Dr Devender Banavath Hall Ticket ... vs The State Of Telangana
2021 Latest Caselaw 4584 Tel

         HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY

                        WRIT PETITION No.27869 OF 2021

ORDER :

Aggrieved by the action of respondent Nos.2 to 4 herein in not

following the guidelines / principles laid down by the erstwhile

common High Court for the State of Telangana and for the State of

Andhra Pradesh in Dr. P. Kishore Kumar v. State of A.P.1 and

Dr. J. Kiran Kumar v. State of A.P.2 as illegal, arbitrary and

violative of Articles 14 and 21 of the Constitution of India, this writ

petition is filed by the petitioners.

2. The case of the petitioners is that directions given to

respondent Nos.2 to 4 in evaluating answer scripts in the digital

evaluation process by putting tick marks, 'x' marks, making remarks

on the digital answer scripts by using digital tools like stylus etc.,

in respect of the Post Graduate Courses' examinations held in the

month of July / August 2021 are not followed by them and the

petitioners were not allowed to physically verify their answer scripts

and also were not furnished copies of their answer scripts contrary to

the afore-referred two decisions of the erstwhile common High Court.

3. There is not much controversy regarding facts of the case, as

such, the same are not discussed in detail.

2016 (6) ALT 408)

2017 (6) ALT 213

4. There is no dispute that evaluation of answer scripts of the

petitioners, who have appeared in Post Graduate examinations, was

done through digital process. The respondents have not followed the

principles laid down in the afore-referred two decisions of the

erstwhile common High Court whereunder there was a clear direction

that answer scripts have to be evaluated by awarding marks on digital

answer scripts by using digital tools like stylus etc., and instead marks

were awarded on a separate script (marks report) attached to the

answer scripts. Petitioner Nos.1, 5 and 11 have filed their respective

Post Graduate examinations with '1' mark less, petitioner No.6 failed

with '2' marks less, petitioner Nos.3, 8, 9 and 10 failed with '3' marks

less, petitioner No.12 failed with '4' marks less, petitioner Nos.4 and

7 failed with '5' marks less and petitioner No.2 failed with '6' marks

less. Thus, the petitioners have failed with a slight margin between 1

and 6 marks.

5. Heard Sri D.V. Nagarjuna Babu, learned counsel for the

petitioners, learned Government Pleader for Medical and Health and

learned Additional Advocate General for Sri A. Prabhakar Rao,

learned standing counsel for Kaloji Narayana Rao University of

Health Sciences (respondent Nos.2 to 4), and perused the material on

record.

6. Sri D.V. Nagarjuna Babu, learned counsel for the

petitioners, has submitted that all the petitioners have failed with a

slight margin and some of the students who got one mark less were

also declared failed. Even if the candidate fails in one paper, he has to

re-write all the papers. The evaluation process is a mockery.

Hitherto, manual evaluation was adopted and digitalized evaluation

was started in 2016. The answer scripts are subjected to scanning and

scanned answer scripts are being evaluated by 4 (four) examiners

indicating marks on the script memo, which is annexed to the script, is

a known phenomenon for correcting OTQs and not for SA Type

Questions. In Dr. P. Kishore Kumar's case (Supra 1), it was held

that judicial review is not unavailable. The judgment in

Dr. P. Kishore Kumar's case (Supra 1) was followed in the

subsequent judgments of this Court in Dr. J. Kiran Kumar's case

(Supra 2) and W.P. No.13965 of 2019 and batch and W.P. Nos.2236

and 2412 of 2021. The order dated 05.08.2019 in W.P. No.13965 of

2019 was confirmed by the Division Bench of this Court in W.A.

No.757 of 2019 vide judgment dated 25.09.2021.

7. On the other hand, the learned Additional Advocate General

has submitted that there is no settled law on re-evaluation. No relief is

sought in the writ petition touching upon evolution of any law.

The main stress of the petitioners is that the principles laid down by

the erstwhile common High Court in Dr. P. Kishore Kumar's case

(Supra 1) are not followed. The petitioners have not pointed out any

violation with reference to statutory regulations. There is no ratio

decidendi laid down in Dr. P. Kishore Kumar's case (Supra 1).

There are no pleadings in the writ petition stating that answer sheets

have not been properly evaluated. The observation of this Court in

Dr. P. Kishore Kumar's case (Supra 1) is obiter dicta and not a ratio

decidendi. The petitioners have come before this Court on a

misplaced sympathy. The allegation of mockery is unfounded.

