Arsha G. Kurup & Anr. vs Guru Govind Singh Indraprastha ...
2011 Latest Caselaw 6305 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) 6448/2011


                                                Decided on : 22.12.2011
IN THE MATTER OF
ARSHA G. KURUP & ANR.                              ..... Petitioners
                   Through: Mr. D.K. Sharma, Advocate


                  versus


GURU GOVIND SINGH INDRAPRASTHA UNIVERSITY
AND ANR.                                          ..... Respondents
                   Through: Mr. Mukul Talwar, Advocate for
                   respondent No.1/University.
                   None for respondent No.2/College.

                              AND

                  W.P.(C) 7005/2011

NIRAJ KUMAR SINGH & ORS.                             ..... Petitioners
                    Through: Ms. Nandita Abrol, Advocate

                  versus

GURU GOVIND SINGH INDRAPRASTHA UNIVERSITY
AND ANR.                                          ..... Respondents
                   Through: Mr. Mukul Talwar, Advocate for
                   respondent No.1/University.
                   None for respondent No.2/College.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petitions have been filed by the petitioners praying

inter alia for directions to the respondents to add 30 grace marks to the

marks obtained by them in paper-I of surgery examination of third year of

Bachelor in Homeopathic Medicines and Surgery (BHMS) and promote

them to the fourth year of the BHMS course.

2. The facts of the case lie in a narrow compass. The petitioners have

been studying in respondent No.2/College, which is affiliated with

respondent No.1/University. On 16.05.2011, the supplementary

examination for paper-I of the surgery course in the third year BHMS was

held by respondent No.2/College, which was taken by the petitioners. It

is the grievance of the petitioners that the question paper for the

aforesaid examination contained questions of 30 marks, which were out of

syllabus, i.e., were from the syllabus relating to paper-II in the surgery

course. As per the petitioners, this fact was brought to the knowledge of

the invigilator during the course of the examination itself. The petitioners

were in turn advised to continue to attempt the paper and were assured

that their grievance would be examined later on. Consequently, the

petitioners attempted the question paper, however, their results were

declared on 21.07.2011, in which they were found to have not passed.

Immediately thereupon, the petitioners submitted a representation dated

26.07.2011 to the Principal of respondent No.2/College, requesting the

College to take up the issue of the questions being out of syllabus with

respondent No.1/University. As per the petitioners, they had submitted

representations dated 08.08.2011 and 19.08.2011 to the Vice Chancellor

of respondent No.1/University and requested that grace marks be given

to them, but as no response whatsoever was received from the

respondent No.1/University, they filed the present petitions. Pertinently,

the number of students before the Court in both the petitions together are

five in all.

3. Notice was issued in W.P.(C) 6448/2011 on 08.09.2011 returnable

on 12.09.2011 and notice was issued in W.P.(C) 7005/2011 on

23.09.2011 returnable on 29.09.2011. Having regard to the facts of both

the cases and considering the grievance of the petitioners that they were

not being permitted to sit for classes for the fourth semester, vide order

dated 12.09.2011 the Vice Chancellor of respondent No.1/University was

directed to decide the representations of the petitioners within a period of

ten days from the date of the aforesaid order in terms of clause 14(b) of

Ordinance 22, while ignoring the delay on the part of the petitioners in

failing to submit their written representation within a period of seven days

from the date of the examinations.

4. Based on the aforesaid directions, learned counsel for respondent

No.1/University filed an affidavit dated 23.09.2011, enclosing therewith

the minutes of the meeting dated 15.09.2011, held in the office of the

Controller of Examinations, wherein the grievance of the petitioners was

considered by the Students Grievance Committee, constituted by the Vice

Chancellor of the respondent No.1/University to look into the said matter.

The said Committee comprised of the Deans of the University School of

Humanities and Social Sciences, University School of Law and Legal

Studies, University School of Medical & Para-Medical Health Sciences, the

Subject Expert, namely, Dr. Vimal Bhandari from Vardhman Mahavir

Medical College and Safdarjung Hospital, Delhi, the Principal of

respondent No.2/College and the Controller of Examinations. A perusal of

the minutes of the meeting reveals that the Committee considered the

statement of the Controller of Examinations that he had already obtained

the comments of the Paper Setter, who also happens to be the teacher of

the subject of Surgery in respondent No.2/College. After examining the

comments/report and after deliberating over the matter, the Subject

Expert, namely, Dr. Vimal Bhandari gave his opinion as below:-

"I perused the syllabus of BHMS-301 and the question paper Surgery-I of the year May/June 2011 (Supplementary Exam) and the grievances of the student relating to said examination paper.

