Allowed

S.Karlen Nesan v. Sri Manakula Vinayagar

Madras HC18 Apr 2016WP/6727/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking revaluation of practical/clinical examination answer scripts. Although no regulation existed for revaluation, the Court directed the university to revalue the papers due to unrefuted allegations of malafide intent by an internal examiner causing failure to the petitioner.

What did the court decide?

The 2nd respondent was directed to revalue the petitioner's III Professional Part-II General Medicine Practical/Clinical examination answer scripts and declare the revised result within three weeks.

S.Karlen Nesan Vs Sri Manakula Vinayagar — Education and Admissions | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 13.04.2016 PRONOUNCED ON : 18.04.2016 CORAM

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THE HONOURABLE MR.JUSTICE R.SUBBIAH

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W.P.No.6727 of 2016 and W.M.P.Nos.6002 & 6003 of 2016

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S.Karlen Nesan ... Petitioner
Vs.
1.Sri Manakula Vinayager Medical College & Hospital
Rep. By its Director-Principal,
Puducherry.
2.Controller of Examination,
Pondicherry University,
Kalapet, Puducherry-14.
3.The Medical Council of India,
MCI Building Pocket-14,
Sector-8, Dwarka Phase-I,
New Delhi-77.
4.Dr.Badrinath, M.D. (General Medicine),
Head of the Department of Medicine,
Sri Manakula Vinayagar Medical
College & Hospital,
Puducherry. ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, directing the 2^nd respondent to revalue the III Professional – Part-II, General Medicine – Practical/Clinical examination answer scripts of the petitioner bearing Registration No.11770261 held on 18.12.2015 conducted at the 1^st respondent college with the petitioner case sheet submitted at the time of clinical examination and to declare the revised result within a stipulated time frame.

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For Petitioner : Mr.K.P.S.Palanivel Rajan For Respondents : Mr.Stalin Abhimanyu (For R2) Mr.V.P.Raman (For R3) (No Appearance for R1 & R4)

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https://hcservices.ecourts.gov.in/hcservices/

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ORDER

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This writ petition has been filed by the petitioner praying for issuance of a writ of mandamus, directing the 2^nd respondent to revalue the III Professional – Part-II, General Medicine – Practical/Clinical examination answer scripts of the petitioner bearing Registration No.11770261 held on 18.12.2015 at the 1^st respondent-college, with the petitioner case sheet submitted at the time of clinical examination, and to declare the revised result within a stipulated time frame.

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2.In the affidavit filed in support of the writ petition, it has been averred by the petitioner, inter alia, as follows:-

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2.1. The petitioner, after completing his Higher Secondary Course in the State of Tamil Nadu, had joined the 1^st respondent-College in MBBS Course, during the academic year 2011-2012. All exams are conducted by the 2^nd respondent and the petitioner had appeared for the 1^st and 2^nd Professional Examinations as well as Part-I of 3^rd Professional Examinations and he had cleared all the subjects in the said examinations in the first attempt itself.

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2.2.The last examination is the 3^rd Professional Exam – Part II, including the practical/clinical, which was conducted in the month of November-2015. On successful completion of the said Part-II of the 3^rd Professional Examination, the petitioner is eligible to do the Rotatory Resident Internship (House Surgeon) of one year duration, to get the MBBS degree.

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2-3.In the 3^rd Professional examinations – PartII, the students are required to take examinations in four subjects viz., General Medicine, General Surgery, Obstetrics & Gynecology and Peadiatrics. It is pertinent to point out that the students would be declared pass only if they secure marks given below as per the Regulation of the 2^nd respondentUniversity.

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	Annual / Summative	Internal Assessment	Annual/Summati ve/Internal Assessment + Viva
Theory	40%	35%	50%
(Minimum)
Practical	50%	35%	50%

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2-4.According to the Regulation of the 2^nd respondent – University, the Board / Examination Committee can consider Grace Marks, if the student has failed in only one https://hcservices.ecourts.gov.in/hcservices/ subject and has passed in all the other subjects of a

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particular session / semester. Grace marks of upto 5% of Theory marks can be added for one subject only, provided that by such an addition the student passes the Annul / Summative examination.