There is no material to establish that evaluators have violated any

rules. What is law is to be interpreted by the Courts and the

observations made in Dr. P. Kishore Kumar's case (Supra 1) cannot

be treated as law which has only a persuasive value and not

precedential value. The suggestions given are for future evaluation

and they are recommendatory and do not have binding effect.

Re-evaluation is not permissible under law and it is an admitted fact

that what is sought in the writ petition is re-evaluation. Direction

given by the erstwhile common High Court for re-evaluation has been

set aside by the Supreme Court.

8. In reply to the arguments of the learned Additional Advocate

General, the learned counsel for the petitioners has submitted that the

order in Dr. P. Kishore Kumar's case (Supra 1) was implemented

after the same was upheld by the Division Bench. Mandatory

directions issued in Dr. P. Kishore Kumar's case (Supra 1) have not

been complied with. It was held by the Hon'ble Supreme Court in

Sahiti v. Chancellor, Dr. N.T.R. University of Health Sciences3

that power of Vice Chancellor cannot be curtailed. In the judgment in

(2009) 1 SCC 599

W.P. No.13965 of 2019, directions were issued to follow the

guideliens in P. Kishore Kumar's case (Supra 1).

9. The following observations are made in Dr. P. Kishore

Kumar's case (Supra 1):

"29. The online evaluation as illustrated above when is pointed out to the representative of service provider, the representative has fairly admitted that the scanned answer sheets produced in the batch of cases show no trace of evaluation by the Examiners. It is pertinent to remark that the utilization of available technology such as Abode, PDF format, Wacom, Stylus etc., would have certainly helped the Unviersity to achieve the objectives which it wanted to achieve by online evaluation. Use of available tools could have furnished complete accurate and reliable Diagnostic Reports. ... ... ... the Court has examined the deficiency in online evaluation and to that extent, it is not the case of respondents that judicial review is unavailable. To the limited extent judicial review is permitted particularly by following ratio decidendi of (1) Sahiti's case (2) Adiya Bandopadya's case, (3) D.Suvankar's case, the discussion is concluded. Further the Script Marks Report copied and posted in respect of a few answer shets concur with the omissions and commissions pointed out by the petitioners.

30. ... ... ...

31. Now online evaluation can be implemented for all examinations. The 2nd respondent reviews the infrastructure and technical compatibility of online evaluation facilities at all centres and appropriate

further directions to all colleges/ students are issued so that the change now introduced is made a rule or practice in the University. From the resolution dated 31.08.2016, it can be said that the Vice Chancellor has obtained ex post facto approval for the midway change from manual to online evaluation and by the experience now gained, and in view of the principle laid down in Sahiti's case (1 supra), this Court is of the view that the Vice Chancellor of 2nd respondent University is entitled to take steps as are required for accurate diagnostic reports for the prognosis / disease now complained in this batch of writ petitions.

32. ... ... ...

(a) ... ... ...

(b) ... ... ...

(c) ... ... ...

(d) The legitimate expectation of a student is that the answers written are at least looked at and appreciated for evaluation. In the case on hand, with the illustration given above, this Court is of the view that Script Answers Reports are treated as evaluation of answer scripts and no material is placed to satisfy that the evaluation of answer scripts, in fact, had taken place and Script Marks Report is the summary of such evaluation."

In Dr. J. Kiran Kumar's case (Supra 2), the following observations

are made:

"24. ... ... the marks were filled up in a separate marks sheet and that is the reason why when an opportunity was given to the candidates to verify

their answer sheets, the digital sheets were not shown to them, but only manual scripts were shown. If the digital evaluation method is transparent, each answer script evaluated by the examiner by using the tools provided for it should be saved for future review in order to see whether the examiner has applied his mind while evaluating the answer scripts or not."

10. The decisions in Dr. P. Kishore Kumar's case (Supra 1)

and Dr. J. Kiran Kumar's case (Surpa 2) were followed in W.P.

No.13965 of 2019 and batch which was disposed of on 05.08.2019

and the same was confirmed by the Division Bench vide judgment

dated 25.09.2019 in W.A. No.757 of 2019.

11. The learned counsel for the petitioners has drawn attention

of this Court to the submissions made by the learned Additional

Advocate General in W.P. Nos.2236 and 2412 of 2021 which was

disposed of on 06.04.2021 whereunder a categorical statement was

made that answer scripts of the petitioners would be evaluated in

terms of the orders passed by this Court in W.P. No.13965 of 2019

dated 05.08.2019.

12. The learned Additional Advocate General relied on the

decisions of the Hon'ble Supreme Court in Sanchit Bansal v. Joint

Admission Board4, Directorate of Film Festivals v. Gaurav

Ashwin Jain5, Ramesh Chand Daga v. Rameshwari Bai6 Pramod

Kumar Srivastava v. Chairman, Bihar Public Service

(2012) 1 SCC 157

(2007) 4 SCC 737

(2005) 4 SCC 772

Commission, Patna7, All India Council for Technical Education v.

