Achuth Mohan v. Kerala University of Health Sciences & Ors.

W.A. No.677 of 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** **WA NO. 677 OF 2022** **AGAINST THEJUDGMENT IN WP(C) 1780/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **ACHUTH MOHAN, AGED 27 YEARS S/O.D.RAJ MOHAN, 'CHITHRAPOORNIMA', MANTHUKA P.O., KULANADA, PATHANAMTHITTA, PIN-689 503, (UNIVERSITY REGISTRATION NO.120021013).** **BY ADVS. THOMAS M.JACOB T.R.JERRY SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR, PIN-680 596.** - **2 THE BOARD OF ADJUDICATION FOR STUDENTS GRIEVANCES, THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., TRICHUR, PIN-680 596, REPRESENTED BY ITS CHAIRMAN.** - **3 THE GOVERNING COUNCIL, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., TRICHUR, PIN-680 596, REPRESENTED BY ITS CHAIRMAN.** - **BY ADV. SHRI.P.SREEKUMAR, STANDING COUNSEL, KERALA UNIVERSITY OF HEALTH SCIENCES** ## **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No.677 of 2022 2 ## **JUDGMENT** ## **Dated this the 21[st] day of June, 2022** ## **S.MANIKUMAR,CJ** Being aggrieved by the judgment in W.P.(C) No.1780 of 2022 dated 10.3.2022, appellant has filed the instant writ appeal. ## 2. Short facts leading to the filing of the writ appeal are as follows: 3. According to the appellant, he had appeared for the Final BDS Degree Part II Supplementary Examinations in May, 2021 and failed in theory paper - 'Paediatric & Preventive Dentistry'. The minimum pass mark for the theory was 50 whereas the appellant was given only 43 marks in theory even though he had written the exam very well and in all the other exams the appellant has performed well. 4. It is also submitted that as per Ext. P3 Regulations of the Kerala University of Health Sciences, the Valuation Strategy of the University is for double valuation of each paper and the average marks obtained is taken as the final mark of the student and if there is variation of more than 15% in the two valuations, then the paper is subjected to a third valuation, provided that the student has secured more than 35% in one valuation in that paper. It can also be seen that in 'Exceptional Cases', a fresh valuation can be conducted with the recommendation W.A. No.677 of 2022 3 of the Board of Adjudication and approval of the Governing Council. What is exceptional circumstance is not defined in the Regulation. According to the appellant, this has to be understood and read in favour of the students when anomalies are pointed out in the valuation. 5. It is submitted by the appellant that he has applied for re-totalling, copy of answer sheet & score sheets and from the documents so obtained, several anomalies were noted. The anomalies include the mark being given for question that the appellant has not answered in the first valuation. Thereafter, appellant approached the 2[nd] respondent - Board of Adjudication, pointing out the anomalies in the valuation. However Ext.P6 order dated 20.11.2021 was passed dismissing the same without even considering the contentions or anomalies pointed out by the appellant. 6. Appellant has further submitted that after seeing the answer paper of the appellant, his teachers and the HOD have unanimously opined that he is entitled for more marks, but any of them working in colleges under the University is not willing to give the same in writing. In the circumstances, other subject experts, who are not under the University, has given Ext.P7 and P8 valuations as per which the appellant was given 47.5 and 48.5 marks respectively. 7. According to the appellant, if the appellant is able to get 2 more marks in the paper 'Paediatric & Preventive Dentistry', the appellant can avail the benefit of W.A. No.677 of 2022 4 grace marks and can pass BDS Course itself and appellant is willing for valuation of the paper by Subject Experts appointed by this Honourable Court, at the expense of the appellant. 8. It is also submitted that this Court in **M.G.University v. Millu Dandapani,** reported in [2000 KHC 37] held that the power of courts to get the answer papers evaluated by experts is not restrained and that all procedures not specifically prohibited is available to the Court exercising jurisdiction under Article 226 of the Constitution of India. Therefore, appellant has sought for a direction for fresh valuation or third valuation of the paper, as provided under the BDS Regulations. It is in the above said background that appellant approached the writ court by filing W.P.