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2-5.The result of the Part-II in 3^rd Professional examination was declared by the 2^nd respondent on 21.01.2015 in their web site and he has secured good marks and passed three out of four papers (ie., General Surgery, Obstetrics & Gynecology and Peadiatrics); but, he is declared to have failed in the 'General Medicine' subject, that too more specifically in the Practical / Clinical, wherein he is declared to have obtained only 34 marks out of 100 marks, instead of 50 marks (i.e., 50% marks). The maximum marks prescribed for General Medicine by the Regulation of the 2^nd respondent and the marks secured by the petitioner are as follows:-

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Part-II (a)Medicine : Paper I – General Medicine, Paper
II – General Medicine (including Psychiatry, Dermatology and
S.T.D.)
S.No. Nature of Max. Marks Marks Result
exam. obtained
1. Theory:
Univ.Exam 160 100 (62.5%)
Oral (viva) 20 12 (60%)
Practical 100 034 (34%) Fail
Internal
Assessment
Theory 40 36 (90%)
Practical 30 21 (70%)
350 203 (58%)

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2-6.The 100 marks prescribed above for Practical / Clinical are distributed to

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The External and Internal Examiners have conducted the said practical/clinical examinations. In the practical/clinical examination, the candidate has to secure 50% marks in order to be declared as pass; but, as per the result published, the petitioner has secured only 34 marks out of 100 marks (i.e, he did not get 50 marks, that is 50%) and therefore, the petitioner had been declared as 'fail' in the 'General Medicine' subject and consequently, he became ineligible to do the 'Rotatory Resident Internship (House Surgeon)', along with https://hcservices.ecourts.gov.in/hcservices/ his batch mates.

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2-6.It is further stated by the petitioner that the 4^th respondent is the Internal Examiner for the petitioner's Practical/Clinical examinations held on 18.12.2015; and besides the 4^th respondent, one External Examiner has also conducted the examination. The long case study involves theoretical writing of case history of the given patient and as such, the same involves submission of written answer script. The Long Case given to the petitioner was regarding 'Respiratory System – effusion' and this had been conducted by one Dr.Shanmugam, Internal Examiner. The petitioner has done well in the descriptive and oral questions put to the petitioner. But, the said Internal Examiner did not reveal as to how many marks given to the petitioner for the long case.

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2-7.The 4^th respondent conducted the

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practical/clinical examination for short cases. In the three short cases, the 4^th respondent has conducted examinations relating to Viz., (1)Cardio Vascular System – Mitral Stenosis, (2)Central Nerves System – Right side Hemiplegia and (3) Abdomen – Alcoholic liver disease. The petitioner has analysed correctly and answered and he was fully satisfied in his performance in the short case also.

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2-8.While so, the 4^th respondent had unnecessarily put a question to the petitioner stating that, “since your relatives are working in this college, do you think that you will easily pass the examination'. The 4^th respondent also reminded of the earlier occurrence, i.e, the 4^th respondent directed the petitioner to ask his father to meet the 4^th respondent on a particular day; but, the petitioner's father, a practicing Doctor, could not meet the 4^th respondent. Hence, the 4^th respondent had questioned the petitioner and subsequently, the petitioner's father had met the 4^th respondent. It is further case of the petitioner that the 4^th respondent made certain comments against the petitioner's relatives working in the 1^st respondentInstitution to the petitioner's father; but, the petitioner's father ignored them as it may be the local politics in the Institution.

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2-9.Subsequently, to his shock and surprise, the petitioner came to know that he has been awarded only 34 marks out of 100 marks, both for long case and three short cases; thus, he has been declared as 'fail' in the practical /clinical; as a result of which, ultimately, the petitioner has to reappear for the entire 'General Medicine' paper and he is deprived of doing 'Internship' (House Surgeon) along with his batch mates, who have joined their internship on 29.01.2016 and thus, the petitioner is put to great hardship and mental agony, due to the malafide action of the 4^th respondent.

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https://hcservices.ecourts.gov.in/hcservices/

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2-10.Hence, the petitioner has come forward with the present writ petition before this Court for the relief as stated supra.

