Director, Department of Government Examination and Others vs R. Neethushanmugi through her Father and Guardian, Dr. S. Ramesh

D. Murugesan, J.—These group of cases viz., review applications, writ appeals and contempt petitions concern with a common question as

to whether the candidates who have answered question No. 32 in Biology Paper in the Plus Two Public Examination held during March 2010, are

entitled for revaluation or for grant of full five marks. In view of the above common question, all the above review applications, writ appeals and

contempt petitions are taken up together and disposed of by this Common Order. For the sake of convenience, we may refer to the facts relating

to Review Application (MD) No. 81 of 2010 and the parties are referred to as shown in Writ Petition (MD) No. 7874 of 2010.

The Petitioner Minor R. Neethushanmugi filed the above Writ Petition through her father and guardian Dr. S. Ramesh for a Writ of Mandamus

directing the Respondents therein to admit her in M.B.B.S Course commencing in the academic year 2010-2011 in any one of the Government

Medical Colleges or in Private Medical Colleges [in Government Quota] as per the merit ranking caused on the basis of marks obtained in

revalued answer paper of the Petitioner.

The Petitioner studied her 12th Standard in Rosemary Matriculation Higher Secondary School at Palayamkottai, Tirunelveli District. She

attended Plus Two Examination conducted by the Department of Government Examination with her Registration No. 144905. She attended the

Biology Examination, which consists of two parts viz., part I dealing with Botony and Part II dealing with Zoology and wrote examination in English

version. As far as question No. 32 in Section C of part II of the question paper [English Version] is concerned, she was not awarded any mark.

The said question, both in English and in Tamil, reads as under:

English Version: ""32. Describe Karyotyping of Human Chromosomes.

Tamil Version: ""TAMIL MATTER.

Her grievance was that the key answer given to the said question was wrong and in fact, was misleading. Inasmuch as the key answer was

wrong, she ought to have been awarded the entire full five marks allotted to the said question, it is contended. While considering a similar request in

a batch of Writ Petitions, a learned single Judge of this Court, having accepted the case of the Petitioner and Others, found that the key answer

was not fully correct and the answer given by the candidates are not fully wrong and directed that the question No. 32 must be re-valued and

marks should be awarded on the basis of the correctness and quality of the answer, as the question is descriptive in nature. In other words, the

finding of the learned single Judge is that these candidates are entitled for revaluation and the answer given in the text book should be the basis for

such revaluation.

The said Common Order was questioned by the State by filing individual writ appeals. In the meantime, one Minor Akhil Vignesh filed W.P.

(MD). No. 8295 of 2010 seeking for revaluation and award off full five marks for the very same question and the said writ petition was dismissed.

Hence, he filed a writ appeal in W.A. (MD). No. 427 of 2010 with a grievance that his writ petition should have been allowed and a direction for

grant of entire full five marks should have been granted to the answer to question No. 32. The said writ appeal was taken up for hearing together

with other writ appeals filed by the State. By a judgment dated 10.8.2010, a Division Bench of this Court accepted the case of the said candidate,

viz., the Petitioner in W.P. (MD). No. 8295 of 2010 and allowed the writ appeal by holding that the said writ Petitioner was entitled to award of

full five marks, in view of the mistake in the key answer. In view of the said finding, the other writ appeals filed by the State were dismissed with a

direction to the State that all the writ Petitioners concerning those writ appeals are also entitled for full five marks to the said question No. 32.

The State seeks to review the above common order by filing separate review applications. For completion of the facts, we may also refer that

similarly, one S. Madhava Sundari (Minor) filed the appeal in W.A. (MD). No. 465 of 2010 challenging the order of the learned single Judge in

not awarding full five marks and consequently had sought for a direction to the Respondents to grant full five marks for question No. 32.

We have heard Mr. P. Wilson, learned Additional Advocate General, Ms. V. Chellammal, learned Additional Advocate Genera] appearing for

the State, assisted by Mr. G. Sankaran, learned Special Government Pleader viz., for the Review Applicants and the respective learned Counsel

appearing for the writ Petitioners.

Mr. P. Wilson, learned Additional Advocate General, has submitted that the findings of the Division Bench, viz., ""the key answer relating to

question No. 32 is demonstrably wrong and palpably incorrect"" are factually incorrect, since the learned single Judge has only found that the key

answer was not fully correct and the answer given by the students were also not fully wrong. Hence, an error apparent on the face of the record

has crept in the judgment of the Division Bench, he contended. In this context, the learned Additional Advocate General would also draw our

attention to paragraph No. 40 of the order in the writ petitions. In view of the above, the learned Additional Advocate General would submit that

the judgment of the Division Bench should be reviewed.

