Malavika Singh and Others vs Dr. Ram Manohar Lohia Avadh University

Rajiv Sharma, J.—Heard Sri Kapil Dev, Senior Advocate assisted by Mr. Ashwani Kumar, lerned counsel for the Petitioners, Dr. Ravi Kumar Mishra appearing on behalf of opposite party Nos. 1 to 3 and Mr. D.M. Shukla, learned Counsel for the opposite party No. 4.

In brief, the facts of the present case, as submitted by the learned Counsel for the Petitioners, are that the Petitioners are students of B.D.S. in the institution known as Saraswati Dentral College, affiliated to Dr. Ram Manohar Lohia Avadh University, Faizabad.

Sri Kapil Dev, Senior Advocate submits that all the Petitioners appeared in the B.D.S. Fourth Year Professional Examinations conducted by the University in all subjects and did well in all papers, but in some papers, they have been awarded one mark less than the passing marks or round about due to arbitrary, mala fide and discriminatory action of the opposite parties. Hence, they have been declared ''failed'' in the respective subjects. According to the University authorities, there is no provision for re-evaluation and re-scrutiny/re-totalling of the subject papers in which the students stand failed.

Sri Kapil Dev, learned Counsel for the Petitioners submits that in view of the Regulation known as "Regulation for the Degree of Bachelor of Dental Surgery 2007" (hereinafter referred to as the Regulation) framed by the Dental Council of India in exercise of powers as conferred by Section 20 of the Dentists Act, 1948, notified on 25th of July, 2007, published on 10th of September, 2007, there is a provision of re-evaluation, the same is reproduced here-in-below:

Re-evaluation: The objective of re-evaluation is to ensure that the student receives a fair evaluation in the university examination and to minimize human error and extenuating circumstances. There shall be two mechanisms for this purpose.

So, the action on the part of the opposite parties thereby not considering the grievances of the Petitioners for re-evaluation of their answer-books is an action of arbitrary in nature and contrary to the law as laid down by this Court vide judgment dated 23.02.2010 in Writ Petition No. 970 (MS) 2010 Deepti Chauhan and Ors. v. Dr. Ram Manohar Lohia Avadh University, Faizabad, relevant portion of the same is reproduced hereinbelow:

Writ petition under Article 226 of the Constitution of India has been preferred by the Petitioner for scrutiny/revaluation of Orthodontics theory paper of Fourth Professional of BDS Course and also conduct the supplementary examination of fourth Professional of BDS course.

Dr. Ravi Kumar Mishra learned Counsel for the Respondents University admits that under the amended rule of Dental Council of India revaluation has been permitted.

Since right of revaluation has been conferred by amended rules the opposite parties are directed to consider the Petitioner''s application for revaluation and after completing necessary formalities revaluation may be done expeditiously and preferably within a period of one month from the date of receipt of a certified copy of this order. So far as holding of examination is concerned Respondent may consider in accordance with law. Writ petition is disposed of accordingly.

He further relied on the judgment passed by this Court on 09.06.2010 in Writ Petition No. 3542 (MS) 2010 Ms. Rishika Chhabra v. Dr. Ram Manohar Lohia Avadh University, Faizabad, which is reproduced hereinbelow:

Present writ petition under Article 226 of the Constitution of India has been filed for issuing a direction in the nature of mandamus directing the opposite parties to reevaluate the Orthodontics theory paper of fourth professional of B.D.S. Course.

The Petitioner has already submitted a representation to ventilate his grievances.

Accordingly, without entering into the merit of the controversy, the writ petition is finally disposed of directing the opposite parties to look into the matter and take a decision on the Petitioner''s representation in accordance with law by passing a speaking and reasoned order expeditiously and preferably within a period of one month from the date of receipt of a certified copy of this order and communicate the decision to the Petitioner. Liberty is given to the Petitioner to submit a fresh representation.

Subject to the above, the writ petition is finally disposed of.

And also on the judgment dated 10.03.2010 and 27.04.2010 respectively as contained in Annexure No. 5 to the writ petition passed by this Court in Writ Petition No. 1200 (MS) 2010 Ms. Shalini Parihar v. Dr. Ram Manohar Lohia Avadh University, Faizabad and Writ Petition No. 2381 (MS) 2010 Ms. Daljeet Kaur v. Dr. Ram Manohar Lohia Avadh University, Faizabad and Ors.