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3.Though notice was served to the 4^th respondent, he has not chosen to appear before this Court, either through a counsel or in person. Hence, the matter is posted today (13.04.2016) by printing the name of the 4^th respondent.

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4.When the matter was taken up for consideration, the learned counsel appearing for the petitioner, by reiterating the averments made in the affidavit, particularly submitted that the petitioner was purposely declared as 'fail' in the Practical/Clinical examination, due to personal motive of the 4^th respondent, which is evident from the comments made by the fourth respondent during the course of practical examination. In support of his contentions, the learned counsel for the petitioner has also relied upon the decision of this Court in W.P.(MD).No.8731 of 2015 dated 05.01.2016 (G.Fibi Vs. Secretary to Government and others) and submitted that in an identical situation, this Court has allowed the revaluation of the answer sheet in the clinical examination. The learned counsel for the petitioner has also relied upon the judgment reported in (2015) 0 Supreme (J & K ) 5 [Shravani Sareen Vs. University of Jammu and Ors]. By relying upon the aboves said decision, the learned counsel for the petitioner sought for a direction to the respondents to revalue his III Professional – Part-II, General Medicine – Practical/Clinical examination answer scripts.

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5.Per contra, the learned counsel appearing for the 2^nd respondent, by filing a counter, submitted that the petitioner has obtained only 34 marks out of 100 marks. The minimum marks prescribed for passing the practical examination is 50 out of 100; hence, the petitioner was declared as 'failed' in the practical paper for want of another 16 marks. The appointments of Internal and External examiners were strictly as per the Medical Council of India/University norms. The experienced subject experts have only evaluated and awarded 34 marks in General Medicine, to the petitioner. Though the petitioner has alleged and attributed malafide intentions against the 4^th respondent, the same has not been substantiated. Even assuming that the so called facts stated in support of the proposition of malafide intention are to be true, nowhere the petitioner has made out a prima facie case for malafide intention deserving the intervention of this Court. If the petitioner had felt that the allegations made by the petitioner that “the 4^th respondent made certain comments about the petitioner's relatives” would have a bearing in his internal examinations, the same apprehension should have been brought to the notice of the 2^nd respondent either when the 4^th respondent was appointed as internal examiner or immediately after the internal exams. However, https://hcservices.ecourts.gov.in/hcservices/ the petitioner has preferred to be silent on the issues

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comfortably till the results are declared and he raised the issues after he has been declared as 'fail'. Therefore, according to the learned counsel for the 2^nd respondent, the claim of malafide intention alleged by the petitioner stands unsustainable. It is further contended by the learned counsel for the 2^nd respondent that the breakup of marks awarded in internal examination rest with the 1^st respondent. The 2^nd respondent receives only the consolidated marks of internal examination, from the 1^st respondent. Therefore, except the consolidated marks of internal examination, the 2^nd respondents do not posses any other relevant records to this effect. The judgments relied upon by the petitioner are not relevant to the present case, as the petitioner has not made out a prima facie case.

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6.It is further contended by the learned counsel for the 2^nd respondent that as per the University Regulations, there is no revaluation scheme in the practical examinations. Hence, the claim of the petitioner for revaluation is untenable. In support of his contentions, the learned counsel appearing for the 2^nd respondent relied upon the decision reported in (2010) 6 SCC 759 (H.P.Public Service Commissioner Vs. Mukesh Thaku), wherein the Hon'ble Apex Court has held as follows_

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“26.Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation.”

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The learned counsel for the 2^nd respondent has also relied upon the judgment reported in (2004) 13 SCC 383 [Board of Secondary Education Vs. Pravas Ranjan Panda] wherein it has been held as follows_

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“6.The question whether in absence of any provision to that effect an examinee is entitled to ask for re-evaluation of his answer-books has been examined by us in Pramod Kumar Srivastava Vs. Chairman, Qiqihar Public Service Commission decided on 06.08.2004. It has been held therein that in absence of rules providing for reevaluation of answer-books, no such direction can be issued. It has been further held that in absence of clear rules on the subject, a direction for reevaluation of the answer-books may throw many problems and in the larger public interest such a direction must be avoided. We are, therefore, of the opinion that the impugned order of the High Court direction for re-evaluation of the answer-books of all the examinees securing 90% or above marks is clearly unsustainable in law and must be set

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https://hcservices.ecourts.gov.in/hcservices/

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aside.”

