothetical situation to examine the correctness of the contention. For instance, had the second valuer awarded

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WPC 252 & 996 of 2017

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62 marks to the petitioner in the place of 67 marks awarded by him, there would have been no occasion for the third valuation and the petitioner would have passed based on the average of the two marks. It is a fact that all those students who have been awarded 48 marks by the first valuer and marks between 42 and 62 by the very same second valuer, had passed the examination, for, in their case, the third valuation was not necessary. In other words, the petitioner failed in the examination solely for the reason that the very same second valuer awarded more marks to the petitioner. I must concede that the Regulation 23 would have been the most appropriate one, had all the papers been valued by three valuers. It fails since it provides for third valuation only when there is a difference of 15% marks between the first two valuations. It is seen that having realised this folly, the governing council of the University has amended Clause 23 on 30.7.2016 to the effect that in case of answer papers going for third valuation, the average of the highest two marks shall be taken. In so far as the University has already amended Clause 23 of Ext.P1

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WPC 252 & 996 of 2017

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Regulations, I deem it appropriate to dispose of the writ petition directing the University to award marks to the petitioner for the subject in which she failed, in accordance with the amended Regulations.

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The writ petitions, in the circumstances, are allowed, the impugned results of the petitioners are quashed and the University is directed to publish the results of the petitioners in the subjects referred to in the writ petitions afresh, in accordance with the amended Regulations, which came into force with effect from 30.7.2016. This shall be done within two weeks from the date of receipt of a copy of this judgment.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

Nimmy Majo v. the Kerala University of Health Science

Case brief

What is this about?

What did the court decide?

Nimmy Majo v. the Kerala University of Health Science

Case brief

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