Abhay Pathak vs Union Of India And 3 Others
2023 Latest Caselaw 16274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:113590-DB
 
Court No. - 40
 

 
Case :- WRIT - C No. - 13044 of 2023
 
Petitioner :- Abhay Pathak
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Chandra Shekher Singh
 
Counsel for Respondent :- A.S.G.I.,Shambhavi Tiwari,Sudeep Harkauli
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard Sri Chandra Shekher Singh, learned counsel for the petitioner; Shri Sudeep Harkauli, learned counsel for Dental Council of India, New Delhi (respondent no.2) and Ms. Shambhavi Tiwari, learned counsel for Dr. Bhimrao Ambedkar University, Agra (respondent no.3). The office of Additional Solicitor General of India, High Court, Allahabad has accepted notice on behalf of Union of India (respondent no.1).

2. Present writ petition under Article 226 of Constitution of India has been filed by sole petitioner Abhay Pathak, who is undergoing medical course i.e. Bachelor of Dental Surgery (hereinafter referred to as BDS) Batch 2014-2019 in K.D. Dental College & Hospital, Agra, recognized by the Dental Council of India, Ministry of Health and affiliated to Dr. Bhimrao Ambedkar University, Agra (hereinafter referred to as Agra University), seeking direction in the nature of mandamus commanding the respondent no.3 to re-evaluate the answer-sheet of the petitioner within a time bound and alternatively, to decide the representation of the petitioner.

3. The petitioner appeared in BDS (4th Professional) Examination, which was held in the month of February, 2022. The result was declared and mark-sheet was issued on 29.03.2022, wherein the petitioner was declared as "failed" in Paper-1 - Code M519 AB (Oral Maxillo Facial Surgery); Paper-5 - Code M516 AB (Orthodontics & Dentofacial Orthopaedics) and Paper-8 - Code M521 AB (Public Health Dentistry). As per the mark sheet, it is reflected that the petitioner had fallen short of two marks in Paper-1; three marks in Paper-5 and one mark in Paper-8 andhe was declared as failed in three papers. In this backdrop, the petitioner enquired from the Agra University for re-evaluation of his answer sheets and it came to his knowledge that the Agra University has set up a condition to deposit the requisite fee of Rs.5000/- per paper for re-evaluation of the answer-sheet. Accordingly, the petitioner has applied for re-evaluation and deposited the requisite amount of Rs.15,000/- on 13.05.2022. In this backdrop, the petitioner has preferred the present writ petition for the aforesaid reliefs.

4. Initially, the matter was taken up on 19.4.2023 and on the said date, the Court had accorded time to Ms. Shambhavi Tiwari, learned counsel for the Agra University to seek instructions in the matter. Again the matter was taken up on 02.5.2023 and on the request of learned counsel for the University the matter was passed over. Thereafter the matter was taken up on 22.5.2023 and on the said date, Ms. Shambhavi Tiwari apprised to the Court that the re-evaluation of the answer-sheets was carried out by the Agra University and again the petitioner failed to clear these papers. She had placed detailed instructions alongwith marks-sheet after re-evaluation.

5. Today, when the matter was taken up, Ms. Shambhavi Tiwari submits that the said re-evaluation was carried out by the University in response of the judgement and order dated 21.5.2019 passed in Writ C No.871 of 2019 (Devarsh Nath Gupta vs. State of UP and 3 others, wherein the Division Bench has proceeded to allow the writ petition with following observations:-

"24. We are really shocked when we see that these traditional belief on teachers are thrashed and demolished by persons like Examiner concerned in the present case, who has virtually failed to discharge his duty and failed to satisfy pious obligation, which students as well as University confided upon him that he will evaluate answer sheet properly and with application of mind.

25. It cannot be doubted that there can be difference in evaluation and for some answers, different Examiners/Evaluators may give different marks. It has various reasons and we do not want to have a research on this aspect in this judgment, since we understand and accept this variation inherent in the system. But, here is not a case of variation in evaluation. We are faced with a case where Examiner/Evaluator has virtually failed to evaluate answer sheet and has not even cared to read a large number of sheets of answer sheet. In a mechanical and casual fashion, he has awarded some marks to candidate without caring to future of student. Such Examiner/Evaluator is a blot on the pious position and entire community of teachers and has no right to continue to function as a teacher.

