Manish & Ors. vs Guru Gobind Singh Indraprastha ...
2011 Latest Caselaw 3021 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: 05.05.2011
                         Judgment delivered on: 03.06.2011


+                   W.P.(C) No.8340/2010

Manish & Ors.                              ..... Petitioners.
                         Through: Mr. Pawan Upadhyay, Adv.

                         versus

Guru Gobind Singh Indraprastha
University and Anr.                           ..... Respondents

                   Through: Mr.Mukul Talwar,Adv. for
                            the respondent-University.
                            Mr.Lalit   Kumar,      Adv.       for
                            respondent     college.

                         AND

                  W.P.(C) No.334/2011

Gagandeep Kaur & Anr.                ..... Petitioners.
              Through: Mr. Pawan Upadhyay, Adv.

                         versus

Guru Gobind Singh Indraprastha
University and Anr.                     ..... Respondents
                Through: Mr.Mukul Talwar,Adv. for
                         the respondent-University.
                         Mr.Lalit   Kumar,       Adv.    for
                         respondent     college.




      W.P.(C) No. 8340/2010                page 1 of 20
 CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may
     be allowed to see the judgment?                     Yes

2.   To be referred to Reporter or not?                  Yes

3.   Whether the judgment should be reported
     in the Digest?                                      Yes

KAILASH GAMBHIR, J.

*

1. By these petitions filed under Article 226 of the

Constitution of India, the petitioners seek direction to direct

the respondents to hold re-examination of 'Physiology' paper

through some independent agency.

2. Brief sequence of events necessitating the filing of

the present petitions are that all the petitioners took

admission with respondent no.2 hospital in MBBS course in

different academic years and all the students either belong to

SC, ST or OBC category and from the category of central pool

but the common grievance raised by the petitioners is that

they have been failing in the paper of Physiology of the Ist

year even after repeated attempts. The petitioners have

W.P.(C) No. 8340/2010 page 2 of 20 further stated that all the students who had failed in the main

examination appeared in the supplementary examination of

2010, and only 11 students passed the supplementary

examination, but still 25 of them had failed and even those

who have passed had secured just passing marks. The

petitioners have also stated that so far the students who took

admission in the Army College of Medical Science are

concerned, they had all passed in the supplementary

examination. It is also the case of the petitioners that the

answer sheets were not evaluated by the external examiners

but only by the internal examiners carrying out the facile

exercise by randomly checking one answer sheet or the other.

It is also the case of the petitioners that they had made

various representations to the concerned authorities but

despite assurance given by such authorities, nothing could

come out of them.

3. Mr.Pawan Upadhyay, learned counsel appearing

for the petitioners submitted that since all the candidates who

had appeared in the supplementary examination belonged to

W.P.(C) No. 8340/2010 page 3 of 20 the reserved category only, therefore, the coding of the

examination roll numbers by itself would not support the

stand taken by the respondent that the examiner would not

come to know that a particular student belongs to the

reserved category. Counsel also submitted that in fact the

respondent-college had been manipulating the marks of the

students belonging to the reserved category. Counsel also

invited attention of this Court to the reply dated 9 th March,

2011 sent by the college under the RTI application filed by the

petitioners wherein the college had admitted that error was

committed by them in recording the marks of the candidate

Rajeev Kr. Meena in his internal assessment for October,

2010. Counsel also submitted that the said Committee

constituted by the Vice Chancellor did not afford any personal

hearing to all these students who were in a better position to

explain their grievances. Counsel further submitted that if the

respondents are so confident that the said examination was

evaluated in a fair and transparent manner then they should

not shy away from getting the evaluation of the said answer

W.P.(C) No. 8340/2010 page 4 of 20 sheets of all these petitioners done through some independent

examiner.

4. Mr.Mukul Talwar, learned counsel appearing for

the respondent-University submitted that pursuant to the

directions given by this Court vide order dated 22.12.2010,

the Vice Chancellor of the respondent-University had

constituted a Committee to look into the grievance of the

petitioners contending that they have repeatedly been failed

in the Physiology examination due to class discrimination.

Counsel further submitted that the said Committee comprised

of the Dean, University School of Medical and Para-Medical

Sciences, two subject experts of Physiology and an officer of

the examination branch of the University. Drawing attention

of this Court to the Minutes of the said Committee; counsel

submitted that the said Committee did not find any merit to

suggest any extraneous reasons or any bias or discrimination

for failure or poor performance of the said students who are

not getting success in the said examination of Physiology; and

the marking of the students in the said paper is fair and

W.P.(C) No. 8340/2010 page 5 of 20 objective. The committee further found that there is a strong

in-built mechanism to ensure fairness in the system of

evaluation through the process of mixing copies of examinees

and coding their examination scripts, the counsel submitted.

