Karnataka High Court

Shivakumar Subedar vs The Vice Chancellor And Ors on 21 April, 2021

Author: M.Nagaprasanna

                         1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

      DATED THIS THE 21ST DAY OF APRIL, 2021

                      BEFORE

     THE HON'BLE MR.JUSTICE M.NAGAPRASANNA

     WRIT PETITION No.200862/2021 (EDN-EX)

Between:

SHIVAKUMAR SUBEDAR
S/O SHARANABASAPPA SUBEDAR,
AGE.21 YEARS, OCC.STUDENT,
R/O H.NO.1-949-18-1-68,
RAM MANDIR TILAK NAGAR,
RING ROAD, KALABURAGI-585101.

                                      ...PETITIONER

(BY SMT. HEMA L. K., ADVOCATE)

AND

1.    THE VICE CHANCELLOR
      RAJIV GANDHI UNIVERSITY
      OF HEALTH SCIENCES,
      KARNATAKA, 4TH BLOCK,
      JAYA NAGAR, BENGALURU-560041.

2.    THE REGISTRAR ACADEMIC
      RAJIV GANDHI UNIVERSITY OF
      HEALTH SCIENCES, KARNATAKA,
      4TH BLOCK, JAYANAGAR,
      BENGALURU-560 011.
                            2




3.   THE REGISTRAR EVALUATION
     RAJIV GANDHI UNIVERSITY OF HEALTH
     SCIENCES, KARNATAKA, 4TH BLOCK
     JAYA NAGAR, BENGALURU-560 011.

                                       ...RESPONDENTS

(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO ISSUE WRIT OF MANDAMUS DIRECTING THE
RESPONDENTS TO GET THE ANSWER SCRIPT OF THE
PETITIONER IN RESPECT OF ANATOMY PAPER-I CODE
NO.1020 AND PAPER-II CODE NO.1021, PHYSIOLOGY
PAPER-I CODE NO.1022 AND PAPER-II CODE NO.1023,
BIOCHEMISTRY PAPER-I CODE NO.1024 AND PAPER-II
CODE NO.1025 IS PRODUCED HEREWITH AND MARKED AS
ANNEXURE-B AND B5 VALUED BY THE 3RD EVALUATOR
OR THROUGH ANY SUBJECT EXPERT OTHER THAN THOSE
WHO HAVE ALREADY VALUED HIS PAPER ON THE 1 ST AND
2ND OCCASION AND ETC.

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

                         ORDER

Heard Smt. Hema L. Kulkarni, learned counsel appearing for the petitioner and Sri Ameet Kumar Deshpande, learned counsel appearing for the respondents.

2. The petitioner in this writ petition has sought for the following prayer:

"i) Issue Writ of Mandamus directing the respondents to get the answer script of the petitioner in respect of anatomy paper-I Code No.1020 and paper-II Code No.1021, Physiology Paper-I Code No.1022 and paper-II Code No.1023, Biochemistry Paper-I Code No.1024 and paper-II Code No.1025 is produced herewith and marked as Annexure-B and B5 valued by the 3rd evaluator or through any subject expert other than those who have already valued his paper on the 1st and 2nd occasion, in the interest of justice and equity.

ii) Issue writ of mandamus directing the respondent No.3 to consider the representation of petitioner at Annexure-C dated 7.4.2021."

and has also sought for consideration of his

representation seeking the re-evaluation of the

answer scripts in the light of there being erratic

evaluation.

3. The petitioner has knocked the doors of

this Court seeking re-evaluation of his answer scripts

on the ground that he has failed in Anatomy

Physiology and Biochemistry and the evaluation done

by the Evaluator Nos.1 and 2 vary to a large extent

and has sought for re-evaluation of such papers.

4. The learned counsel has placed on record

the answer scripts and the marks awarded on such

answer scripts. Though this Court would not go into

the contents of the answers to the questions for the

answer scripts, a bare perusal of the marks awarded

to the candidate would indicate that it is erratic as one

Evaluator awarded '2' marks, to the same question

and the second would award '0' marks and vice-versa.

