Dr. Vinita Prasad vs Aryabhatta Knowledge University
2021 Latest Caselaw 979 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.7692 of 2020
     ==============================================

1. Akhalesh Kumar Son of Late Ram Chandra Rabidas, resident of Village-

Ranipur, P.O.- Ranipur, P.S.- Islampur, District- Nalanda.

2. Deo Kumar Singh, Son of Shri Sikandar Singh, resident of C/o Matrichaya Opposite Donar Petrol Pump Darbhanga, P.S. Sadar, District- Darbhanga.

3. Himanshu Kumar Son of Late Kapildeo Paswan, resident of Village-

Nanhkumandal Tola, P.O.- Durgapur, P.S. Mufasil Khagaria, District- Khagaria.

4. Sanjay Kumar Sahni, Son of Sri Bhola Sahni, resident of Ward no. 8, Gram Ajnauli, P.S. Barha Benipatti, P.S. Bisfi, District- Madhubani.

... ... Petitioner/s Versus

1. Aryabhatta Knowledge University Mithapura, Patha through its Vice-

Chancellor.

2. The Vice-Chancellor, Aryabhatta Knowledge University, Mithapur, Patna.

3. The Examination Controller, Aryabhatta Knowledge University, Mithapur, Patna.

... ... Respondent/s ============================================== with Civil Writ Jurisdiction Case No. 7708 of 2020 ==============================================

1. Dr. Vinita Prasad daughter of Shri Ram Chandra Prasad, wife of Dr. Nakul Choudhary, at present residing at PMCH Campus, Qtr. NO. 7, MCPW, Ashok Rajpath, District-Patna.

2. Shaivya Saurav, Daughter of Binay Kumar Hira, resident of Village-

Paduma, District-Madhubani at present residing at Kamle Road, Vidyanagar, P.S.-Jainagar, District-Madhubani.

... ... Petitioner/s Versus

1. Aryabhatta Knowledge University Mithapura, Patna through its Vice-

Chancellor.

2. The Vice-Chancellor, Aryabhatta Knowledge University, Mithapur, Patna.

3. The Examination Controller, Aryabhatta Knowledge University, Mithapur, Patna.

... ... Respondent/s Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

============================================== with Civil Writ Jurisdiction Case No. 7811 of 2020 ============================================== Dr. Pant Suresh Keshava S/o Rajeshwar Prasad R/o Village-Aungari, P.S. Aungari, District-Nalanda.

... ... Petitioner/s Versus

1. Arayabhatta Knowledge University Mithapur, Patna through its Vice Chancellor

2. Vice Chancellor, Arayabhatta Knowledge University, Mithapur, Patna.

3. Examination Controller, Arayabhatta Knowledge University, Mithapur, Patna.

... ... Respondent/s ============================================== Appearance :

(In Civil Writ Jurisdiction Case No. 7692 of 2020) For the Petitioner/s : Mr. Anil Kumar Singh Mr.Bela Singh, Adv.

For the Respondent/s : Mr.Priyank Deepak, Adv. (In Civil Writ Jurisdiction Case No. 7708 of 2020) For the Petitioner/s : Mr. Anil Kumar Singh, Adv.

                                 :       Ms.Bela Singh, Adv.
       For the Respondent/s :            Mr.Awadhesh Kumar, Adv.

(In Civil Writ Jurisdiction Case No. 7811 of 2020) For the Petitioner/s : Mr. Sandip Kumar, Adv.

                                 :       Mr.Alok Kumar @ Alok Kr Shahi, Adv.
       For the Respondent/s :            Mr.Awadhesh Kumar, Adv.

============================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 19-02-2021

1. Heard Mr. Anil Kumar Singh and Mr. Sandip

Kumar, learned counsel for the petitioners and Mr.

Awadhesh Kumar, learned counsel for the respondents.

2. The petitioners had approached this Court

initially as no decision was being taken by the Vice Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

Chancellor of the Arayabhatta Knowledge University on the

representations preferred by them for re-evaluation / re-

totaling of their answer sheets.

3. During the pendency of the writ petition and

after first hearing before this Court, the petitioners were

intimated that their answer-sheets had been sent for re-

evaluation / re-totaling before the grievance committee,

constituted for the purpose and based on that report, which

indicated that there was no need for any interference with

the marks allotted to the petitioners, the Vice Chancellor

rejected the contention of the petitioners that interference in

the assessment was required.

4. The aforesaid order of the Vice Chancellor dated

15.09.2020 is under challenge.