26. We also have serious concern as to how Examination Committee of Agra University is selecting teachers for evaluation purpose. There is no cross check system to prevent such injustice, where such scrupulous teachers have failed to discharge their duties in the manner they were expected to do so. Examination Committee of Agra University is also equally responsible. They being Expert in the matter are under an obligation to provide at least a reasonably adequate safeguard so that such cases of failure of a teacher in evaluation may not happen.

27. Future of even a single student cannot be compromised for any reason whatsoever. University has also a statutory obligation to have proper and effective evaluation of answer sheet of all Examinees. Every student has a right to know about level of his performance by assessment of his work in the hands of honest, capable and well trained efficient Teachers. This is high time when every educational institution must look into the matter and take appropriate and corrective steps so that such eventuality may not occur at all, otherwise people of country in general, and students community in particular, may loose faith in the system and that will be a black day to the entire education system in country. Its results may create havoc.

28. We should also keep in mind that younger generation is future of this country and merit and brightness of younger students cannot be allowed to be wasted and their career cannot be compromised due to such incident of unmindful, irresponsible type of assessment of answer sheet in examinations.

29. Coming back to facts of this case, we have no option but to direct University to award average marks of three Examiners, awarded to petitioner under order of this Court and treat that he has been awarded 20 marks in Physiology, Paper-II and accordingly correct his marks sheet and result and allow him to appear in further examinations accordingly.

30. We also find it appropriate to award a cost of Rs.1,00,000/- (i.e. rupees one lac) to petitioner, which at the first instance shall be payable by Agra University but it shall have liberty to recover the amount from concerned Examiner, after holding such enquiry as provided in law.

31. We hope and trust that Agra University, now shall take appropriate steps so that such irresponsible, scrupulous, unmindful and negligent Examiners/Evaluators are not deployed in future to evaluate answer sheets, whether it is a professional examination or general subjects or otherwise.

32. We also provide that, if any student who had appeared in examination of Agra University in the preceding three years, apply for reassessment or re-evaluation, taking present case as illustration, Agra University shall make reassessment/re-evaluation of answer sheet(s) of such student(s) and such case(s) shall not be declined for re-evaluation/reassessment only on the ground that there is no provision for re-evaluation in the Statute of University.

33. Copy of this judgment be also forwarded to Principal Secretary (Higher Education) as well as Secretary (Secondary Education), so that they may also look into the matter and ensure that Examiners/Evaluators of answer sheets are deployed in a reasonably efficient manner and there should be strict instructions so that no student may suffer on account of negligence/carelessness etc. on the part of Examiners/Evaluators.

34. Writ petition is allowed in the manner as aforesaid."

6. She further submits that even though the re-evaluation of answer sheet was not available in the University, as per the mandate of the Division Bench, the answer sheet of Devarth Nath Gupta (supra) was re-evaluated but at the same time, as the University was not agreed with the general direction in favour of the other similarly situated students and the costs, the University had assailed the validity of the judgement dated 21.05.2019 in Civil Appeal No.1141 of 2023, arising from SLP (C) No.27252/2019 (Dr. B.R. Ambedkar University, Agra vs. Devarsh Nath Gupta & ors) and Hon'ble Apex Court vide judgement and order dated 14.02.2023 had allowed the appeal in part to the extent that paragraphs 30, 32 and 33 of the order passed by the Division Bench of this Court were annulled and set aside. Therefore, she submits that no case is made out in favour of the petitioner and the writ petition is liable to be dismissed.

7. Confronted with this situation, learned counsel for the petitioner fairly states that in the light of the judgement dated 14.2.2023 passed by the Apex Court, he is not pressing any relief but at the same time, direction may be issued to the respondents to return the requisite fee of Rs.15,000/-, which has been deposited by the petitioner for re-evaluation of his answer sheets.

8. Considering the facts and circumstances, we have considered the relief, as has been prayed for and find that once in response of the Division Bench judgement dated 21.05.2019 the requisite fee was deposited by the petitioner for re-evaluation of his answer sheets and the respondent University had already carried out the re-evaluation then in such situation the relief, as has been prayed for return of the money, cannot be acceded.

9. Accordingly, the writ petition is dismissed.

Order Date :- 23.5.2023

RKP