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MOAZAM SHAH KHAN VERSUS VICE-CHANCELLOR, RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, BANGALORE


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    W.P.26772 Of 2001

    Decided On, 19 October 2001

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE TIRATH S. THAKUR

    For the Appearing Parties: S.A. Nazir, Advocate.



Judgment Text

TIRATH S. THAKUR, J.


( 1 ) WHEN answer scripts of any examination are evaluated by a single examiner, the grievance of those who fail to make the grade is that the process of evaluation was subjective or erratic. They argue that revaluation can alone in such cases do complete justice and ensure an objective assessment of the performance of the candidates. Revaluation however is not an inherent right in the students who appear in the examination. Such a right can be claimed or enforced only if the regulations governing the examination provide for the same. Interestingly the grievance in the present batch of cases is not against evaluation by one examiner as is the usual refrain of students who fail in the examination. The challenge is to the regulations framed by the respondent-University providing for double valuation of the scripts. It arises in the following circumstances.


( 2 ) THE petitioners are M. B. B. S. students who have failed in some of the examinations taken by them. They attribute their failure not so much to their poor performance as to the method of evaluation of their answer scripts. The process of the evaluation of the scripts is regulated by what are known as Rajiv Gandhi University of Health Sciences (Provision for Double Valuation) Ordinance, 1999. These ordinances apply to valuation of theory answer scripts for various examinations pertaining to M. B. B. S. and B. D. S. Courses. They envisage valuation of each theory answer script by one internal and one external examiner, although in exceptional circumstances, the scripts can be evaluated by two internal examiners drawn from the approved panel of examiners after obtaining the prior approval of the Vice-Chancellor. The Ordinance requires the examiners to evaluate the answer scripts independently and in cases where the difference in award of marks between first and the second evaluer is 20% or more of the marks prescribed for that paper, the script has to be referred to a third examiner appointed by the Vice-Chancellor from out of the approved panel. The average marks of any two valuations close to each other, is in such a case, the final marks to be awarded for declaration of result. Ordinance 3 of the aforementioned ordinances which prescribe this procedure may at this stage be extracted. "double Valuation. (i) Each coded theory answer script shall be normally valued by one internal and one external examiner. But under exceptional circumstances, the same may be got valued by two internal examiners chosen from the approved panel of examiners only and after getting prior approval of the Vice-Chancellor. Each of the two examiners shall value the answer script independently. (ii) All answer scripts wherein the difference in award of marks between the first and second valuer is 20% or more of the maximum marks prescribed for that paper, shall be referred to a third examiner appointed by the Vice-Chancellor chosen from the approved anel. The average marks of any two valuations close to each other shall be the final marks to be awarded for declaration of result. If the difference between any of the two valuations out of the three is same, then the award for declaration of result shall be chosen to the best advantage of the candidate. In all other cases, the average of the marks awarded by the first and second valuers shall be taken as final. (iii) No claim for paper seeing, retotalling or revaluation shall be entertained in these cases".


( 3 ) REFERENCE may also be made to Rajiv Gandhi University of Health Sciences, Verification, Retotalling and Revaluation of the Answer Scripts Ordinance, 1999. These Ordinances apply to all examinations conducted by the University where the answer scripts are not subjected to double valuation and provide for verification and retotalling of marks besides revaluation in the manner provided thereunder.


( 4 ) IN terms of a notification dated 25th of January, 2000, issued by the Syndicate under Section 35 of the Rajiv Gandhi University of Health Sciences Act, 1994, both the sets of Ordinances mentioned above were partially amended. By the said Notification Ordinance 3 (iii) entered above was amended to the extent that the word "retotalling" appearing in the said Ordinance, was removed thereby making it permissible for a student to seek retotalling of marks even in cases where scripts are subjected to "double valuation". The net effect of the amended ordinances however continued to be that in cases where answer scripts are subject to double valuation. e. , valuation by two examiners independently, no revaluation is permissible. The petitioners find fault with the said regulations. The argument is twofold. Firstly, it is contended that the Ordinances have been issued in violation of Section 35 (3) of the act, inasmuch as the ordinances do not indicate whether the Syndicate had while making the same consulted the Academic Council. Consultation with the Academic Council, being mandatory the Ordinances providing for "double valuation" must be held to be ultra vires of the said provision. Alternatively it is argued that the method provided for valuation of the answer scripts is unjust and unreasonable besides being irrational. It is urged that a student may pass as per the marks awarded to him by a qualified examiner while he may fail on account if the average of the marks awarded by two examiners is taken into consideration. It is contended that so long as a student passes the examination as per the marks awarded by one of the examiners, there is no reason why he should be declared to have failed in the examination only because another examiner has given him lower marks and the average of the two, does not take him beyond the minimum prescribed.