There are many instances of the kind, which are as

follows:

Q.P.Code : 1021/Anatomy Paper-II:

Question No.                Evaluation Level
                I                     II

     4A                 0                      0.5

Q.P.Code : 1022/Physiology TP-1:

Question No.                Evaluation Level
                I                     II

Q.P.Code : 1023/Physiology TP-II:

Question No.                Evaluation Level
                I                     II


      21                0                      0.5
      22                0                      0.5

Q.P.Code : 1024/Biochemistry TP-1:

Question No.                Evaluation Level
                I                     II

     14A                0                      0.5








Q.P.Code    : 1025/Biochemistry TP-2:

Question No.                  Evaluation Level
                    I                   II







     5.     Though       the    learned    counsel      for   the

respondent,       Sri   Ameet   Kumar      Deshapnde      would

vehemently oppose the writ petition and contend that

such indulgence should not be shown by this Court in

directing for re-evaluation. The learned counsel

further relies upon the judgment of this Court in

W.P.No.45783/2017. Notwithstanding this objection, it

is useful to refer to an order passed by this Court

considering an identical erratic evaluation in

W.P.No.205226/2019, wherein this Court held as

follows:

"3. Learned counsel further pointed out that the marks awarded by the valuators indicate that there is no objectivity in the valuation of the answer scripts. He pointed out

that in Question No.8, the 1st valuator has awarded zero mark whereas the 2nd valuator has awarded 3 marks and in respect of Question Nos.9, 20 and 22, the 1st valuator has awarded one mark each whereas the 2nd valuator has awarded zero mark, which itself suggests that the evaluation is erratic and to some extent subjective in nature and thus pleads for valuation by the 3rd valuator. In support of her submission, the learned counsel has placed reliance on the decision of this Court in W.P.No.206907/2015 dated 02.06.2016.

4. The submission is strongly opposed by the learned counsel appearing for the respondent. The learned counsel for respondents at the outset pointed out that the orders in W.P.No.206907/2015 was passed on concession and not on merit. In the instant case, no grounds are made out by the petitioner to grant any concession. The rules governing the examination, prohibit 3rd valuation in the absence of difference of marks between the 1st valuation and the 2nd valuation being more than 15% of the maximum marks prescribed for the paper and thus seeks to dismiss the petition. He has placed reliance on the decision of the Hon'ble Supreme Court in Uttar Pradesh Public Service Commission vs Rahul Singh and another, reported in (2018) 7 SC Cases 254 and laid emphasis on para 10, wherein it is held as under:

"10. In Ram Vijay Singh v.

State of U.P., this Court after referring to a catena of judicial pronouncements summarised the legal

position in the following terms: (SCC pp.

368-69, para 30)

"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:

30.1 If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;

30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;

30.3. The Court should not at all re-evaluate or scrutinise the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics;

30.4. The Court should presume the correctness of the key answers and proceed on that assumption; and

30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."

5. In the instant case without getting down into any inferential process, a mere perusal of the marks awarded by the two valuators as reflected in Annexure-B would indicate that there is unexplainable margin in the marks awarded by two valuators in respect of some of the answers. As already pointed out in respect of question No.8, the 1st valuator has awarded zero mark whereas the 2nd valuator has awarded 3 marks. Likewise in question Nos.9, 20 and 22, the 1st valuator has awarded one mark each whereas the 2nd valuator has awarded zero mark, which appears to be unempirical on the face of the record. In the said circumstances, it would be just and appropriate to direct the respondent to get the Otorhinolaryngology (ENT) answer scripts revalued by the 3rd valuator at the cost of the petitioner.

6. Accordingly, the petition is allowed. Respondent is directed to get the answer script of the petitioner in respect of Otorhinolaryngology (ENT) paper bearing Code No.1090 vide Anenxure-B valued by the 3 rd evaluator or through any subject expert other than those who have already valued the said paper within three weeks from the date of communication of this order."

6. Therefore, for the reasons indicated in the

aforesaid judgment which is accepted by the

respondents - University, the subject writ petition

deserves to be considered on the same lines. The

judgment relied on by the learned counsel appearing

for the respondent is inapplicable to the facts of the

case and the one that is relied on by the learned

counsel appearing for the petitioner covers the issue

on all fours.

7. In my considered view, the evaluation by

the examiners as extracted herein above are palpably

and demonstrably erratic. The co-ordinate Bench