He would also submit that the Court cannot sit over in the decisions of the academicians. In this context, the learned single Judge as well as the

Division Bench ought to have left open the said issue to the decision of the experts, and therefore, the order in the writ petitions is liable to be

interfered with and the judgment in the writ appeals is liable to be reviewed. In this context, he would rely on a judgment of the Hon''ble Supreme

Court in All India Council for Technical Education Vs. Surinder Kumar Dhawan and Others, and submitted that in educational matters, the Court

should not substitute its conclusions to that of the experts. He would also add that at the appeal stage, the Appellant had produced one more

expert opinion regarding the key answer and the said expert opinion was not considered by the Division Bench. With the above submission, the

learned Additional Advocate General would seek for review of the judgment of the Division Bench.

On the other hand, it is the common contention of the respective learned Counsel appearing for the Respondents viz., writ Petitioners that

inasmuch as the key answer given to question No. 32 is wrong, the writ Petitioners are entitled to full five marks. In any case, it is their common

contention that in view of wrong key answer, the writ Petitioners are at least entitled for revaluation and the consequential award of mark for the

answers written by them. The respective learned Counsel would further submit that the reference in paragraph No. 15 of the Division Bench

judgment relating to paragraph No. 14 relates to paragraph No. 40 of the order of the learned single Judge and does not relate to paragraph No.

14 of the judgment of the Division Bench. In paragraph No. 40, the learned single Judge has only directed revaluation of the answer papers of the

respective candidates, who approached the Court and they are entitled to award of marks depending upon the answers written by each of the

candidates. The respective learned Counsel would also submit that the judgment of the Division Bench has the support of the judgment of the

Hon''ble Supreme Court in Guru Nanak Dev University v. Saumil Garg and Ors. (2005) 13 SCC 749.

We have carefully considered the above submissions. Even before venturing into any discussion on the rival contentions, we may point out that

the power of this Court in matters of review is very limited. Such power can be exercised only when there is error apparent on the face of the

record or in the event an order is not reviewed, it would amount to miscarriage of justice. For the said proposition, we may usefully refer to a

judgment of the Hon''ble Supreme Court in Shivdeo Singh and Others Vs. State of Punjab and Others, , wherein while dealing with the power of

review in the writ jurisdiction, the Hon''ble Supreme Court has held as follows:

...It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power to review which

inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

Later on, the question as to what does the phrase of ""error apparent"" convey in the context of power of review came up for consideration before

the Hon''ble Supreme Court in Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, , wherein, in paragraph No. 11, it has been

held as follows:

Similarly, even if the statement was wrong, it would not follow that it was an ""error apparent on the face of the record"", for there is a distinction

which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized

as vitiated by ""error apparent"". A review is by know means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies

only for patent error. We do not consider that this furnishes a suitable occasion for dealing with difference exhaustively or in any great detail, but it

would suffice for us to say that where without any elaborate argument, one could point to the error and say here is a substantial point of law, which

stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record

would be made out.

In this context, we may also refer to the judgment of a Division Bench of this Court in Baskaran Vs. The Commissioner of College Education and

Others, , wherein speaking for the Bench, His Lordship Mr. M. Srinivasan (as he then was, who later became a Judge of the Supreme Court),

held as follows:

In our opinion, on the facts and circumstances of this case, this Court could even exercise its suo motu power in order to render justice and set

aside the order passed by the Division Bench in the writ appeal. It is the duty of this Court to rectify the error committed by it and set right the

record as has been held by the Supreme Court in M/s. Devidayal Rolling Mills Vs. Prakash Chiman Lal Parikh and others, .

In view of the law laid down by the Hon''ble Supreme Court in the judgments referred to above, we may mention that the review is not an

appeal in disguise. We cannot consider any of the new materials, which were not placed before the Court, argued and not considered. With the

above background in law, the facts of the case must be considered. According to the review applicants, there is no mistake in the key answer and

correspondingly, there is no mistake in the question. In the given case, the question is to describe ""the Karyotyping of Human Chromosomes"" and

it is not objective in nature. Only in the event a question is objective type and the key answer is wrong and thereby the candidates are prevented

from giving the correct answer, the Court could interfere and direct the entire full marks to be awarded to the said question to the candidates, who

have attempted to answer. This is what exactly has been decided by the Hon''ble Supreme Court in the judgment Guru Nanak Dev University v.

Saumil Garg and Ors. (supra).

However, in the facts of the case, in our opinion, the said judgment cannot be made applicable. Though there is a mistake in the key answer,

the question asked being a descriptive in nature, even assuming that the candidates were prevented from giving correct answer or were made to

give some answer on the basis of the text book, that answer must be revalued and marks should be awarded depending upon the valuation with

respect to the answers.