Surinder Kumar Dhawan8, and Sahiti v. Chancellor, Dr. N.T.R.

University of Health Sciences9.

In Sanchit Bansal's case (Supra 4), the Hon'ble Supreme Court has

held as under:

"24. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth it was observed thus: [(1984) 4 SCC 27 pp. 56 & 57, para 29]

"29. ...the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."

25. In All India Council for Technical Education v.

Surinder Kumar Dhawan this Court held: [(2009) 11 SCC 726p. 732, paras 16 & 17]

"16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit

(2004) 6 SCC 714

(2009) 11 SCC 726

(2009) 1 SCC 599

courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realising the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.

17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted. applied or or enforced, with reference to or connected with education, the courts will step in." (emphasis supplied)

In Directorate of Film Festivals's case (Supra 5), the Hon'ble

Supreme Court has held as under:

"16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts d advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, e fairer or wiser alternative is available. Legality of the policy, and not the wisdom

or soundness of the policy, is the subject of judicial review (vide Asif Hameed v. State of J&K1989 Supp (2) SCC 364, Sitaram Sugar Co. Ltd. v. Union of India (1990) 3 SCC 223, Khoday Distilleries Ltd. v. State of Karnataka(1996) 10 SCC 304, BALCO Employees' Union v. Union of India(2002) 2 SCC 333, State of Orissa v. Gopinath Dash(2005) 13 SCC 495: 2006 SCC (L&S) 1225 and Akhil Bharat Goseva Sangh (3) v. State of A.P.(2006) 4 SCC 162).

In Ramesh Chand Daga's case (Supra 6), the Hon'ble Surpeme

Court has held as under:

"Construction of the judgment

19. A judgment, as is well known, is not to be read as a statute. A judgment, it is trite, must be construed upon reading the same as a whole. For the said purpose the attendant circumstances may also be taken into consideration. (Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 and P.S. Sathappan v. Andhra Bank Ltd. (2004) 11 SCC 672)."

In Pramod Kumar Srivastava's case (Supra 7), the Hon'ble Supreme

Court has held as under:

9. ... It is the specific case of the Commission that in order to achieve such an objective, a centralised system of evaluation of answer-books is adopted wherein different examiners examine the answer- books on the basis of model answers prepared by the Head Examiner with the assistance of other

examiners. It was pleaded in the letters patent appeal preferred by the Commission and which fact has not been disputed that the model answer was not supplied to the two teachers of Patna Science College. There can be a variation of standard in awarding marks by different examiners. The manner in which the answer-books were got evaluated, the marks awarded therein cannot be treated as sacrosanct and consequently, the direction issued by the learned Single Judge to the Commission to treat the marks of the appellant in General Science paper as 63 cannot be justified.

In All India Council for Technical Education's case (Supra 8),

the Hon'ble Supreme Court has held as under:

"17. The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, courts will step in. In Dr. J.P. Kulshreshtha v. Chancellor, Allahabad University this Court observed: (1980 3 SCC 419, pp 424 and 426, paras 11 and 17)

"11. Judges must not rush in where even educationists fear to tread...

17. ...While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."

13. The guidelines issued in Dr. P. Kishore Kumar's case

(Supra 1) and Dr. J. Kiran Kumar's case (Supra 2) have been

followed in the several subsequent decisions. The respondents herein

have implemented such guidelines and evaluated answer scripts as

and when aggrieved students have approached this Court.

14. The contention of the learned Additional Advocate General

that the decision in Dr. P. Kishore Kumar's case (Supra 1) is only an

obiter dicta and not ratio decidendi cannot be sustained.

The decisions in Dr. P. Kishore Kumar's case (Supra 1) and

Dr. J. Kiran Kuamr's case (Supra 2) have been consistently

followed and have attained finality. It would be too late in the order

of the day to contend that the observations in the said decisions have

to be treated only as an obiter dicta and not as a ratio decidendi.

In Arun Kumar Agarwal v. State of MP10, the Hon'ble Supreme

Court made the following observations:

"22. According to Words and Phrases, Permanent Edn., Vol. 12-A, the term "direction" means a guiding or authoritative instruction, prescription, order, command.

23. To sum up, the direction issued by the Court is in the nature of a command or authoritative instruction which contemplates the performance of certain duty or act by a person upon whom it has been issued.