On examination of said question paper, my opinion is as follows:

1. The surgery is a composite subject consisting of Basic Sciences, Clinical and Therapeutics.

2. Question No.3 in the Paper I is a part of the Paper-II, since there is a choice in this Paper I, the remaining questions could have been attempted by the students.

3. The question No.4 (A) & (B) are not part of the syllabus of the Paper I but they are part of the Paper II, which can be attempted with subject knowledge of the Surgery as a whole.

On this, I recommend:

Even if, the grievances are to be considered according to the division of the subject Paper I & II, 50 percent of the marks of the question 4(A) & (B) can be considered for the grace marks, i.e. 5 marks to be given to the each student of the subject."

5. The aforesaid recommendations of the Subject Expert that 5 grace

marks be given to each of the students was unanimously accepted by the

Committee and forwarded to the Vice Chancellor of respondent

No1/University, who in turn accepted the recommendation of the

Students Grievance Committee.

6. Counsel for respondent No.1/University submits that after the grant

of 5 grace marks, as recommended by the Students Grievance Committee

and endorsed by the Vice Chancellor of respondent No.1/University, the

marks obtained by the petitioners herein are as below:-

Student      Marks           Total           Total of all   Shortfall   Total of all   Marks
Name         obtained in     Marks     in    3 Papers       (Pass       3    Papers    required
             Paper I Part    Paper      I    (out     of    Marks       (out      of   out of the
             A               (out      of    300)           150)        270)           balance 30
                             100)                                       (Ignoring      marks
                                                                        Q.3 & 4
                                                                        (a) & (b).

Kurup        Q.   2 :8
Petitioner   Q.   4a: 0

W.P.(C)      Q.   4c: 1
6448 of      Q.   4d: 1


Vats         Q.   2 : 10
Petitioner   Q.   4a: 3

W.P.(C)      Q.   4c: 2
6448 of      Q.   4d: 0


Singh        Q.   2 :4
Petitioner   Q.   4a: 2

W.P.(C)      Q.   4c: 2
7005 of      Q.   4d: 0


Singh        Q. 2 : 10



 Petitioner   Q.   4a: 2.5
No.2    in   Q.   4b: 2.5
W.P.(C)      Q.   4c: 3
7005 of      Q.   4d: 1/2



Devender     Q.   1 :6      27          100        50            93.5       56.5
Kr.          Q.   2 : 2
Petitioner   Q.   4a: 2
No.3    in   Q.   4b: 2.5
in           Q.   4c: 2.5
W.P.(C)      Q.   4d: 1
7005 of

7. It is thus submitted by counsel for respondent No.1/University that

none of the petitioners have obtained the required 50% pass percentage,

i.e., 150 out of 300 marks as mandated by Ordinance 22 of the University

Ordinance and thus, they cannot be promoted to the fourth professional

year of BHMS course.

8. Counsel for the petitioners submits that the grace marks

recommended by the Expert Committee are insufficient for the reason

that the two-fold grievance raised by the petitioners has not been

properly considered by the Students Grievance Committee. The first

grievance was that in the paper-I of the supplementary examination

relating to the subject of Surgery which included ENT, Ophthalmology,

Dental Surgery & Homeopathic Therapeutics-I which was for the

maximum marks of 100, out of eight questions, the students were

expected to attempt six questions in all three from part A, three from part

B of which, question No.1 in part A and, question No.5 in part B were

compulsory. She states that the petitioners have no dispute with respect

to part B, however, as question No.3 and question No.4 (a) & (b) of part

A were out of syllabus, the option of the petitioners to attempt six out of

eight questions in all was reduced and the resultant effect was that the

petitioners had to compulsorily attempt the remaining six questions.

Further, paper-I was only a part of the subject of surgery and there were

two other papers for the said subject, i.e., paper-II and paper-III, and all

the three papers had a well defined and separate syllabus. It is stated

that respondent No.1/University having introduced questions in paper-I,

which actually related to the syllabus of paper-II, caused great prejudice

to the petitioners inasmuch as not only did it result in limiting their choice

and making all questions compulsory, but it also ended up in the

petitioners having to attempt questions from the syllabus of Paper-II, for

which they were not prepared on that date.

9. In the course of arguments, counsel for the petitioners relied on an

order dated 16.01.2009 of the Controller of Examinations relating to the

Grace Marks Policy of the University, which stated that six grace marks

could be awarded to students like the petitioners in certain professional

courses like MBBS, BHMS etc. where the Annual Examinations are being

followed by Supplementary Examinations and the latter is part of the

former and the buffer of the unused grace marks could be carried over to

the subsequent supplementary examinations and therefore, the

petitioners would be entitled to being awarded 18 grace marks if none

had been used by them earlier thereto.