Mr.Talwar also invited attention of this Court to the result of

these students who have repeatedly been failed in the said

examination and pointed out that in all, the said subject

carried total marks of 200, out of which 140 marks are

allocated to theory and 60 marks for practical. Counsel

further submitted that none of these students could secure

passing marks in theory and practical and, therefore, they

could not qualify the said examination. Counsel also pointed

out that the students were being assigned appropriate marks

in the practical examination and had there been any class

discrimination then they would not have been given the

appropriate marks in the practical examination. Counsel thus

submitted that this Court would not go into the disputed

questions of facts in the exercise of writ jurisdiction. Counsel

also submitted that the matter is also pending consideration

W.P.(C) No. 8340/2010 page 6 of 20 before the National Commission for Scheduled Castes and

Scheduled Tribes where the respondent-University is already

appearing and contesting the proceedings.

5. Mr.Lalit Kumar, learned counsel appearing for the

respondent No.2-college submitted that a student is required

to secure passing marks in both theory as well as in practical

examination. Counsel also supported the argument of

Mr.Talwar that there is absolutely strong in-built mechanism

to evaluate the papers and no examiner can know which

answer sheet belongs to which student. Explaining the

process, counsel submitted that the Physiology paper is

divided into four parts, for three hours on two different dates.

Counsel further explained that on the first day, the student

will appear in part-I and part-II and on the second day part-III

and part-IV of the same subject. Counsel also submitted that

after the examination the answer sheets are sent to the

examination branch of the respondent-University and all the

four answer sheets are allocated different code numbers.

Counsel also submitted that after assigning code numbers to

W.P.(C) No. 8340/2010 page 7 of 20 these answer sheets the same are sent to the examiners

appointed by the University. Counsel also submitted that

every year the answer sheets of the supplementary exams go

to different examiners and after checking the answer sheets,

the same are submitted to the University and then the

University compiles the result of the particular paper and

then the result is declared. Counsel thus submitted that the

mechanism is absolutely fool proof and hence there is no

room for any unfairness or any question of class

discrimination. Counsel also submitted that so far 2009

supplementary examination of the said subject is concerned,

two examiners themselves belonged to the reserved category.

Counsel also submitted that out of 35 candidates who had

appeared in the supplementary examination, only 3 have

failed in the practical examination while 32 have qualified

which fact would again show that had there been any class

discrimination, then these students at least could not have

passed the practical exam.

W.P.(C) No. 8340/2010 page 8 of 20

6. I have heard learned counsel for the parties and

given my serious consideration to the arguments advanced by

them.

7. Vide order dated 22.12.2010, this court directed

the Vice Chancellor of the respondent-University to consider

the representation of the petitioners and to report the matter

to this court as the issue raised by the petitioners involves

factual controversies. Pursuant to the directions given by this

court, the Vice Chancellor of the respondent University

constituted a committee comprising of four experts out of

whom, two were the subject experts in the field of

Physiology. The said committee after carrying out the

evaluation of the answer sheets and the pattern of the

examination did not find any material to suggest any

extraneous reasons, bias or element of class discrimination

which could result in failure or poor performance of some

students of the University in Physiology paper. It would be

appropriate to reproduce the observations made by the said

committee as under:

W.P.(C) No. 8340/2010 page 9 of 20 "The meeting of the Committee constituted by Hon'ble Vice Chancellor to look into the grievances of the students of Vardhman Medical College and Safdarjung Hospital was held on 20 th January 2011 in the Examinations Division of GGSIPU, Kashmere Gate Campus. The Committee comprised of four persons including two subject experts of Physiology. Officer-in-Charge dealing with M.B.B.S. in the examinations Division presented all the relevant documents including the answer scripts of Physiology I & II to the committee. The Committee assessed the pattern of examination system of M.B.B.S and the evaluated answer scripts. The Committee also perused the statement of marks for internal examinations. On perusal and consideration of all relevant documents and records including evaluated answer scripts the Committee observed the following.

"1.The committee appreciated the broad based and fair evaluation system for the M.B.B.S. examinations. The committee noted that there are storng inbuilt mechanism to ensure fairness and objectivity in the system of evaluation in the form of blind evaluation, mixing of copies of all examinees and coding of the examination scripts.

2. The committee noted that the evaluation is so broad based and coded that one or two people cannot influence the result of an examinee for any malafide or extraneous reasons.

3. They looked at the pattern of marking of examinees in various components of Physiology papers. They noted that the students have relatively poor performance in both Sections of Physiology II than other components. The marking pattern in internal examinations carrying 20% weightage does not show any element of an effort bias or discrimination.