The direction should be specific, simple, clear and just and proper depending upon the facts and

(2014) 13 SCC 707

circumstances of the case but it should not be vague or sweeping.

...

25. According to P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn., 2005), the expression "observation" means a

"view, reflection; remark; statement; observed truth or facts; remarks in speech or writing in reference to something observed".

26. Wharton's Law Lexicon (14th Edn., 1993) defines the term "obiter dictum" as an opinion not necessary to a Judgment; an observation as to the law made by a Judge in the course of a case, but not necessary to its decision, and therefore, of no binding effect; often called as obiter dictum, 'a remark by the way'.

27. Black's Law Dictionary, (9th Edn., 2009) defines the term "obiter dictum" as:

"Obiter dictum.--A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). -- Often shortened to dictum or, less commonly, obiter. ...

'Strictly speaking an "obiter dictum" is a remark made or opinion expressed by a judge, in his decision upon a cause, "by the way"--that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the Judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech

of lawyers, all such extrajudicial expressions of legal opinion are referred to as "dicta", or "obiter dicta", these two terms being used interchangeably.'"

...

30. The concept of "dicta" has been discussed in Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 26, Para 574 as thus:

"574. Dicta.--Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose in hand are generally termed 'dicta'. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a Judge are known as 'obiter dicta', whilst considered enunciations of the Judge's opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed 'Judicial dicta'. A third type of dictum may consist in a statement by a Judge as to what has been done in other cases which have not been reported.

...

32. In State of Haryana v. Ranbir [(2006) 5 SCC 167 : 2006 SCC (L&S) 1012], this Court has discussed the concept of the "obiter dictum" thus: (SCC pp. 171-72, para 13)

"13. ... A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a

viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521] . It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Karnataka SRTC v. Mahadeva Shetty [(2003) 7 SCC 197 : 2003 SCC (Cri) 1722])."

Taking into consideration the ratio laid down in the above

decision, this court is of the opinion that the directions given in

Dr. P. Kishore Kumar's case (Supra 1) and Dr. Kiran Kumar's

case (Supra 2) have precedential value inasmuch as the decisions

therein relate to the method and manner in which digital evaluation is

conducted and detailed guidelines and directions are issued.

Thus, the argument of the learned Additional Advocate General that

guidelines issued in those judgments are only passing observations

and are obiter dicta is without any merit.

15. The further contention of the learned Additional Advocate

General that awarding marks on each answer script would influence

the other examiner/s cannot be accepted for the reason that the

respondents have neither raised such plea in the earlier round of

litigation nor raised any objection for implementing the decisions of

this Court.

16. Pursuant to the interim order dated 22.11.2021 passed by

this Court in this writ petition, it is reported that the petitioners were

permitted to inspect the answer scripts. Thereafter, the petitioners

filed additional affidavits stating that marks were not awarded in each

answer script and a separate sheet was annexed to the answer scripts

wherein marks are awarded and the same is in violation of the

decisions of the erstwhile common High Court in Dr. P. Kishore

Kumar's case (Surpa 1) and Dr. J. Kiran Kumar's case (Supra 2).

17. The decisions relied on by the learned Additional Advocate

General would not be of any help to the respondents as they do not

cover issues relating to digital evaluation which is the core subject.

As the specific issues relating to digital evaluation were adjudicated

and decisions have been rendered in Dr. P. Kishore Kumar's case

(Supra 1) and Dr. J. Kiran Kumar's case (Supra 2), in the opinion of

this Court, the same have precedential value and as evident from the

record, the respondents have violated the guidelines issued in the said

two decisions. Hence, the action of the respondents is violative of

Articles 14 and 21 of the Constitution of India.

18. It is informed to this Court that supplementary

examinations are scheduled from 29.12.2021. In the circumstances,

the respondents are directed to defer the supplementary examinations

to some other date until evaluation of answer scripts of the petitioners

herein are done following the principles laid down in the decisions of

Dr. P.Kiran Kumar's case (Surpa 1) and Dr. J. Kiran Kumar's

case (Supra 2) by using tick marks, 'x' marks, making remarks etc.,

on the digital answer scripts by using digital tools like stylus etc., and

awarding marks on each answer script. The respondents are further

directed to evaluate answer scripts of all the students who have failed

in the examinations and not approached this Court. After declaration

of results, the respondents are at liberty to reschedule the

supplementary examinations. Further, to ensure fair play the

respondents are directed to get the answer scripts evaluated through

new examiners.

19. With the above directions, the writ petition is allowed,

at the stage of admission itself. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending in

the writ petition stand closed.

______________________ B. VIJAYSEN REDDY, J December 24, 2021.

PV