5. Learned counsel for the petitioners have taken

great pains to demonstrate before this Court that there was

no proper assessment of their answer-sheets and almost all

the petitioners, who have had brilliant academic record, have

failed by slender margin in one or the other papers. To

support their contentions, the petitioners have brought on Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

record the answer-sheets which they have obtained under

the R.T.I. and have raised grievance that there are no

internal markings; there is evidence of interpolation in the

O.M.R. sheets and at many places, the re-writing /cuttings

have not been countersigned. In one of the papers brought

on record by one of the petitioners, there is an apparent

mistake in addition of marks awarded in different questions.

The initial plea of the petitioners was that the Vice

Chancellor had apparently told them that no interference

would be made without the intervention of the Court but

shortly thereafter, they were intimated, as noted above, that

their answer-sheets were sent to a duly constituted

committee which had reported that there was no need of re-

evaluation, re-look or re-totaling.

6. However, the petitioners are very vehement in

their contention that such an order under Section 21 D of

the Statutes of the University by the Vice Chancellor came at

the most inopportune time i.e. only after first hearing in the

writ petition was done. Learned counsel for the petitioners,

therefore state that the order impugned is mechanical and Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

appears to have been taken out of rigid stand that the

decision of the University cannot be faulted with by the

students / petitioners / examinees.

7. Mr. Anil Kumar Singh, learned counsel for some

of the petitioners has raised an additional ground that

according to the Medical Council of India Post Graduate

Medical Education Regulation 2000, as amended upto date in

2018, there is a mandatory requirement of appointing /

hiring at least four examiners in each subject, out of which,

at least fifty percent are compulsorily to be the external

examiners. The rules further mandate that the external

examiners have to fulfill certain criteria, which have been

listed in the rules. Only under exceptional circumstances,

examination could be held with lesser than four examiners

( three examiners) and that also when two of them are

external examiners. In that event, the Medical Council of

India is required to be intimated about the justification of

conducting examination in that manner and in that case,

result shall be published with the approval of Medical Council

of India.

Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

8. Mr. Singh, learned advocate contends that the

aforesaid requirement is not optional ; rather mandatory.

The petitioners claim that if such requirement has not been

fulfilled, the entire evaluation, then, becomes suspect in the

eyes of law, even if it be with respect to the entire batch,

which may have many such examinees.

9. Faced with such an argument, this Court

directed the learned counsel for the Arayabhatta Knowledge

University to provide the list of examiners which direction

was promptly complied with. The list of the examiners clearly

indicates that for different subjects, there were only one

examiner.

10. Mr. Awadhesh Kumar, learned Advocate for the

University in support of his contention that the examination

has been held in proper manner, has submitted that the

requirement of four examiners or in special circumstance,

three examiners is only limited for the time when the

examination is conducted but not for evaluation of papers.

11. This Court is absolutely reluctant and loath to

accept this interpretation of the rules. Mr. Kumar had tried Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

to contact the office of the Medical Council of India to have a

clear instruction with respect to the interpretation of the

aforesaid rule of the Medical Council of India but he could

not get any response.

12. This Court is prima facie of the view that such

an interpretation is highly meretricious and is not acceptable

for the reasons that invigilation while conducting an

examination at a centre and evaluation of answer-sheets are

two different aspects of conducting an examination and by

no stretch of imagination could these be taken to be

synonymous.

13. The contention of the petitioners is further

attempted to be repelled by the University on a technical

ground that the decision of the Vice Chancellor under

Section 21D of the Statutes of the University or of the

decision of the scrutiny committee, so constituted for the

purpose of looking into the grievance of the students, is

limited and circumscribed by the grounds raised in the

representations. To further specify, Mr. Kumar, learned

counsel for the respondent / University has argued that the Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

representations of the petitioners only seek re-evaluation

and, therefore, now the petitioners cannot raise the

grievance that the assessment made by the examiners in the

first instance and verified by the scrutiny committee require

interference because it was not done properly in as much as

requisite number of examiners were not engaged to

evaluate the answersheets.

14. It would be relevant here in this context to state

that the petitioners were not aware whether such rule of the

University requiring hiring of at least four examiners was

followed. Their contentions were based solely on the report

of a private hand-writing expert who was shown the answer-

sheets. His report clearly indicates that from the markings on

the answer-sheets, there could be no manner of doubt that it

was in the hand-writing of a single person/examiner.