10. It is relevant to note that an additional affidavit was filed on behalf

of respondent No.1/University on 05.12.2011 in this regard, wherein it

was stated that the aforesaid order dated 16.01.2009 of the Controller of

Examinations was only a summary of an earlier notification dated

17.01.2006 issued by respondent No.1/University, on the subject of

awarding six grace marks per semester/annual examinations. A perusal

of the aforesaid notification dated 17.01.2006 shows that notice was

taken of the practice of awarding six marks to the students in every

semester/annual examinations to pass course(s) of any programme, and

if some grace marks were still left over, the same were awarded to the

student in the subsequent re-appear examinations of the same

semester/annual examinations. While deprecating the aforesaid practice,

it was suggested by respondent No.1/University that grace marks

(maximum upto six marks) may be awarded only to the regular

semester/annual examinations and the facility of awarding grace marks

during the re-appear may be discontinued so as to meet the academic

standard of the University. It was further suggested that in programmes

like MBBS and BHMS etc., where the annual examinations were being

followed by supplementary examinations, making them a part of the

annual examinations itself, then award of maximum of six marks as

grace/moderation may also be applicable for the supplementary

examinations, provided that the award of the total of six

grace/moderation marks be restricted to just that professional/year of

examinations and not be carried over to the next professional/year of

examinations. The logic for making such a suggestion was also indicated

in the notification, which was that a student enrolled in MBBS and BHMS

Courses cannot be promoted to the next professional year until and

unless the examinations of previous professional year are cleared in the

annual followed by supplementary examinations and he/she would have

to repeat the entire professional year. Hence the possibility of

transferring grace marks to the next professional/year would not arise.

The order dated 16.01.2009 issued by respondent No.1/University in

respect of the grace marks policy of respondent No.1/University is clearly

a reiteration of the earlier circular dated 17.01.2006, a part of which has

also been reproduced therein. The date of giving effect to the said order

has been indicated as 23.01.2006. In other words, the notification dated

17.01.2006 and the order dated 16.01.2009 do not permit carry forward

of six grace marks from one professional/year examination to another in

the course of a programme like MBBS and BHMS, and the petitioners

cannot claim entitlement to 18 grace marks on the basis of the order

dated 16.1.2009.

11. Be that as it may, in the light of the grievance of the petitioners

that they had not been granted grace marks despite repeated

representations made by them to the respondent No.1/College, and in

spite of the fact that they had also sent separate representations to the

Vice Chancellor of respondent No.1/University to consider their case for

grant of grace marks, for which they had received no response, vide order

dated 12.09.2011, the Vice Chancellor of respondent No.1/University had

been directed to decide the pending representation dated 08.08.2011 of

the petitioners. The said representation has been decided in accordance

with the minutes of the meeting of the Students Grievance Committee

dated 15.09.2011 wherein the Subject Expert opined that questions

No.4(A) & (B) were not a part of the syllabus of paper-I but a part of

paper-II, but could be attempted with subject knowledge of surgery as a

whole and that question No.3 in paper-I was also a part of paper-II, but

since there was a choice in paper-I, the remaining questions could have

still been attempted by the students. In spite of the aforesaid

observations, the subject expert recommended grant of five grace marks

to each of the petitioners, which was unanimously accepted by the

Committee. Unfortunately, even after the grant of five grace marks to

the petitioners, they have still fallen short of the pass marks of 150,

which are required to be obtained by them out of the total of 300 marks,

i.e., the sum total of 100 marks in paper-I, 100 marks in paper-II and

100 marks in paper-III. Even if the contention of the counsel for the

petitioners is accepted that under the policy of respondent

No.1/University pertaining to grace marks, students like the petitioners

would be entitled to grant of six grace marks for that professional/year

and along with that they would be awarded five grace marks as

recommended by the Subject Expert, even then the addition of 11 marks

to the marks obtained by them in paper-I are not sufficient for the

petitioners to obtain the pass marks of 150 out of 300 marks.

12. It is a settled law that when an expert body gives its definite

conclusion and submits a report in that regard, then the Courts should not

step into the shoes of such an expert body and arrive at a different

conclusion merely on the basis of its own calculations. The Court must

keep in mind the fact that it lies in the domain of the Vice Chancellor of

the University to take appropriate action relating to the affairs of the

University, which would include conducting examinations in a proper

manner. As held in the case of Sahiti vs. Dr. N.T.R. University of Health

Sciences reported as (2009) 1 SCC 599, the Vice Chancellor is the

conscious keeper of the University and he is the principal executive and

academic officer of the University. He is entrusted with the responsibility

of overall administration of academic as well as non-academic affairs and

for the said purposes, the University Act confers a residuary power on the

Vice Chancellor to see that the provisions of the Act, the Statutes,

Ordinance and Regulations are duly observed.