(C) No.1780 of 2022 seeking the following reliefs: a) Issue a writ of certiorari or such other writ or order and quash Ext.P6 order. b) Issue a writ of mandamus or any other appropriate writs, directions or order directing the respondents to conduct third evaluation or fresh evaluation as provided in the BDS Regulation for the petitioners paper in ‘Paediatric & Preventive Dentistry’ in Final BDS Degree Part II Supplementary Examination 2021. 9. After considering the pleadings, rival submissions and clause 1.15(9) of Regulation for Courses affiliated to the Kerala University of Health Sciences, which deals with the regulations for the conduct of Theory, Practical and Viva voce Examination and also taking note of the decisions in **Board of Secondary** W.A. No.677 of 2022 5 **Education v. Pravan Ranjan Panda** [(2004(13) SCC 383]; **Sanchit Banzal v. Joint Admission Board** [(2012) 1 SCC 157]; and **All India Council of Technical Education v. Surinder Kunar Dhawan** [(2009) 11 SCC 726], writ court declined to grant the reliefs sought for. Being aggrieved, the instant writ appeal is filed. 10. Inviting attention of this Court to clause 1.15(9) of the Regulations and anomalies pointed out by the appellant in his grievance petition dated 7.10.2021 submitted to the Kerala University of Health Sciences and also Exhibit P6 order dated 20.11.2021of the Kerala University of Health Sciences, rejecting the request of the appellant to consider for 3[rd] evaluation, Mr.Thomas M. Jacob - learned counsel for appellant, submitted that a specific request was made to consider the anomalies pointed out; and the Board of Adjudication of the Students Grievances, in exceptional cases, can recommend for fresh valuation after cancelling the original valuations; Exhibit P6 dated 20.11.2021 impugned in the writ petition is silent on the above said aspect and therefore, prayed for reversal of the judgment in W.P.(C) No.1780 of 2022 dated 10.3.2022. 11. Going through clause 1.15(9) of the Regulations, the average 43 marks secured by the appellant in 'Paediatric & Preventive Dentistry' in the Final BDS Degree Part II Supplementary Examinations in May, 2021 i.e., 40 marks awarded by the first evaluer & 46 marks awarded by the 2[nd] evaluer, as stated supra and the prima facie finding that Exhibit P6 does not spell out any reasons as to W.A. No.677 of 2022 6 whether the anomalies pointed out by the appellant have been addressed, on 15[th] June, 2022 we passed the following order: ## “ ORDER Mr. P. Sreekumar, learned Standing Counsel for Kerala University of Health Sciences is directed to obtain the minutes of Board of Adjudication for Students Grievances held on 22.10.2021 and Decision No.66.45 of the Meeting of Governing Council held on 16.11.2021, documents 2 and 3 referred to in the proceedings of the Dean of Kerala University of Health Sciences in U.O No.121/2021/DSA/KUHS dated 20.11.2021. 2. Learned Standing Counsel is also directed to ascertain as to the schedule of next supplementary examination of final BDS Degree students of 2012 admission and also to ascertain as to whether the appellant has participated in any examination after May, 2021 for the subject 'Paediatric & Preventive Dentistry'. Post on 21.6.2022.” 12. By way of Memo dated 20[th] June, 2022, the Kerala University of Health Sciences has produced the minutes of the Board of Adjudication for Students Grievances Meeting conducted through Video Conference dated 22.20.2021 and Governing Council decision dated 16.11.2021. 13. By inviting attention of this Court to the request of the appellant in item No.11 and that of others as item Nos.15 and 16 respectively, Mr.Thomas M. Jacob - learned counsel for appellant, submitted that when similar requests were W.A. No.677 of 2022 7 made by the candidates pointing out the anomalies in the papers they have appeared, the Board of Adjudication for Students Grievances Committee has considered the request of other candidates viz., Pooja.C and Dhanyasree K.M. and prima facie observed that there could be some amount of possible lapse in the evaluation of the answer sheets, brought them under exceptional cases and accordingly, resolved to recommend for cancellation of previous valuations and to conduct a fresh valuation of their papers by the examiners from the approved panel of KUHS excluding those who have already valued the paper and to authorise the Controller of Examination to publish the modified result accordingly. He further submitted that it was also resolved that after this valuation, the Controller of Examinations has to forward a copy of the score care and result to the Chairman, Board of Adjudication for Students Grievances, for information and documentation. 