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Thus, by relying upon the above said decisions, the learned counsel for the 2^nd respondent submitted that in the absence of any regulation/scheme, no direction could be issued in the present writ petition as sought for by the petitioner.

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7.Keeping the submissions made on either side, I have carefully perused the entire materials available on record.

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8.It is the main submission of the learned counsel for the petitioner that the 4^th respondent, being the Internal Examiner, who had grudge against the petitioner, was responsible for 60 marks in the Practical/Clinical Examination. The petitioner was purposely made to file in the Practical/Clinical examination, by the 4^th respondent.

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9.But, the allegations of the petitioner was denied by the 2^nd respondent by filing a counter. It is the case of the 2^nd respondent that there is no regulation/scheme for revaluation of the Practical/Clinical; that in the absence of any regulation/scheme for revaluation, the petitioner's prayer cannot be entertained.

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10.But, I find that the writ petition has been filed mainly alleging that the petitioner was made to fail in the Practical/Clinical examination, due to the personal grudge of the 4^th respondent. Though notice was received by the 4^th respondent and the matter is posted before this Court by printing the name of the 4^th respondent, the 4^th respondent has not chosen to appear before this Court, either through counsel or in person, to deny the allegations made by the petitioner against him. In fact, in similar situation, in W.P.(MD).No.8731 of 2015 dated 05.01.2016 (G.Fibi Vs. Secretary to Government and others) a learned Single Judge of this Court, by relying upon the decision of the Madhya Pradesh High Court in the case of Pranshu Indurkhya Vs. State of M.P. (AIR 2005 M.P 152), has come to the conclusion that though the Rules do not provide for revaluation, in rare and exceptional cases where malafide or tampering is made out or where injustice has been caused on account of gross negligence, the Court may direct revaluation in exercise of its jurisdiction under Article 226 of the Constitution of India.

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11.Even in the instant case, the petitioner has made certain allegations against the 4^th respondent to the effect that due to personal motive, the 4^th respondent has purposely failed him. Though the notice was served on the 4^th respondent, he has not chosen to come forward to deny the allegations made against him. In my considered opinion, when the allegations attributed to the 4^th respondent is mala fide in nature, he ought to have entered appearance in this writ petition to deny the said allegation. Further, it is the https://hcservices.ecourts.gov.in/hcservices/ specific case of the petitioner that he had cleared all the

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subjects in all the exams in the first attempt itself. This statement of the petitioner was also not denied by the respondents. Hence, considering the factual aspects of this Court, I am of the opinion that even if there is no regulation/scheme for revaluation, in the interest of justice, the prayer of the petitioner could be entertained.

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12.Hence, the writ petition is allowed as prayed for and
the 2 nd respondent is directed to revalue the III Professional
– Part-II, General Medicine – Practical/Clinical examination
answer scripts of the petitioner bearing Registration
No.11770261 held on 18.12.2015 conducted at the 1 st respondent-
College, with the petitioner case sheet submitted at the time
of clinical examination and to declare the revised result
within a period of three weeks from the date of receipt of a
copy of this order. Consequently, connected Miscellaneous
Petitions are closed. No costs.
ssv
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
To
1.The Controller of Examination,
Pondicherry University,
Kalapet, Puducherry-14.
2.The Medical Council of India,
MCI Building Pocket-14,
Sector-8, Dwarka Phase-I,
New Delhi-77.
3. The Director-Principal,
Sri Manakula Vinayager Medical College & Hospital
Puducherry.
+ 1 cc to Mr.K.P.S.Palanivel Rajan, Advocate Sr 24339
+ 1 cc to Mr.V.P.Raman, Advocate Sr 24096
KR/26/4/16
W.P.No.6727 of 2016
and
W.M.P.Nos.6002 & 6003 of 2016

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https://hcservices.ecourts.gov.in/hcservices/

S.Karlen Nesan v. Sri Manakula Vinayagar

Case brief

What is this about?

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S.Karlen Nesan v. Sri Manakula Vinayagar

Case brief

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