13. Similarly, in the case of "Parents Forum for Meaningful Education

and Ors. vs. CBSE" reported as 1994 (30) DRJ 142, where the

petitioner/society approached the Court for directions to the

respondent/CBSE therein to compensate class XII students, who sat for

the Mathematics examinations in the year 1994 for the reason that the

question paper was not only lengthy, but included some wrong questions

and the distribution of marks for some questions was inappropriate, the

Division Bench took notice of the fact that the respondent/CBSE therein

had constituted an Expert Committee to look into the grievances of the

students, which had evolved a marking scheme prepared for evaluation of

class XII Mathematics paper and was satisfied that it would serve the

purpose of protecting the interest of the examinees. Having regard to the

fact that the respondent/CBSE had accepted the findings of the Expert

Committee for compensation to the examinees, the Court declined to go

into that grievance by observing that it was inappropriate for it to discuss

the method of the compensation.

14. In the present case, under Clause 14(b) of the Ordinance, the Vice

Chancellor has constituted the Students Grievance Committee and the

said Committee has made recommendations, which have been accepted

by him. All that this Court is required to examine in judicial review is

whether the aforesaid decision of the educational authority contravenes

any Statute or the binding rule is so arbitrary, unreasonable, malafide and

perverse that it warrants intervention. Ordinarily, the Court should show

due regard to the opinion expressed by an expert body. Considering the

fact that the request of the petitioners for grant of grace marks has been

duly considered by respondent No.1/University and the recommendations

made by the expert body to grant five grace marks to the petitioners has

been accepted by the Vice Chancellor of respondent No.1/University, the

matter ought to rest there. However, even if the Court takes into

consideration the submission of the counsel for the petitioners that six

additional grace marks as per the Grace Marks Policy of respondent

No.1/University be given to the petitioners, the same would be of no help

to them as even after adding a total of 11 grace marks to the marks

obtained by the petitioners, they would still fall short of the aggregate

pass marks of 150 marks required to be obtained by them to pass the

subject. In such circumstances, no further indulgence or relaxation can be

claimed by the petitioners beyond what has been granted by the expert

body. There are some petitioners who after the addition of 11 grace

marks still fall short of the pass mark of 150 by just a couple of marks.

The Court can express sympathy with them, however, no further

relaxation can be granted, as the norms of evaluation and compensation

have to be applied uniformly to all the examinees and not to individual

cases.

15. In the present case, the expert committee has scrutinized, reviewed

and reconsidered the entire facts and circumstances of the case and

ultimately has arrived at a conclusion that only five grace marks ought to

be granted to the petitioners. This Court does not find any infirmity in the

aforesaid order or in the decision making process for interference therein.

There can be no justification to further relax the norms of evaluation to

accommodate such of the petitioners, who after adding the grace marks

still fall short by one or two marks, inasmuch as the exercise of such

extraordinary powers would result in throwing to the winds all principles

of equality and non-partisanship, which cannot be permitted.

16. In the aforesaid facts and circumstances, both the petitions fail and

are disposed of accordingly while leaving the parties to bear their own

costs. However, before parting with the case, this Court deems it

appropriate to direct respondent No.1/University to ensure that in the

future, the question papers are prepared with more meticulous care and

caution, and instructions ought to be issued to all the paper setters to

ensure that all the questions set in the paper are within the syllabus of

the course in question and are properly evaluated to gauge whether an

average student can attempt and complete them within the prescribed

time. Such an exercise should not only be undertaken by the paper

setters, but should also be independently followed by the Moderators at

the pre-examination stage. Once this exercise is undertaken at two levels,

it will eliminate all chances of error/oversight, which may jeopardize the

career of students like the petitioners in the present case. The purpose

behind setting questions for the students in a paper is not only to test

their knowledge but also to set a standard of academic excellence in the

institution, and to ensure that the credibility and sanctity of the

examination system is protected and maintained. It is for the

respondents to work in that direction and to ensure that such an

error/oversight does not occur in the future.

17. The Registry is directed to forward a copy of this order to the Vice

Chancellor of respondent No.1/University for perusal and compliance.

The Court places on record its appreciation for the assistance rendered by

the counsels on both sides appearing in the matter.

                                                      (HIMA KOHLI)
DECEMBER     22, 2011                                     JUDGE
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