Nimmala Manishaht No.13801085 vs The State Of Andhra Pradesh,
2021 Latest Caselaw 1659 AP

               HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                         WRIT PETITION No.2709 of 2021

ORDER:

This writ petition is filed 'to declare the action of the respondents

2 and 3 in conducting the digital evaluation process contrary to the

principles laid down in 'Dr. P.Kishore Kumar vs. State of Andhra

Pradesh1'and 'Dr. J.Kiran Kumar & others vs. State of Andhra Pradesh'2 in

respect of petitioner's 3rd year MBBS course examinations held in the

month of November, 2020 and not furnishing copies of the answer

scripts, as illegal and arbitrary.'

2. Case of the petitioner is that, she is prosecuting MBBS course in

the NRI Institute of Medical Sciences, Visakhapatnam, a college affiliated

to the 2nd respondent-University; she appeared for the 3rd year MBBS

course examinations held in the month of November, 2020; as per the

scheme of examination, a booklet containing 64 pages will be supplied

to each student and the answer scripts will be evaluated by two

examiners independently and the marks awarded by the two examiners

will be clubbed and average marks will be taken and basing on the same,

the results of the students will be declared; the 2nd respondent-

University introduced the digitalized evaluation system; in respect of 3rd

year, a student has to prosecute three subjects viz., ENT,

Ophthalmology and Community Medicine and at the end of the academic

year, the 2nd respondent will conduct final examination for the each

subject wise and maximum marks for the theory examination is that 50

marks each and out of the same, a student must obtain 50% marks in

each subject and aggregate to declare pass; though she has written the

2016(6) ALT 408

2017(6) ALT 213

KVL, J WP No.2709 of 2021

examination well she was declared failed; lot of aberrations took place

in the process of evaluation of answer scripts; 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's case

(supra) and the non compliance of the said direction in Dr.P.Kishore

Kumar's case (supra) was pointed out in 'Dr.J. Kiran Kumar' s case

(supra); in Dr. Kishore Kumar's case (supra), it was held that when the

digital answer scripts were evaluated, stylus marks, tick marks etc.

evidencing the application of the mind and award of marks have to be

put on the digital paper. This Court in Dr.J.Kiran Kumar's case (supra)

pointed out that entering marks in the 'script marks report' is not

sufficient and scanned answer sheets should show the evidence of

evaluation; questioning the said evaluation, present writ petition is

filed.

3. Counter-affidavit is filed by the 2nd respondent-University

stating inter-alia that the University has introduced double valuation

system in the year 2011 through university resolution; through the said

system, each paper of the subject shall be valued by two examiners

independently and the average of the marks shall be taken into

consideration for final marks of that paper; if there is a variation of 20%

or above of the first and second valuations, the answer script shall be

referred to third valuation and the script will be valued by a new

examiner; this process will increase the accuracy in the valuation system

and transparency; after the 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; keeping

in view the directions of this Hon'ble Court, the University made

KVL, J WP No.2709 of 2021

arrangements to evaluate the answer scripts on digital basis; the

University has given a single booklet; after receiving the said booklets/

answer scripts, the University scanned the entire booklet; while scanning

the answer scripts of entire booklet, the question of missing their

answer sheets does not arise, because each page of the booklet having

barcode with page number; after verifying the same, the digital

valuation has been started and the same was uploaded and sent to the

valuation centers by the University; the answer scripts of the petitioner

show that the examiners valued using the tools; to some of the answers

it is written as irrelevant answer which show that papers were valued;

there are no mistakes or lapses on the part of University while

conducting the digital valuation; there is no regulation for revaluation of

the answer scripts either in the MCI regulations or the University

regulations, which was upheld by the Apex Court in 'Sahiti & others vs.

Chancellor, NTR University of Health Sciences3' and prays for

dismissal of the writ petition.

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

the answer scripts which were produced in Court on 11.02.2021 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 and filled up

script marks report separately attached on the top of answer script,

which is contrary to the judgments of this Hon'ble Court. There is no

sign of using digital tools. Marks granted to each question were also not

mentioned against the answer written to it on the answer sheets.

5. 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.

AIR 2009 SC 879

KVL, J WP No.2709 of 2021

6. 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. The learned Standing Counsel for the University also

admits the same. However, he 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'. Except writing as

'irrelevant answer' to some of the questions, there is no other sign of

evaluation. The scanned copies of the answer scripts of the petitioners

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

7. Learned counsel for the petitioners 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.

8. 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

KVL, J WP No.2709 of 2021

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

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".

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

challenged the method of digital evaluation and denial of re-totaling 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

KVL, J WP No.2709 of 2021

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

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 and 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.

