Andhra Pradesh High Court - Amravati

Shaik Riyaz Basha vs Dr. Ntr University Health Science on 22 September, 2021

Bench: U.Durga Prasad Rao

             HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                        Writ Petition No.18437 of 2021

ORDER:

The petitioner seeks a writ of mandamus declaring that the

petitioner deserves for re-evaluation of his answer scripts of

Biochemistry Papers I & II and Human Anatomy Papers I & II

subjects of 1st year MBBS exam held in April 2021 (Hall Ticket

No.19M102028123).

2. The petitioner's case succinctly is thus:

The petitioner appeared for 1st year MBBS annual exams held in

January 2021 for three subjects viz., (i) Anatomy (two papers) (ii)

Physiology (two papers) and (iii) Biochemistry (two papers) with Hall

Ticket No.19M102028123. The examination was conducted by 1st

respondent University. However, there was a large scale violation of

the regulation passed by the Executive Council for digital evaluation

of answer scripts. In the results announced by 1st respondent

University, the petitioner got failed in Anatomy (two papers) and

Biochemistry (two papers) subjects. Later the petitioner appeared in

the supplementary exams held in April 2021. In the results announced,

the petitioner got failed in Human Anatomy (two papers) and

Biochemistry (two papers). Then the petitioner made an application

dated 28.06.2021 under the RTI Act to 2nd respondent requesting to

furnish certified copies of the answer sheets. The 2nd respondent vide

letter dated 28.07.2021 intimated the petitioner to appear for personal

verification of his answer scripts on 04.08.2021. On personal

verification, it was found that there was difference between marks

allotted to most of the answers in all the four papers in which the

petitioner appeared for the supplementary exams held in April 2021,

and there is variation of more than 20% of marks awarded to the

answers between the two examiners in most of the answers. The

petitioner reliably came to know that no external examiners were

appointed to evaluate the answer sheets. It is submitted that the

petitioner filed W.P.No.1487/2021 before this Court seeking a

direction to permit him to attend 2nd year MBBS classes for clearing

the backlog subjects. It is further submitted that the cause of action in

the above writ petition and present case is independent and distinct and

has no nexus with one another and they operate at different wave

length. The petitioner apprehends that there was a gross irregularity in

the evaluation of the answer scripts of the candidates. The petitioner

came to know that the students of his ilk have filed batch of writ

petitions and they were allowed and High Court of A.P. passed orders

for re-evaluation in terms of the guidelines issued for digital

evaluation of the answer scripts.

Hence, the instant writ petition.

3. The 1st respondent filed counter and opposed the writ petition

inter alia contending thus:

The petitioner has taken examination for MBBS First Year in

April 2021 and the results were pronounced in June 2021 and he was

declared as failed in two subjects i.e., Biochemistry and Human

Anatomy. It is submitted that the petitioner has made an application

dated 28.06.2021 under the RTI Act and requested for verification of

his answer scripts and was permitted for personal verification of

answer scripts on 04.08.2021. The petitioner attended for personal

verification of his answer scripts on 04.08.2021. After verification, he

acknowledged that his answer scripts were valued by the examiners,

vide acknowledgement dated 04.08.2021. The marks were evaluated

as per the MCI norms and guidelines. The respondents thus prayed to

dismiss the writ petition.

4. Heard Sri E.Satheesh Kumar, learned counsel for petitioner, and

Sri G.Vijay Kumar, Standing Counsel for 1st respondent.

5. The main plank of the argument of learned counsel for petitioner is

that the answer sheets of the petitioner were not at all evaluated by the

examiners which is writ large from the fact that in spite of the 1st

respondent/University providing them technical tools for evaluation like

stylus marks, tick marks, 'X' marks and providing training through

M/s.Globarena Technologies Private Limited, Hyderabad in digital

evaluation of the answer sheets, no such marks or comments were

mentioned on the answer sheet by the concerned examiners. Learned

counsel would vehemently contend that expect mentioning the marks

in a separate 'Script Marks Report', the examiners have not mentioned

any relevant comments or put tick marks on the digital answer scripts.

Therefore, the answer sheets were not evaluated at all. He relied upon

the decision in Dr. P.Kishore Kumar v. State of Andhra Pradesh

[2016 (6) ALT 408] wherein this Court deprecated the action of the

examiners in not placing any remarks on the digital answer sheets

relating to PG Medical examination and observed that it would amount to

non-evaluation and directed the 1st respondent/University to re-evaluate

the answer sheets. Learned counsel sought for similar order in this case.

6. In oppugnation, learned Standing Counsel for 1st respondent would

argue that for a fair and transparent evaluation, digital evaluation was

introduced whereby answer scripts will be evaluated by four examiners

independently and the marks awarded by them will be clubbed and

average marks will be taken, basing on which, results will be announced.