In this case, the candidates have attempted the question paper in respect of question No. 32 and in view of translation of that question, which

apparently varies, some candidates have answered the said question in Tamil and some candidates have answered the said question in English. The

answer given for the Karyotyping of Human Chromosome in the approved text book contains two parts. The first part relates to description

without any diagram and classification. The second part relates to the description with diagram as well as classification. As far as English version is

concerned, going by the question paper, a candidate can be expected to give answer as per the descriptive answer from the first part. As far as

Tamil version is concerned, a candidate can be expected to give answer in terms of second part of the answer in the text book, which contains

diagram with classification. While that be so, merely because the candidates have given only the first portion of the answer, while they take the

examination in English, they cannot be denied any mark. As we are concerned with the candidates, who have taken examination in English, we are

not considering the answers given by the candidates, who have taken the examination in Tamil. As the above question requires only a descriptive

answer, the award of full five marks is not in consonance with the judgment of the Hon''ble Supreme Court in Guru Nanak Dev University v.

Saumil Garg and Ors. (supra), which applies only to a case of objective nature of question and answer. The Division Bench, having considered the

question as descriptive in nature, has applied the judgment of the Apex Court, which is, in our considered view, an error apparent on the face of

the record.

This is further fortified by the fact that the learned single Judge having found that the key answer is not fully correct and the answer given by the

students are not fully wrong, the candidates are entitled to certain marks and with that finding, directed revaluation. On the other hand, while

considering the said finding, the Division Bench awarded full five marks holding that the key answer relating to question No. 32 is demonstrably

wrong and palpably incorrect, and therefore, the candidates are entitled to full marks. This finding, in our opinion, is an error apparent on the face

of the record, which could be corrected in review applications. In that context, we may also refer to a judgment of the Hon''ble Supreme Court in

Rajender Singh Vs. Lt. Governor, Andaman and Nicobar Islands and Others, , wherein the it has been held as follows at p. 660 of MLJ:

...In our opinion, review jurisdiction is an error apparent on the face of the record and non-consideration of relevant documents. The

Appellant, in our opinion, has got a strong case in his favour and if the claim of the Appellant in this appeal is not countenanced, the Appellant will

suffer immeasurable loss and injury. Law is well settled that the power of judicial review of its own order by the High Court inheres in every Court

of plenary jurisdiction to prevent miscarriage of justice.

The power, in our opinion, extends to correct all errors to prevent miscarriage of justice. The Courts should not hesitate to review their own

earlier order when there exists an error on the face of the record and the interest of justice so demands in appropriate cases.

In view of all the above, we are inclined to accept the contention of the learned Additional Advocate General seeking for review only on this

aspect. Apart from the above, we may also refer to the judgment of the Hon''ble Supreme Court in Shivdeo Singh v. State of Punjab (supra),

wherein the Apex Court had held that the power of review is available to the Court, in the event it is brought to the notice of the Court that there is

a miscarriage of justice.

Having regard to our finding, we are of the considered view that the directions of the Division Bench to award full five marks to all the

candidates, who have filed writ petitions, should be understood only to award proportionate marks depending upon the nature of answer given by

each of the candidates, who have filed writ petitions, as directed by the learned single Judge in paragraph No. 40 of the order in the writ petitions.

With regard to the submission of the learned Additional Advocate General that when there is a specific provision for application for

revaluation, some of the candidates who have not even applied for revaluation cannot be given the benefit of revaluation on the orders of the Court

directly. In our opinion, such a contention cannot be accepted. When most of the candidates who have approached this Court had filed

applications for revaluation and had been given the said benefit of revaluation, similar benefit should also be extended to the other candidates, as

this Court had directed such revaluation only on the ground that the key answer was wrong and for the fault of the official Respondents, the

candidates should not be penalised. That apart, the order directing revaluation was not set aside by the Division Bench, but only the same was

modified to the extent of directing the grant of full five marks, instead of the marks based on the revaluation. At this stage, the State cannot be

allowed to raise this point in the review applications. The direction for revaluation in respect of all the candidates, even for some of the candidates

who have not applied for revaluation, is granted only on the peculiar facts and circumstances of this case and it shall not be quoted as a precedent

in any other case.

In view of the above, Review Application (MD). Nos. 81 to 93 and 95 of 2010 are allowed to the extent indicated above. In view of the

above finding, the State, who are Respondents in the Contempt Petitions, are given time for complying with the directions for revaluation and

award of marks on or before 21.9.2010, as the candidates, who are seeking admission to M.B.B.S. course, could be considered only up to

30.9.2010. With the above direction, all the Contempt Petitions are disposed of. Based on our above finding, both W.A. (MD) Nos. 446 and 465

of 2010 stand disposed of. Consequently, connected Miscellaneous Petitions are closed. No costs.

Mr. V. Rajasekaran, learned Special Government Pleader, is permitted to communicate the directions contained in this order to the

Respondents. The Respondents are directed to revalue question No. 32 and communicate the results to the writ Petitioners. We make it clear that

all these candidates are entitled for consideration and admission to M.B.B.S course on the basis of the revalued marks in the event they are

otherwise eligible and if they come under the zone of consideration as against the seats already reserved for each of the candidates by virtue of

interim orders of this Court.