Accordingly, Sri H.G.S. Parihar, learned Counsel for the Petitioner submits that the relief as claimed by the Petitioners may be granted to them in the instant case.

Dr. Ravi Kumar Mishra, learned Counsel for the opposite party Nos. 1 to 3 submits that the provisions of re-evaluation is enforced in the University by means of the regulation published on 27th of September, 2007, and applicable only w.e.f. the academic session. 2008-09 of BDS Course (five years course) whereas the Petitioners are students of BDS Course 2006-07 (four years Course), the same is not applicable in their case, so they cannot derive any benefit from the provisions of re-evaluation as provided under the regulation and as such the present writ petition filed by the Petitioners is liable to be dismissed. However, he submits that in case the Petitioners submit a representation for consideration of their grievances which they have raised in the present writ petition, the same may be considered sympathetically in accordance with law.

Sri Kapil Dev in rebuttal submits that the examination in question has taken place after the enforcement of the regulation, as such the Petitioners cannot be denied the benefit of re-evaluation. In support of his submission he relied on the judgment of the Apex Court in the case of D.S. Nakara and Others Vs. Union of India (UOI),

I have heard the counsel for the parties and gone through the record. So far as the facts of the present case are concerned that the Petitioners were admitted in BDS Course 2006-07 (four years) and presently they appeared in the final year Professional Examination conducted by the University and their results have already been declared, mark sheets given on 9th February, 2011, but they secured less marks in some subjects, so they have applied for re-evaluation.

Needless to mention that So far as the law on the subject is that in the absence of any provisions under the statute or statutory regulations the Court should not generally direct re-evaluation.

Recently Hon''ble the Apex Court in the case of Himachal Pradesh Public Service Commission v. Mukesh Thakur and Anr. (2010) 6 SCC 759, has held as under:

Para - 24. The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, wherein this Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under:

14 ... It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act....

16... The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act....

Para - 25. This view has been approved and relied upon and re-iterated by this Court in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission and Others, observing as under:

7... Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re- evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the Appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks.

(emphasis added)

A similar view has been reiterated in Dr Muneeb-ul-rehman Haroon and Others Vs. Government of Jammu and Kashmir State and Others, Board of Secondary Education v. Pravas Ranjan Panda and Anr. (2004) 13 SCC 383; President, Board of Secondary Education, Orissa and Anr. v. D. Suvankar and Anr. (2007) 1 SCC 603 ; The Secretary, West Bengal Council of Higher Secondary Education Vs. Ayan Das and Others, and Sahiti and Others Vs. The Chancellor, Dr. N.T.R. University of Health Sciences and Others,

Further, a Division Bench of this Court in the case of Vice-Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur and Ors. v. Smt. Shashikala and Anr. 2009 (2) ESC 1223 (All)(DB) has held as under:

Para - 12 - Normally, in the absence of any provision for revaluation of the answer books in the relevant Rules etc., the Court will not give any direction for revaluation of the answer books. Reference in this regard may be made to the following decisions:

(I) Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others,

(II) Kshitij Singh Vs. Joint Secretary, Central Board of Secondary Education, Allahabad and others,

(III) Anuj Gupta Vs. Central Board of Secondary Education and Another,

Para 13 - However, there may be cases where glaring errors are found in the answer book indicating that the examiner has not at all applied his mind while evaluating the answer book, i.e. there has been total non-application of mind while evaluating the answer book. Such cases will be very rare and exceptional. In such cases, the Court may direct for revaluation of the answer book of a candidate. This is because if the evaluation is done by the examiner without application of his mind and glaring errors are found in the answer book marking it evident that the examiner has not at all applied his mind while evaluating the answer book, i.e., there has been total non-application of mind while evaluating the answer book, then such a case will be treated to be a case of non-evaluation of the answer book and direction for revaluation will be deemed to be direction for evaluation of the answer book, and not its revaluation.

In view of the aforesaid facts, the interest of justice will sub-serve, if the Petitioners'' matter is considered by the Vice-Chancellor/any authority who is authorized by him.

For the foregoing reasons, the Petitioners are permitted to file fresh representations within a week, from the date of issuance of certified copy of this order, raising their grievances which they have raised in the present case annexing all the relevant documents and material in support of their case before the Vice-Chancellor, any authority duly authorized by him. In case such representations are received, the authority concerned shall consider the same within ten days as per law and pass reasoned and speaking order.

With the above observation, the writ petition is finally disposed of.

No order as to costs.