Andhra Pradesh High Court - Amravati

Dr Kuna Srikar vs Dr. Ntr University Of Health ... on 17 February, 2021

Bench: Kongara Vijaya Lakshmi

               HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                       WRIT PETITION No.14179 of 2020

ORDER:

This writ petition is filed 'to declare the action of the 1st

respondent in evaluating the answer scripts of the petitioner through

evaluation process for the examinations conducted for the MS orthopedic

held in October/November 2019 and declaring the result, as illegal and

arbitrary and a consequential direction to the 1st respondent for

evaluation of the answer scripts manually.'

2. Case of the petitioner is that, he is a student of MS Orthopedics

in the 2nd respondent-college for 2016-19 batch; he appeared for MS

Orthopedic exam held in October/November, 2019 which consists of four

theoretical papers, practical/clinical and viva; he secured 334 marks out

of 700, but the minimum pass marks is 350; petitioner has a legitimate

doubt about the method of evaluation; the imperfection in the process

of digital valuation by the agency in respect of post graduate students

was pointed out by this Court in 'Dr. P. Kishore Kumar & others vs. State

of Andhra Pradesh1' and the non compliance of the said direction in

Dr.P.Kishore Kumar's case was pointed out in 'Dr.J. Kiran Kumar & others

Vs. State of Andhra Pradesh2' and questioning the said evaluation,

present writ petition is filed.

3. Counter-affidavit is filed by the 1st respondent stating inter-

alia that the University has introduced digital valuation (online

valuation) of the answer scripts of PG Degree/Diploma Examinations

from May/June, 2016 as Pilot Project/Work. The said work was

entrusted to M/s Globarena Technologies Pvt. Ltd., Hyderabad; after the

2016 (6) ALT 408

2017 (6) ALT 213

KVL, J WP No.14179 of 2020

judgment in WP No.26929 of 2016 dated 13.10.2016, the University has

taken steps to rectify the defects pointed out by this Court and

improved the system of digital valuation; there is no regulation for

revaluation of the answer scripts either in the MCI Regulations or the

University regulations; this Court allowed two writ petitions i.e., WP

No.10376 and 9846 of 2016 directing the University to revaluate the

answers; WA Nos.363 and 364 of 2019 were filed challenging the said

orders and both the writ appeals were dismissed; aggrieved by the same,

Special Leave Petition has been filed before the Apex Court and it is in

the stage of Dairy no. due to Covid-19.

4. When the matter came up for hearing on 14.10.2020, the

Controller of Examination of the University was asked to be present in

the Court along with the scanned copies of answer sheets of the

petitioner and the petitioner was permitted to verify the evaluated

answer sheets personally and according to the said direction, they were

produced on 16.10.2020 and the petitioner and his counsel have verified

the same and the petitioner was asked to file an affidavit with regard to

the same.

5. Additional counter-affidavit is also filed by the 1st respondent

stating inter-alia that the petitioner again appeared for regular

examinations held from 08.08.2020 to 14.08.2020, and that he failed in

the said examination and as he failed in the regular examination

question of revaluation of previous examination paper does not arise.

Learned standing counsel also relied upon the judgment of the Hon'ble

Supreme Court in 'Sahiti & others vs. The Chancellor, Dr. N.T.R.

University of Health Sciences & others3'.

AIR 2009 SC 879

KVL, J WP No.14179 of 2020

6. Reply-affidavit is filed by the petitioner after verification of

the answer scripts on 16.10.2020 stating inter-alia that the answer

scripts produced do not bear any evaluation marks/remarks of the

examiners or the marks allotted by the examiners to each answer, but a

plain unevaluated answer scripts along with filled up script marks report

which is separately attached is produced before this Court and the same

is contrary to the judgments in Dr. P Kishore Kumar's case (1st supra) and

'Yerra Trinadh & others vs. State of Andhra Pradesh4' and that answer

scripts do not bear any trace of evaluation.

7. Now the point for consideration is, whether the examiners have

scrupulously followed the directions given in the earlier decisions of this

Court while evaluating the answer scripts of the petitioner.

8. The Controller of Examinations, who was present in the Court

on 14.10.2020, produced scanned copies of answer scripts and submitted

that evaluators were given training before evaluating the answer scripts

and all the necessary tools were also provided to them. When this Court

verified the answer scripts, there is no proof at all to show that they

were actually evaluated by the examiner and none of the answer scripts

contain any mark to show that they were actually evaluated. Both the

learned Standing Counsel for the University and the Controller of

Examinations, who is present in Court, also admit the same. However,

both of them would submit that it is the discretion of the examiners to

use the techniques which are available to them while evaluating answer

scripts and that they exercised their discretion not to use the said tools

while correcting the answer sheets and they only entered the marks on

the 'Script Marks Report'. The scanned copies of the answer scripts of

the petitioners are taken on record, and made part of the record.