He would submit that the services of M/s.Globarena Technologies

Private Limited, Hyderabad were engaged to provide technical assistance

and training to the examiners in evaluating the answer scripts. Further,

the said agency has provided tools for making remarks on the answer

sheets. The stylus tool will assist the examiners to mention (√) marks or

'X' marks, underlines or comments etc., on the answer sheets. However,

such mentioning of the remarks on the digital answer scripts is purely the

discretion of the concerned examiners, but not a mandatory rule of the

University. Therefore, mere non-mentioning of the remarks on the

answer scripts cannot be treated as non-evaluation of the answer scripts

at all. After the evaluation, the examiners shall indicate the marks

awarded to each question on separate sheet called 'Script Marks Report'.

Learned counsel, however, fairly admitted that in the re-evaluation sheet

also there were no evaluation symbols. He thus prayed to dismiss the

writ petition, since the petitioner failed after the re-evaluation also.

7. The point for consideration is whether the examiners have

scrupulously followed the guidelines of the University as well as the

observations made in the earlier decisions in the process of evaluation of

the answer sheets of the petitioner and if not, whether the writ petition

deserved to be allowed?

8. Point: It should be noted that today on the direction of this Court,

the Controller of Examinations and Technicians, who are conversant with

the digital evaluation of the answer scripts, appeared in person before this

Court along with Memorandum of marks.

On perusal of the answer script, it must be said, they do not contain

the marks like (√) mark, 'X' mark, underlines or any other digital

remarks. Even the marks granted to each question were also not

mentioned on the answer sheets, but they were appended on a separate

sheet. It is no doubt that the Standing Counsel would argue that the

digital tools such as Wacom, stylus, etc., were provided to the examiners

only to enable them to mention the digital remarks at their discretion, but

however, no direction was given to them to invariably mention the

remarks on the answer sheet. However, this argument does not hold

water in view of the earlier decision in Dr. P.Kishore Kumar's case (1

supra), wherein it was observed thus:

26. 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. (Emphasis supplied).

27. The reply of 2nd respondent in this behalf is that all the Examiners have done online valuation and the marks scored or comments are entered in Script Marks Report. This reply does not satisfy the requirement of evaluation of answer scripts. (See Aditya Bandopadya's case MANU/SC/0932/2011: (2011) 8 SCC 497 (supra)).

28. xxx It is admitted that in the answer sheets produced in the batch of cases, the scanned answer scripts do not bear the evaluation marks/remarks of Examiners or the marks allotted by the Examiner to each question. It is not clear whether on account of oral instructions issued by 2nd respondent not to write on the scanned answer scripts, a few of the Examiners have not shown their evaluation. But an answer sheet with online correction i.e., remarks of Examiner with the available software is produced. The possibility of just filling up the Script Marks Report, even if done (this Court is not doubting the bona fides of Examiners), facility for verification, evaluation with compatible technology must be put in place or used by the Examiners. But the marks have been entered in Script Marks Report. Normally, the presumption is marks are allotted on evaluation. The primary evidence to discharge onus of evaluation is by relying on evaluated answers scripts, and not the data entered on a separate Script Marks Report.

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30. The online evaluation as illustrated above when is pointed out to the representative of service provider, the representative has fairly admitted that the scanned answer sheets produced in the batch of cases show no trace of evaluation by the Examiners. It is pertinent to remark that the utilization of available technology such as Abode, PDF format, Wacom, Stylus etc., would have certainly helped the University to achieve the objectives which it wanted to achieve by online evaluation. Use of available tools could have furnished complete, accurate and reliable Diagnostic Reports. At this juncture, the ratio laid down by the Hon'ble Supreme Court in Aditya Bandopadyaya's case MANU/SC/0932/2011 : (2011) 8 SCC 497 (supra) is taken note of. The clinical examination of a patient is the preferred option of Doctors. However, of late, more and more Diagnostic Reports are preferred for accuracy. The accomplishment of accuracy of a Diagnostic Report is possible with tools and technicians.

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33. Hence, the summary and conclusions are as follows:

"(a) the online evaluation of answer scripts for the examinations held in May/June, 2016 according to the stand taken by the 2nd respondent in para 2 of the counter-affidavit is in continuation of a pilot project introduced in October, 2015 and requires updating tools and skills of Examiners.

(b) 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.

(c) Consistency in the evaluation i.e., writing remarks by the Examiner on the scanned/answer scripts could not be shown in the answer sheets. Hence, keeping in perspective the technology uniform written instructions to Examiners could be issued.

(d) 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 above, 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."(Emphasis supplied).

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.

9. Needlesss to emphasize the above judgment applies with all fours