14. But in the case of the appellant, the said exercise was not done despite there is a power conferred on the Board of Adjudication for Students Grievances Committee under clause 11.5(9). 15. To address the above, we have considered the resolutions passed by the Board of Adjudication for Students Grievances Committee in the meeting conducted on 22.10.2021, re-produced as hereunder: “ **Item No.11: Achuth Mohan, PMS College of Dental Science & Research, Thiruvananthapuram with Reg.No.120021013 appeared** W.A. No.677 of 2022 8 **for Final BDS Degree Part II Supplementary Examination (2012 Admission), May 2021.** He failed in the subject Paediatric & Preventive Dentistry. He secured 43 marks out of 100 in the paper Paediatric & Preventive Dentistry ( Paediatric & Preventive Dentistry- QP Code-407002: First Evaluation- 40, Second Evaluation-46) He has grievance in the following questions: Question No.1,2,4,11, in the paper Paediatric & Preventive Dentistry **Recommendatons:** The candidate was present for hearing through video conference on 22.10. 2021.He secured 40 and 46 marks in the first and second evaluations respectively in the paper Paediatric & Preventive Dentistry with QP Code 407002. Since the difference between 2 valuations is not more than 15% of maximum marks in the Paper with QP Code 111002, there is no provision for third valuation. Since the University is conducting two valuations and taking the average, there is no provision for revaluation normally, unless under exceptional circumstances. Since the average is taken as final mark. individual variation of marks between different examiners in each question is not considered usually, unless under exceptional circumstances. Since this case does not come under exceptional circumstances, there is no provision for any other action.” 16. Perusal of the above agendas make it clear that the above said three candidates have expressed certain grievances in some questions in the paper in which they have appeared. W.A. No.677 of 2022 9 17. Achuth Mohan – the appellant, has raised certain grievances in respect of question Nos.1, 2, 4 & 11 in the paper, 'Paediatric & Preventive Dentistry' in the Final BDS Degree Part II Supplementary Examinations in May, 2021; Ms.Pooja.C has raised certain grievances in respect of question Nos.9 & 10 in 'Paediatric & Preventive Dentistry' in the Final BDS Degree Part II Supplementary Examinations in May, 2021; so also Ms. Dhanyasree K.M has raised grievances in respect of question Nos. 1 to 5 and 16 in in the paper, 'Paediatric & Preventive Dentistry' in the Final BDS Degree Part II Supplementary Examinations in May, 2021. 18. As pointed out in the foregoing paragraphs, in respect of the two cases viz., Pooja.C and Dhanyasree K.M., it was after verifying the answer sheets and the score card, the Board of Adjudication for Students Grievances Committee has prima facie found that there could be some lapse in the evaluation of answer sheets, observing that the benefits of doubt should be given to the students, brought them under 'Exceptional Cases'. It is clear that such an exercise has not been done in the case of Achuth Mohan – the appellant. 19.We are of the view that the Board of Adjudication for Students Grievances Committee ought to have been considered as to whether others have similarly placed. 20. Hence, the case of the appellant ought to have been considered in par with others and that the action of the respondents fall short of discrimination. W.A. No.677 of 2022 10 21. Thus, giving due consideration to the material on record and grounds of challenge, we are of the view that the impugned judgment in W.P.(C) No.1780 of 2022 dated 10.3.2022 requires to be set aside, we also set aside the decision of the Board of Adjudication for Students Grievances Committee. 22. The Board of Adjudication for Students Grievances Committee – the Kerala University of Health Sciences, represented by the Registrar, Thrissur, is directed to apply the clause 11.5(9) of Ext. P3 Regulation for Courses affiliated to the Kerala University of Health Sciences, in a proper perspective to the fact of this case on par with the other candidates, as pointed out above and accordingly, pass a speaking order within 10 days from the the date of receipt of a copy of the judgment. With the above directions, instant writ appeal is allowed. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY** **JUDGE** smv