( 5 ) THERE is in my opinion no merit in either one of the submissions. Section 35 of the Rajiv Gandhi University of Health Sciences Act, 1994, empowers the Syndicate to make Ordinances and to amend or repeal the same from time to time. Sub-section (2) enumerates the matters in regard to which the Ordinances may be made. Sub-section (3) provides that in making an Ordinance the Syndicate shall consult the Board of studies in matters relating to appointment and duties of examiners and the Academic Council in matters relating to conduct or standard of examination or conditions of residence of students. According to Mr. Devadas, Counsel for the petitioners, consultation with Academic Council f the University was necessary as the Ordinances in question related to conduct or standard of examination. The expressions "conduct" or "standard of Examination" have not however been defined. Whether an ordinance which only provides for the method of evaluation of the answer scripts could also be said to be an Ordinance relating to conduct of the examination or standard of examination is a moot question. Even assuming for the sake of the present writ petitions that the Ordinances in question insofar as they provide for double valuation relate to conduct or standard of examination, and therefore make consultation with Academic council necessary, such a consultation has according to the Affidavit filed on behalf of the University taken place. The Affidavit clearly states that the Academic Council of University had in a Meeting held on 14th August, 2001, approved the Ordinance unanimously. Consultation with the Academic Council cannot ever otherwise be confused with its concurrence let alone prior concurrence. The Syndicate may after consulting the Academic Council frame any Ordinance considered appropriate even if the Academic Council strikes a discordant note. What is essential is that the Academic Council should be consulted. It is not necessary that the Council must necessarily approve of the Ordinance which the Syndicate proposes to issue. Rhetoric apart, the substance of the matter is that the Syndicate and the Academic Council have unanimously found double valuation to be the most fair and objective method for assessing the performance of the candidates and given statutory sanction to the said method by issuing the impugned Ordinance. The university has been, ever since the Ordinances came into force, declaring the results on the basis of the double valuation of the scripts. Any interference with the said Ordinance at this stage will unnecessarily complicate matters and open up a floodgate of litigation for the University without serving any useful purpose. I have therefore no hesitation in rejecting the first limb of the challenge.


( 6 ) THAT leaves me with the only other question, namely, whether the Ordinance providing for double valuation suffer from any arbitrariness or irrationality? My answer to the same is also in the negative. The University is entitled to determine how the answer scripts for any given examination should be evaluated and by how many examiners. It may consider evaluation only by one examiner to be sufficient and even in such a case it may not provide for revaluation of the scripts. The students cannot in such a situation claim any inherent right for revaluation of the scripts. Judicial intervention apart, the evaluation made by a single examiner would also be binding on the student. The University may also provide for revaluation and recognise that the evaluation by an examiner may in certain situations be subjective or erratic. It may adopt a third approach as has been done by the University in the instant case. It may instead of one examiner conducting the evaluation and the papers being sent for revaluation, provide for evaluation of the answer scripts by two examiners and take the average of the two, as the marks awarded to the candidate. Any such scheme would take care of situations where the marking of the scripts may be alleged to be subjective or erratic. There is no gain said that the element of error in h

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uman judgment is considerably lower in cases where the scripts are marked by two examiners independently. Two heads are certainly better than one, given regard to the fact that both have the basic qualifications prescribed for acting as examiners. The fact that double valuation causes any prejudice or that it introduces an element of irrationality in the process of evaluation of the scripts or that the candidates must even after a double valuation be given the right to seek a further valuation by a third examiner has therefore to be rejected. So also the submission that the valuation by one examiner followed by revaluation of another will make any improvement in the situation, must fail for qualitatively there is no difference between a situation where a single examiner evaluates the scripts first followed by a revaluation of the same, and situation in which two examiners independently evaluate the scripts and the average of the two is awarded to the candidate. ( 7 ) IN the result these petitions fail and are hereby dismissed with costs assessed at Rs. 500/- in each case.
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