15. On such assessment, this Court had called for a

categorical information from the University and the report,

which has been submitted by learned counsel for the

respondent / University indicates that every subject had

solitary examiners. That this Court is not going into this Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

question right now is only for the reason that delving any

further on the issue would render the entire examination of

post graduate course bad in the eyes of law, which would

neither be conducive for the students nor for the University.

This Court leaves the issue at that but the University ought

to be careful and should endeavor to abide by the M.C.I.

Rules in totality. There can be no justification whatsoever for

breach of any one of the rules which are couched in

mandatory terms.

16. Now to the meat of the matter.

17. In one of the writ petitions, it has been

contended that the answer-sheets so obtained under the

R.T.I. was shown to a professor of the subject, who was of

the view that the petitioners ought to have been awarded

more marks in the theory papers.

18. This assessment of an examiner about whom the

Court has no idea cannot be the basis for doubting the

quality / nature of assessment. Apart from this, Mr. Kumar

learned counsel for the respondent / University has brought

on record the constitution of the grievance committee, which Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

has scrutinized the answer-sheets of the petitioners and has

also furnished the report submitted by such committee. With

respect to the petitioner, the committee is of the considered

view that no interference is required with respect to their

assessment, re-evaluation and retotalling.

19. The report of the scrutiny committee was shown

to the learned counsel for the petitioners, who have raised

an objection that the report so furnished in the Court by Mr.

Kumar, learned counsel for the respondent / University is not

complete in as much as it is not known as to how that

decision was arrived at.

20. This Court has no manner of doubt that there is

nothing in the Statutes of the University which obligates the

grievance committee so constituted for the purpose to state

in detail the reason for it to come to a particular conclusion.

In fact, there is also no provision in the Statutes of the

University, which compulsorily require such grievance

committee to consist of experts of the subjects in which the

grieving examinees have failed and want their answer-sheets

re-evaluated.

Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

21. Under such circumstances, it would be difficult

for this Court to place no confidence on the report of the

grievance committee or the consequent decision of the Vice

Chancellor of accepting the report of the grievance

committee. However, certain things have become glaring and

conspicuous while hearing this batch of writ petitions. In

many of the answer-sheets, there are no internal markings.

The interpolation in the first page of the O.M.R. sheets, in

some of the answer-books have not been signed/

countersigned. The decision of the Vice Chancellor came

shortly after the first hearing was done in thesecases. If the

papers of the examinees were examined by the grievance

committee/scrutiny committee, it would for sure have

noticed the faulty addition of marks in one of the papers.

These lapses are apparent and they are not indicative of any

hawk /dove effect in the evaluation system in the

examination, much less in a professional post-graduate

course.

22. This court is conscious of the fact that the scope

of judicial review in the matters of re-examination and re- Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

evaluation is very limited. The Hon'ble Supreme Court in

Ranvijay Singh and others vs. State of Uttar Pradesh

and Others (2018) 2 SCC 357 after referring to various

decision on the issue viz. Himachal Pradesh Public

Service Commission vs. Mukesh Thakur (2010) 6 SCC

375; Kanpur University vs. Samir Gupta (1983) 4 SCC

309; Maharashtra State Board of Secondary and

Higher Secondary Education vs. Paritosh

Bhupeshkumar Sheth (1984) 4 SCC 27; and Pramod

Kumar Srivastava v. Chairman, Bihar Public Service

Commission (2004) 6 SCC 714 has noted down the broad

propositions on the subject under discussion. For ready

reference and also for the sake completeness, paragraph -30

of the afore-noted judgment is being extracted herein

below:-

"30. The law on the subject is therefore, quite

clear and we only propose to highlight a few

significant conclusions. They are: (i) If a

statute, Rule or Regulation governing an

examination permits the re-evaluation of an

answer sheet or scrutiny of an answer sheet Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

as a matter of right, then the authority

conducting the examination may permit it; (ii)

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; (iii) The Court should not at

all re-evaluate or scrutinize the answer sheets

of a candidate - it has no expertise in the

matter and academic matters are best left to

academics; (iv) The Court should presume the

correctness of the key answers and proceed on

that assumption; and (v) In the event of a

doubt, the benefit should go to the

examination authority rather than to the

candidate".

23. The Hon'ble Supreme Court has summarized in Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

absolute and clear terms that re-evaluation of an answer-

sheet or its scrutiny can only be directed if the rules so

permit. That also can only be resorted to if it is

demonstrated unmistakably, without inferential process of

reasoning or rationalization that a material error has been

committed. The formulations clearly spell out that the Courts

do not have the necessary expertise and the wherewithal to

asses the evaluation in a subject or assess the quality of

assessment by experts of the subject. Though the issues in

Ranvijay Singh (supra) were different and related to the

dispute over the correct answers in the key provided by the

examiners but the proposition that the presumption should

be in favour of the examination taking body remains

constant so far as the examination / evaluation is concerned.