4. The failure of certain students in general seems to be for the reasons of poor performance in Physiology II. Two of the expert members who are experts in Physiology randomly looked at the evaluated answer scripts. It was noted that the marking of both sections of Physiology II was objective and no malafide could be attributed for poor performance.

5. The members observed significant difference in performance levels of Physiology I and II. They noted that it was because of difference in the difficulty level of the papers. The syllabus of

W.P.(C) No. 8340/2010 page 10 of 20 Physiology II includes Nervous System and Endocrine System which require much higher levels of understanding, knowledge, comprehension and preparation than Physiology I or Anatomy or Biochemistry. The poor performance in general in Physiology II vis-à-vis Physiology I and other papers like Anatomy and Biochemistry may be for this reason than any extraneous reasons.

6. The expert members of the committee noted that medical profession deals with the life and death of the persons, where in the court of Almighty no grace and leniency is admissible for a professional failure of a medical practitioner. The subject of Physiology being the foundation stone of medicine, no grace may be suggested just for passing the students who do not perform well.

7. The committee concluded that it did not find any material to suggest any extraneous reason or any bias or discrimination for failure or poor performance of some of the students of the University in Physiology paper of M.B.B.S. course. The marking of the students in the said paper being fair and objective, it does not recommend any measure to pass the students."

With the above findings given by the experts, nothing more is

required to be probed in the matter and that too in exercise of

the writ jurisdiction especially when the issues raised involve

factual controversies. It is a settled legal position that the

courts should not sit over the findings given by the experts

and the courts would not substitute its own view for the view

of the experts.

8. The petitioners have raised the issue of class bias

as these petitioners are getting repeatedly failed in one

W.P.(C) No. 8340/2010 page 11 of 20 subject paper i.e. Physiology. As per the petitioners, the said

subject is comparatively easy whereas as per the stand of the

respondent, this subject is a little bit difficult. Irrespective of

whether the subject is easy or difficult, every student

necessarily has to clear the same and mere failure of a

number of students belonging to any category cannot lead to

an inference that they are being discriminated due to some

class bias or discrimination. No specific allegations have

been leveled by the petitioners as on whose behest and on

what ground the petitioners are being discriminated resulting

into their repeated failure in the said paper. As per the

respondent, the petitioners failed in the External Theory

Examination Part II of the Physiology paper and there is a

strong in-built mechanism to ensure fairness in the system of

evaluation through the process of mixing of the answer

sheets after assigning distinctive codes to the answer

sheets. It is thus the stand of the respondents that the

examiners who check such answer sheets cannot in any

manner come to know as to which answer sheet belongs to

W.P.(C) No. 8340/2010 page 12 of 20 which student. The respondent no.2 has pointed out that

even in the supplementary examination conducted in October,

2010, one internal examiner and one external examiner

belonged to SC category. It is also pointed out by the

respondent No.1 that some of the petitioners have taken up

eight attempts but still they have not been successful in

passing the said paper. Another interesting fact that was

brought to the notice of the court was that these petitioners in

comparison have faired well in their internal assessment in

comparison to their securing marks in theory Part II

Physiology paper.

9. I find there is a complete and rational justification

given by the respondent that to ensure that no student gets

affected by any devious mind set of any examiner, 20% of the

marks have been allocated for the internal assessment in the

total evaluation. Undeniably, the possibility of discrimination

cannot be totally ruled out in the internal examinations where

the internal examiner may have some preconceived notions

against any class, however, that is not the case here as all

W.P.(C) No. 8340/2010 page 13 of 20 these petitioners have failed in their part II Physiology paper

repeatedly which is an external examination. Although,

counsel for the petitioners vehemently refuted the contentions

raised by the counsel for the respondent that the answer

sheets of the petitioners through blind evaluations cannot be

identified as all these petitioners belong to the reserved

category or from the central pool and therefore, not only

their roll numbers fell in the same serial but it is also

undeniable fact that all these students alone had been

appearing in the supplementary examinations in the said

paper, therefore, it was not difficult for the respondent to

identify these petitioners even after adoption of the said

system of blind evaluation. Counsel for the petitioner also

strongly placed reliance on the report given by the Forum of

Rights and Equality, AIIMS wherein they have given

suggestion that there is a need of thorough enquiry on the

charges of casteism and callousness made by these students.

Counsel for the petitioner also took a stand that there are no

failures in the said Physiology subject so far the students of

W.P.(C) No. 8340/2010 page 14 of 20 Army College of Medical Sciences are concerned, since the

said college does not follow the reservation policy.