2019 ALT (5) 409

KVL, J WP No.14179 of 2020

9. Learned counsel for the petitioner relied upon the judgments

of this Court reported in Dr. P. Kishore Kumar's (supra), Dr. J. Kiran

Kumar's case (supra) and the directions in W.P.No.10376 of 2019 dated

19.09.2019 and in WP No.1956 of 2020 dated 03.03.2020.

10. Dr. P. Kishore Kumar's case (supra) was filed to declare the

action of the respondents in digitally (online) evaluating the answer

sheets of the petitioners. The petitioners therein were also students

pursuing P.G. Medical Degree/Diploma Course. Even in the said case,

Xerox copies of scanned and allegedly evaluated answer sheets were

produced and after examining the answer sheets the Court came to a

conclusion that "a careful scrutiny of the above excerpts discloses that

except entering marks in the sheet appended on the top of an answer

script, there is no trace of evaluation of answer sheet". And in the said

case, when the representative of the service provider stated that the

software used enables making notation, remarks and award marks to a

question, it was observed that the scanned answer scripts do not bear

the evaluation marks/remarks of examiners or the marks allotted by the

examiner to each question. It was further observed that the primary

evidence to discharge onus of evaluation is by relying on evaluated

answer scripts, and not the data entered on a separate script marks

report. In the said judgment it was observed that the power of judicial

review is permitted to a limited extent and that online evaluation of

answer scripts requires updating tools and skills of examiners and that

the expertise and technical compatibility of examiners at respective

centres is a matter required to be re-examined by the university and

compatibility is archived by undertaking demo classes and that the

legitimate expectation of a student is that the answers written are at

KVL, J WP No.14179 of 2020

least looked at and appreciated for evaluation. It was held that "this

Court is of the view that script answers reports are treated as evaluation

of answer scripts and no material is placed to satisfy that the evaluation

of answer scripts, in fact, had taken place and script marks report is the

summary of such evaluation" and it was concluded that "therefore, a

holistic view on the evaluation of answer scripts of petitioners is taken

by the Vice Chancellor within three weeks from the date of receipt of a

copy of this order and answer scripts evaluated either manually or

online, however, by taking all required steps, and thereafter declare the

results".

11. In Dr. J. Kiran Kumar's case (supra), the petitioners therein

challenged the method of digital evaluation and denial of retotalling of

the marks. The first contention of the petitioners therein was that the

digital evaluation was not evolved in a foolproof manner in spite of the

orders of this Court in Dr. P. Kishore Kumar's case (supra). Even in the

said case the answer sheets were directed to be produced and it is the

contention of the petitioners therein that the answer scripts did not

contain any signs of use of tools provided in the software and that after

manual valuation of the answer scripts which was done pursuant to the

orders of this Court in Dr. P. Kishore Kumar's case, out of 43 candidates

whose answer scripts were valued, 28 candidates passed and thus, there

is deficiency in the digital valuation which came out in the manual

valuation done after digital valuation. In the said judgment, this Court

observed that "though the usage of tools while evaluating the answer

sheets was highlighted in the said judgment, the same is not followed

while evaluating answer scripts even in this batch of cases. The marks

were filled up in a separate marks sheet and that is the reason why

when an opportunity was given to the candidates to verify their answer

KVL, J WP No.14179 of 2020

sheets, the digital sheets were not shown to them, but only manual

scripts were shown". In the said case, the second contention that was

raised is that the system of evaluation adopted by the University is

contrary to the regulations of the Medical Council of India and as this

Court found that the method adopted by the University is contrary to the

regulations it held that the valuation done to the answer scripts of the

petitioners therein was invalid and allowed the Writ Petitions and this

Court also directed the University to revalue the theory answer scripts of

the petitioners therein and declare their results.

12. This Court in W.P.No.10376 of 2019, dated 19.09.2019, while

relying upon the judgment of this Court in Dr. P. Kishore Kumar's case

and Dr. J. Kiran Kumar's case, allowed the Writ petition and directed

the respondents therein to once again evaluate the answer scripts. The

petitioners therein were also a group of medical students and they filed

the Writ Petition to declare the action of the respondents therein in not

getting the answer scripts digitally evaluated as per the earlier orders of

this Court as illegal and arbitrary and even in the said case the answer

scripts were produced and they did not contain any marks to show that

they have been actually evaluated and in those circumstances it was

observed that, despite the said two judgments the examiners have not

followed the instructions given by the University and the Court.

13. Despite the training and utilization of available technology, it

is clear that the examiners have not utilized the tools and there are no

stylus marks on the answer sheets and have not awarded marks on the

answer scripts for each question. Even though a specific direction has

been given in Kishore Kumar's case (supra), observing that "online

evaluation of answer scripts requires updating tools and skills of

KVL, J WP No.14179 of 2020

examiners and that the expertise and technical compatibility of

examiners at respective centres is a matter required to be re-examined

by the University and compatibility is archived by undertaking demo

classes", there is not much improvement in the evaluation of the

answers scripts. It was categorically held in Kishore Kumar's case (supra)

that "the legitimate expectation of a student is that the answers written

are at least looked at and appreciated for evaluation. In the case on

hand, with the illustration given, this Court is of the view that Script

Answers Reports are treated as evaluation of answer scripts and no

material is placed to satisfy that the evaluation of answer scripts, in

fact, had taken place and Script Marks Report is the summary of such

evaluation".