The Hon'ble Supreme Court has also in a way castigated that

despite several decisions of the Supreme Court, interference

is made in the assessment at the drop of the hat. However,

after having said that, the Hon'ble Supreme Court has also

underlined the importance of interference in such matters if

it is required on a deep scrutiny by a Court of law. There Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

could be no fetters on the vast reservoir of powers under

Article 226 of the Constitution of India while the same is

being exercised in special cases.

24. That this Court has left the issue with respect to

the interpretation of the M.C.I. Rules requiring minimum

number of examiners for the present or else it would be

undermining the efforts of the examination taking body in

conducting the examination especially the enormity of the

entire process and the uncertainty, which it would bring in its

wake in the minds of students who have passed the

examinations and have gone to the higher class.

25. This Court is absolutely clear in its mind that it is

examining the contention of the petitioners with respect to

their answer-sheets and has not in any manner put the

University or the examiners in the dock. They have not been

rendered the subjects of inquiring at the hands of the Court.

26. But this indulgence may not be misunderstood

as ratification of every lapse that the University has

committed or would commit in future.

27. Mr. Sandip Kumar, learned counsel for the Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

petitioners in one of the writ petitions has submitted that in

many cases, different Benches of this Court have directed

the Vice Chancellor to re-consider the cases of the respective

examinees with respect to the re-evaluation of their answer-

sheets.

28. Mr. Awadhesh Kumar, learned counsel for the

respondent / University on the contrary has pointed out that

the same Bench, has in some of the cases, refused to

interfere on the ground that no malafides have been alleged

or could be discerned from the report of the scrutiny

committee or from the decision of the Vice Chancellor, who

has exercised his power under Section 21 D of the Statutes

of the University.

29. Be that as it may, since this Court has found

that there are lapses in the evaluation and which have not

been noticed by the grievance committee / scrutiny

committee, this Court deems it appropriate direct the Vice

Chancellor of the Arayabhatta Knowledge Univesity for re-

considering the case of the petitioners afresh with respect to

their grievance. Should the Vice Chancellor of the University Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

take a decision that a re-evaluation / re-totaling is required,

he may refer the answer-sheets to the same scrutiny

committee, which was constituted for the purpose as this

Court has apparently not found anything to express its

dissatisfaction over their assessment. In case, on a

reconsideration also, it is found that no interference is

required in the case of the petitioners, that should put a

quietus to the dispute.

30. At this point, learned counsel for the petitioners

have informed this Court that after having failed in one or

the other of the papers, the petitioners have re-appeared in

the examination. There would arise some difficulties if on a

reassessment, the petitioners again fail and in the

examination in which they have appeared afresh, they pass.

Which result shall prevail needs to be clarified.

31. This Court is firmly of the view that the

University is not required to take any rigid or pedantic stand

because it ought to be conscious of the fact that it is dealing

with the lives of the students, who are the wealth of the

nation. The growth of a University is largely dependent on Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

the quality of the students that it churns out. University does

not remain a place only for learning the tricks of the trade or

expertise in a particular field but it also must endeavour to

assist the students in developing a complete personality,

specially in the subject which they are pursuing. If a

University has a large number of grieving students that they

have not been assessed properly, it would not be good for

the status and reputation of the University. At the same

time, every self-assessment of the student is not to be taken

as the correct assessment. This is a tight rope walk for any

educator or the University.

32. Keeping this in mind, this Court has given a

direction to the Vice Chancellor to reconsider the case of the

petitioners with the liberty to him to take the decision to his

own satisfaction. While directing for reconsideration, the

Court has been rather careful in not placing unnecessary

and undue sympathy over the claim of the students. In case

the petitioners pass in their re-assessment if it is ordered,

that should be taken as their marks and no rigid stand be

taken by the University that if they fail in the re-assessment Patna High Court CWJC No.7692 of 2020 dt.19-02-2021

but pass in the re-examination, the benefit of the result in

the fresh examination shall not be accorded.

33. This Court clarifies that this order may not be

treated as a precedent.

34. The writ petition stands disposed of with the

aforesaid observation.

(Ashutosh Kumar, J) sunilkumar/-

AFR/NAFR              AFR
CAV DATE              N/A
Uploading Date        23.02.2021
Transmission Date     N/A