10. As already discussed above, for making out a case

of class discrimination, the allegations leveled by the students

must be clear, specific and unambiguous and not just giving

vague and obscure hints. Repeated failure of the same

students in the same subject certainly can cause frustration to

such students, more particularly when the students of other

colleges, whether belonging to general or reserved category

are clearing the said exam in Physiology paper. But the moot

question is whether in the absence of any specific allegations

or any material placed on record by the petitioners, can the

Court accede to the allegation of class discrimination as made

out by the petitioners merely because of their repeated failure

in the same subject. It is also difficult to accept the report of

a private forum i.e. Forum of Rights and Equality, AIIMS in

the face of the report of the expert committee constituted

by the Vice Chancellor which comprises of four members i.e.

Dean, University School of Medical and Para-Medical

W.P.(C) No. 8340/2010 page 15 of 20 Sciences, two subject experts of Physiology and an officer of

the examination branch of the University.

11. The contention of the learned counsel for the

petitioners that one of the petitioners had failed eight times in

the said exam would not lead to an inference that he is a

victim of class discrimination. Even the reliance placed by

the counsel for the petitioners on the information received

under the RTI in respect of the petitioner no.16 Rajiv Kumar

Meena intimating that there was some typographical error

while entering his marks in the internal assessment in OMR

Sheet would also not help the case of the petitioners to draw

the said inference of class discrimination.

12. Article 14 of the Constitution of India prohibits any

kind of discrimination against any citizen by the State on the

ground of religion, race, cast, place of birth or any of them.

The dictionary meaning of 'discriminate against' is making

adverse distinction with regard to or to distinguish

unfavorably from others. Article 46 of the Constitution of

India which finds place in Part IV of the Constitution dealing

W.P.(C) No. 8340/2010 page 16 of 20 with Directive Principles of State Policy envisages that the

State shall promote special care the educational and

economical interest of the weaker sections of the people and

in particular of the scheduled castes and the schedules tribes

and shall also protect them from social injustice and all forms

of exploitation. It is not the case of the petitioners that the

respondents have framed any policy, rule or regulation which

has the effect of discriminating the petitioners who belong to

the reserved category. The case of the petitioners is that

despite various attempts made by them they are not able to

clear exam in one paper i.e. Physiology Part II and there

cannot be any other cause for such repeated failure of the

petitioners except that they are the victims of class

discrimination. It is very difficult to accept such a

proposition as it is totally illogical and irrational, more

particularly when the mechanism of checking the answer

sheets of the examinees is such which cannot be tinkered

with to target a particular set of students. Having said that,

the court does not mean to turn a blind eye to the reality; the

W.P.(C) No. 8340/2010 page 17 of 20 cases of class discrimination or caste bias are prevalent, be it

in the academic institutions or at workplace. More often than

not, it is difficult to find a direct evidence of cast

discrimination, but wherever anybody complains of such cast

bias or class discrimination, there has to be some potent

evidence to support the same, or at least some circumstances

clear by indicating of such class or cast discrimination.

13. Reservations were introduced for the backward

classes in the institutes of higher learning like engineering

and medical colleges with the objective that the social

discrimination of the past which has led to educational

backwardness could be mitigated. Aimed at making the less

privileged realize their true potential by removing the

barriers of class, this goal of a fair society cannot be achieved

if these classes nurse the grudge of being discriminated

against even after given opportunities. Class discrimination

has undoubtedly been a sensitive issue responsible for

historical moments, political turmoil, watershed legislations

and landmark rulings in this country. But with the

W.P.(C) No. 8340/2010 page 18 of 20 advancement of the country and social transformation, the

societal mindset has indeed undergone a paradigm shift and

to still read into failures as the emanation of prejudice would

be like perpetuating the misgivings of the yore instead of

eradicating them. The demons of discrimination have haunted

the past of this country and nobody can be allowed to use it as

a weapon to justify their being unsuccessful. It is a caveat

launched to the students that they should look at facts more

dispassionately so that the future of educational enhancement

is not impaired by mythical dogma, but only illuminated by

excellence.

14. In the light of the above discussion, this court does

not find any merit in the present petitions and the same are

accordingly dismissed.

15. However, this Court is of the considered view that

the respondent should in all earnestness ensure that the

petitioners are given some extra coaching classes by the

faculty of Department of Physiology so as to fully prepare

them to clear their supplementary examination in the said

W.P.(C) No. 8340/2010 page 19 of 20 paper, so that these students may not harbour any feeling

that they are less deserving or lack the caliber to qualify the

said Physiology paper in any manner . The respondent shall

also ensure that effective steps are taken by them to ensure

fair and foolproof evaluation of answer sheets of the

petitioners after they appear in the said examination.

June 3rd 2011                    KAILASH GAMBHIR, J




       W.P.(C) No. 8340/2010             page 20 of 20