14. Learned Standing counsel also contended that the petitioner

appeared for regular examination from 08.08.2020 to 14.08.2020 and as

he failed in the said examination, the question of revaluation of previous

examination of the petitioner does not arise at all. But the said

contention does not merit consideration, as the petitioner has got every

right to ask for correct evaluation of the paper which he has written

irrespective of the result in the subsequent examination.

15. Learned standing counsel relying upon the judgment of the

Hon'ble Supreme Court in Sahiti's case (supra), submits that the Hon'ble

Supreme Court held that in the absence of any rules providing for

revaluation, no direction can be issued for revaluation. The said

judgment may not apply to the facts of the present case, as the

petitioner's case is that their papers were not evaluated at all as no

marks/remarks are found on the answer sheets. It is an admitted case of

the respondents that while evaluating the answer scripts, digital tools

KVL, J WP No.14179 of 2020

like stylus marks, tick marks or 'x' marks, underling, comments etc. are

not used at all and there are no traces of evaluation on the papers and

marks are not awarded to each answer in the answer sheet. It was

observed as follows in the said judgment:

"...Award of marks by an examiner has to be fair and considering the fact that re-evaluation is not permissible under the Statute at the instance of candidate, the examiner has to be careful, cautious and has the duty to ensure that the answers are properly evaluated. Therefore, where the authorities find that award of marks by an examiner is not fair or that the examiner was not careful in evaluating the answer scripts re-evaluation may be found necessary. There may be several instances wherein re- evaluation of the answer scripts may be required to be ordered and this Court need not make an exhaustive catalogue of the same. However, if the authorities are of the opinion that re- evaluation of the answer scripts is necessary then the Court would be slow to substitute its own views for that of those who are expert in academic matters.

16. This Court does not find fault with the University as the

Controller of Examinations has submitted that they provided the

examiners with all the necessary tools. Even though, the contention of

the learned standing counsel is that discretion is there to the examiners

to use tools provided to them, none of the answer scripts contain any

stylus marks i.e. tick marks/remarks. The Controller of Examinations and

the learned Standing Counsel appearing for the University fairly

admitted that the scanned answer sheets produced show no trace of

evaluation by the examiners. When the examiners have not utilized the

tools and have not made any mark on the answer script, this Court, in

earlier judgments, directed to once again evaluate the answer scripts as

per prevalent MCI norms by identifying four fresh examiners and

directed to give clear and categorical instructions to the new set of

examiners to physically put the marks viz. stylus mark, tick mark etc.

KVL, J WP No.14179 of 2020

on the uploaded answer script and the corrected sheet was directed to

be preserved for future review and the entire exercise was directed to

be completed within a period of six weeks from the date of the order.

17. Contention with regard to discretion in using the digital tools

is also raised in WP No.9853 of 2020 and this Court vide order dated

21.07.2020, observed as follows:

"Thus, this Court on earlier occasion did not relish the similar argument made by the 2nd respondent contending that the use of digital tools is only optional but not mandatory. On the other hand, this court categorically observed that the utilization of the available technology such as Adobe, PDF, Wacom, Stylus etc., would have certainly helped the University to achieve the objectives which it wanted to achieve by online evaluation. More precisely, this Court observed that the use of available tools would have furnished complete, actual, reliable and diagnostic reports. This court thus categorically held that it is the legitimate expectation of the students that the answers written are atleast looked at and appreciated for evaluation and in the case on hand, the script answer reports are treated as evaluation of answer scripts and no material is placed to satisfy that the evaluation of answer scripts, in fact, had taken place and script marks report is summary of such evaluation."

18. This Court allowed the said writ petition and directed to get

the answer scripts evaluated once again as per the prevalent MCI norms

by identifying four fresh examiners. It was also specifically directed

therein that such examines shall mention their remarks as well as the

marks awarded for each answer clearly on the uploaded answer scripts

by using digital tools and the corrected answer sheets must be preserved

for future review.

19. This Court in WP No.1956 of 2020 allowed the writ petition in

similar circumstances on 03.03.2020 observing as follows:

KVL, J WP No.14179 of 2020

"In the circumstances, the Writ Petition is allowed directing respondent No.2 to digitally evaluate the answer scripts as per prevalent MCI norms by identifying four fresh examiners; respondent No.2 - University shall give clear and categorical instructions to the new set of examiners to physically put the marks viz. stylus mark, tick mark etc. on the uploaded answer script and the corrected sheet shall be preserved for future review. The entire exercise shall be completed within a period of five weeks from the date of receipt of a copy of the order."