Kerala High Court
Nirmal Joe Bertille vs The Vice-Chancellor on 18 February, 2022
WP(C) NO. 2576 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WP(C) NO. 2576 OF 2022
PETITIONER:
NIRMAL JOE BERTILLE
MERLIN COTTAGE
HOUSE NO.6
ANJALY NAGAR
KOCHUPILAMOODU
KOLLAM, PIN - 691013
BY ADVS.
PRIYA SHANAVAS
BIJITH S.KHAN
T.RESHMA
RESPONDENTS:
1 THE VICE-CHANCELLOR
UNIVERSITY OF KERALA
SENATE HOUSE CAMPUS
PALAYAM
THIRUVANANTHAPURAM, PIN - 695033
2 THE REGISTRAR
UNIVERSITY OF KERALA
SENATE HOUSE CAMPUS
PALAYAM
THIRUVANANTHAPURAM, PIN - 695033
3 THE CONTROLLER OF EXAMINATIONS
UNIVERSITY OF KERALA
SENATE HOUSE CAMPUS
PALAYAM
THIRUVANANTHAPURAM, PIN - 695033
4 THE UNIVERSITY INSTITUTE OF MANAGEMENT
MUNDAKKAL
KOLLAM
PIN - 691010
REPRESENTED BY ITS PRINCIPAL
BY SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 2576 OF 2022 2
JUDGMENT
The petitioner states that he is pursuing his Master of Business
Administration (MBA) Degree in the University Institute of Management,
Kollam which institute is affiliated with the University of Kerala. He has
approached this Court seeking directions to the respondents to consider
Exhibit P3 representation in the light of Exhibit P2 guidelines and to revise
Exhibit P1 mark sheet.
2. Short facts are as under.
The petitioner appeared for the III Semester MBA examination
conducted by the University and when the result was published, he found that
only 35 marks out of 75 marks were awarded for his Elective-IV Financial
Market and Services (FM) paper. As the minimum marks for passing the
examination is 37.5, he was declared failed. On further enquiry, the
petitioner realized that he was awarded 57 marks by one valuer, 42 marks by
the 2nd valuer and 28 marks by the 3rd valuer. He contends that in clear
violation to the guidelines, the final marks were arrived at by working out the
average of the marks awarded in the 2nd and 3rd valuation. By adopting the
said mode, the University took the average of 42 and 28 awarded by the 2nd
and 3rd evaluator and granted the petitioner only 35 marks, being the
average. This procedure, according to the petitioner, is in clear violation of
clause 16(a)(i) of Ext.P2 Revised Guidelines for Revaluation of Answer Books
of University Examinations, 1998, which provides that the original mark
secured by the candidate will not be changed if the revalued marks are less
than the marks secured in the original valuation. In the said circumstances,
the petitioner is stated to have submitted Ext.P3 representation before the
Vice Chancellor. However, no action was taken. It is in the said
circumstances that the petitioner has approached this Court seeking the
following reliefs:
i) Issue a writ of mandamus or any other appropriate order
or direction, directing Respondents 1, 2 and 3 to consider Ext.P3
Representation in the light of Ext.P2 guideline and revise Ext.P1
mark sheet of the petitioner accordingly by awarding the petitioner
the original marks secured in the first valuation.
3. A statement has been filed by the learned Standing Counsel for
and on behalf of respondents 1 to 3 clarifying the stand of the University. It
is stated that MBA is a Postgraduate (PG) Programme and as per Ordinance
22(1) of Chapter VII of the Kerala University First Ordinance, 1978, there is
no provision for revaluation for PG Programme. For PG Programme, the
University has adopted a double valuation procedure. It is further stated that
when the scheme of double valuation is adopted, the average of marks
obtained in the first and second valuation is considered for the computation of
results. As per the Examination manual, when there is a variation of 15% or
more between marks awarded by the 1st and 2nd examiner, the answer script
would be sent for a third evaluation by a separate examiner. This would
happen without the intervention of the student concerned. When third
evaluation is done, the average of the nearest two marks (marks with
minimum deviation) of first, second and third evaluation is considered for
arriving at the result. The petitioner was awarded 57, 42 and 28 marks
respectively for the 1st, 2nd and 3rd evaluation and hence the average of 42
and 28 marks which shows the minimum difference was taken and the
resultant marks were considered for calculating the results. It is further
stated that Ext.P2 Revised Guidelines relied on by the petitioner for
revaluation of answer books of University Examinations, 1998 is not applicable
to the petitioner as it is specifically stated in Ext.P2 that there is no
revaluation for answer scripts for Post Graduate examinations. It is further
stated that at the time of scrutiny itself, the petitioner had raised a demand
for considering the average of the highest two marks but his request was
rejected by a memo dated 22.12.2021. It is thereafter that Ext.P3
representation was submitted seeking the very same request.
4. I have considered the submissions advanced.
5. The prayer sought for by the petitioner is for a consideration of
Ext.P3 representation in the light of Ext.P2 guidelines. The contention of the
learned counsel for the University is that Ext.P2 guidelines may not have any
application to the petitioner as it is specifically stated therein that application
for revaluation of answer scripts will be considered only for examinations
other than postgraduate examination. The explanation offered by the learned
standing counsel appearing for the University is that revaluation is not
provided because the scheme of double valuation is applicable to such
postgraduate courses. If that be the case, the benefit of clause 16 of Ext.P2
cannot be availed by the petitioner.
6. Ms. Priya Shanavaz, the learned counsel appearing for the
petitioner submitted that in respect of double valuation, the University cannot
justifiably come up with the guideline to the prejudice of the student.
According to the learned counsel, even in Ext.P2, if the revalued marks are
less than the marks secured in the original valuation, the original marks would
be utilized for the purpose of awarding marks. However, in the case of
postgraduate courses, the respondents take only the marks with the minimum
deviation for arriving at the results. It is contended that if the highest of the
two marks i.e., 57 and 42, were averaged, the petitioner would have secured
pass marks. There appears to be some logic in the submission vehemently
advanced by the learned counsel. In the instant case, the petitioner was able
to score only 28 marks during the third evaluation process and that is the
reason why while averaging, he secured less than pass marks. I am of the
view that the University is bound to consider the issue with an open mind and
consider whether the said guideline warrants any changes, particularly when
Ext.P2 speaks about a different valuation mode. However, since evaluation
and award of marks are within the realm of the University, it would not be
proper for this Court to interfere with the same. However, since the
petitioner has approached the 1st respondent and has filed Ext.P3
representation detailing his contentions, it is only appropriate that the same is
considered by the 1st respondent with all the seriousness that it deserves and
take appropriate decision.
7. In that view of the matter, this writ petition is disposed of
directing the 1st respondent to consider Ext.P3 in the light of what is
observed above and to take a decision expeditiously, in any event, within a
period of one month from the date of receipt of a copy of this order. Before
passing orders, an opportunity of hearing shall be granted to the petitioner.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
IAP
APPENDIX OF WP(C) 2576/2022
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MARK SHEET OF THE
PETITIONER FOR HIS ELECTIVE- IV FINANCIAL
MARKET AND SERVICES (FM) PAPER IN THE 3RD
SEMESTER EXAMINATION
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF
UNIVERSITY OF KERALA REVISED GUIDELINES
FOR REVALUATION OF ANSWER BOOKS OF
UNIVERSITY EXAMINATIONS, 1998
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE VICE-CHANCELLOR, UNIVERSITY OF
KERALA, THIRUVANANTHAPURAM, WITH COPIES TO
THE REGISTRAR, UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM, AND TO THE CONTROLLER
OF EXAMINATIONS, UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM, ON 16.01.2022