10. 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

KVL, J WP No.2709 of 2021

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.

11. 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

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".

12. 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

KVL, J WP No.2709 of 2021

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

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.

13. 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

KVL, J WP No.2709 of 2021

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.

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.

14. 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."

15. 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.

KVL, J WP No.2709 of 2021

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

similar circumstances on 03.03.2020 observing as follows:

"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."

17. The judgments in Dr.P Kishore Kumar's case (supra) and Dr. J.

Kiran Kumar's case (supra) were also followed in subsequent cases i.e.,

in WP No.9846 and 10376 of 2019 and the writ appeals i.e., WA Nos.363

and 364 of 2019 were filed challenging the orders in the above two writ

petitions and the Division Bench of this Court while dismissing the said

writ appeals on 31.10.2019 and distinguishing the decision in Sahiti's case

(supra) observed as follows:

"On perusal of the aforesaid, it is apparent that the case at hand is a case in which the answers to the questions have not been evaluated by the examiners, and, the said fact was found correct in the previous round of litigation of the petitioners. The learned counsel representing the appellant is not in a position to dispute the fact that the same petitioners have come in the earlier round of litigation, in which, in between the parties, the deficiencies in evaluation of the answers were found and the record was perused by the Court, while making certain observations regarding not evaluating of the marks. It is also not in dispute that the said judgment of the learned single Judge has not been appealed against by the University. Therefore, the directions as issued in the previous round of litigation, have become final in between the parties. In such a situation, if the learned single Judge, while passing the order, referred the judgment of the previous round of litigation and recorded a finding that those directions have not been observed, such

KVL, J WP No.2709 of 2021

finding cannot be found at fault. It is to be noted here that the arguments advanced, regarding not considering the issue raised in para 7 of the counter-affidavit is concerned, it is only related to the fact that, once there is no provision in the statute, the revaluation ought not to be directed in view of the judgment of Hon'ble the Apex Court in the case of Sahithi & ors., supra. In this regard, it is suffice to observe that, before Hon'ble the Apex Court, the circumstances as prevalent in the case on hand, were not there, referring the fact that the questions which were answered by the students had not been evaluated by digital evaluation. On the contrary, when the Court perused the record, the said fact was found correct; however, manual evaluation was directed, issuing certain other directions. But, by non-observance of those directions, the evaluation has been done; therefore, at this stage, the argument advanced by the learned counsel for the appellant of second revaluation is fallacious. In fact, it is related to the revaluation as directed by this Court in the previous round of litigation between the parties and such direction is binding on them. In that view of the matter, the argument as advanced by the learned counsel for the appellant has no substance. Hence, the same is repelled."

Thus the issue is no more res integra.

18. In the instant case also the examiners have not used the

digital tools like stylus marks, 'tick' marks or 'x' marks, underling or

comments etc. following the guide lines issued in the earlier judgments

on the same issue and hence, the contention of the learned standing

counsel for the university that the usage of digital tools is discretionary

cannot be accepted. Marks are also not allotted to each answer on the

answer sheet.

19. Even after the said judgment, the University did not follow

the guidelines stipulated therein even in the examinations conducted in

the month of November 2020. Transparent evaluation process must be

adopted. The Hon'ble Supreme Court in 'President, Central Board of

KVL, J WP No.2709 of 2021

Secondary Education vs. D.Suvankar'4, held that 'absence of a provision

for revaluation cannot be a shield for the examiner to arbitrarily

evaluate the answer scripts and it would be against the very concept for

which revaluation is impermissible'.

20. In view of the facts and circumstances of the case, following

the decisions of this Court referred to above, the writ petition is

allowed, directing the respondents to get petitioner's answer scripts for

the 3rd year MBBS course examinations conducted in the month of

November, 2020, digitally evaluated as per the prevalent MCI norms by

identifying examiners. The University shall give clear and categorical

instructions to the new set of examiners to use the digital tools and they

shall mention the marks awarded for each answer clearly on the

uploaded answer scripts. The corrected answer sheets must be

preserved for future review. The entire exercise shall be completed

within a period of six (6) weeks from the date of receipt of a copy of this

order. No order as to costs. Consequently, Miscellaneous petitions, if

any pending, in this writ petition shall stand closed.

________________________ KONGARA VIJAYA LAKSHMI, J Date: 22.03.2021 Note: Furnish CC in three days.

(BO) BSS

(2007) 1 SCC 603

KVL, J WP No.2709 of 2021

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

WRIT PETITION No.2709 of 2021

URGENT

Date: 22.03.2021

BSS