Ashik Tomy v State of Kerala, Kerala University of Health Sciences, Board of Adjudication for Students Grievances, Al Azhar Dental College and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 15267 OF 2023`** ## **`PETITIONER/S:`** ``` ASHIK TOMY, AGED 28 YEARS, S/O TOMY JOHN, RESIDING AT MUKKUCHIRA (H), VADAKODE P.O, VAZHAKULAM, MUVATTUPUZHA-686670 STUDENT OF BDS 2016 BATCH, AL AZHAR DENTAL COLLEGE, PERUMPILLICHIRA P.O, THODUPUZHA - 685605, HAVING UNIVERSITY REGISTRATION NO. 160020021 BY ADVS. JOHNSON JOSE PANJIKKARAN T.R.JERRY SEBASTIAN 1STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR, PIN - 680596 3THE BOARD OF ADJUDICATION FOR STUDENTS GRIEVANCES THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., TRICHUR, PIN – 680596 REPRESENTED BY ITS CHAIRMAN 4AL AZHAR DENTAL COLLEGE PERUMPILLICHIRA P.O, THODUPUZHA, PIN – 685605 REPRESENTED BY ITS PRINCIPAL. BY SRI. P.SREEKUMAR, STANDING COUNSEL SRI.V.K.SUNIL, SR.GOVERNMENT PLEADER ``` ## **`RESPONDENT/S:`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.15267 of 2023 2 ## **J U D G M E N T** The petitioner is a BDS student of 2016 Batch with Reg No.160020021. He is a student of the 4[th] respondent college. The petitioner failed in subject of General Pathology and Microbiology in the Second Year BDS Degree Supplementary Examinations held in January 2023. The petitioner applied for a copy of his score card as he was declared failed in the examination. On receipt of the score card, the petitioner noted that the second evaluator has not granted marks to the petitioner in a fair manner. It is submitted that there is a pattern in the marks given by the second evaluator and this was an exceptional case, which ought to have resulted in the matter being referred to the third evaluator. 2. The learned counsel for the petitioner relies on the judgment of this Court in **M.G.University v. Millu Dandapani** [2000(1) KLT 351] and states there is no bar in the matter being referred to an expert to be appointed by this Court. The learned counsel also places reliance on the WPC No.15267 of 2023 3 Division Bench judgment of this Court in W.A.No.677 of 2022 to contend that in almost similar circumstances, this Court had directed reconsideration of the matter by the Board of Adjudication for Students Grievances Committee and therefore, the case of the petitioner may also be directed to be considered by the Board of Adjudication for Students Grievances Committee constituted by the University. 3. The learned Standing Counsel appearing for the respondent University refers to the statement filed in this Court. He states that the petitioner had failed in the supplementary examination held in January 2023 in the subject of General Pathology and Microbiology by one mark. He submits that the candidate had scored 34 marks out of 70 and 50% is mandatory for passing the Theory examination. It is submitted that the candidate has also failed in the subject General and Dental Pharmacology and Therapeutics where, he scored only 23 marks out of 70. It is submitted that as per the regulations governing the issue, the question of reference to a third evaluator will arise only if there is 15% difference in WPC No.15267 of 2023 4 the marks awarded by the first evaluator and the second evaluator. 4. It is submitted that in the case of the petitioner, such a difference in the marks awarded is not there (difference of 15% between the marks awarded by the first evaluator and the second evaluator). It is also submitted that there is no pattern in the marks allotted by the second evaluator, as suggested by the learned counsel for the petitioner. He also refers to Ext.R2(a) to show that it is not as if the petitioner was an extremely good student. It is submitted that the petitioner has failed in several papers on earlier occasions as well. It is submitted that he had availed atleast five chances for the same paper as is evident from Ext.R2(a). It is submitted that there are no exceptional circumstances and the Board of Adjudication for Students Grievances Committee had considered the complaint made by the petitioner and had issued Ext.R2(b) communication to the petitioner finding that there is no extra ordinary circumstance warranting any further action to be taken in the case of the petitioner. The learned counsel also submits that there are WPC No.15267 of 2023 5 several students who may have lost obtaining a pass mark by one mark and therefore, that factor cannot be a consideration in granting any relief to the petitioner. 5. It is submitted that the Division Bench judgment of this Court in W.A.No.677 of 2022 was rendered in different factual circumstances and that this is clear from a reading of paragraph Nos.13 and 14 of the judgment of the Division Bench of this Court, which is extracted herein below; “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 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 card and WPC No.15267 of 2023 6 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).” It is submitted that the Supreme Court in a recent judgment in **Dr.NTR University of Health Sciences Vs. Yerra Trinadh and Ors.** [AIR 2022 SC 5523], had taken the view that where the regulations do not provide a revaluation except in certain circumstances, it is not open to the Court in exercise of jurisdiction under Article 226 of the Constitution of India to issue directions in the matter of revaluation. 6. Having heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent University, I am of the view that the petitioner has not made out any case warranting grant of any relief to the petitioner. The regulations of the University are clear and they do not admit of any ambiguity. The petitioner’s claim for evaluation by a third evaluator will arise only if there is a difference of 15% in the marks allotted by the first evaluator WPC No.15267 of 2023 7 and the second evaluator. Admittedly, there is no such difference in the marks awarded to the petitioner by the first evaluator and the second evaluator. Therefore, the petitioner cannot, in the light of the provisions contained in the regulations, claim that his case be referred for evaluation of a third evaluator. The fact that the petitioner has failed to secure pass only by one mark cannot be a ground to hold that the petitioner is entitled to another chance and have his answer sheets evaluated by a third evaluator or by a subject expert. 7. The judgment of the Supreme Court in **Dr.NTR University’** s case(supra) makes it clear that a claim for evaluation will have to be considered only in terms of the regulations of the University and not in any other manner. The judgment of the Division Bench of this Court in W.A.No.677 of 2022 cannot be applied in the facts of the present case, as it is clear from a reading of the judgment that the judgment was rendered in atleast slightly different factual circumstances. The judgment of this Court in **M.G.University** ’s case(supra) was also rendered in different WPC No.15267 of 2023 8 factual circumstances. Moreover, that judgment cannot be any longer good law in the light of the judgment of the Supreme Court in **Dr.NTR University’** s case(supra). This writ petition fails and it is, accordingly, dismissed. Sd/- **GOPINATH P., JUDGE** rkj WPC No.15267 of 2023 9 ## **`APPENDIX OF WP(C) 15267/2023`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE SECOND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATIONS RESULT BEARING REG NO. 160020021 DATED 17.03.2023 ``` ``` TRUE COPY OF THE RELEVANT PAGES OF BDS COURSE REGULATIONS OF THE 2ND RESPONDENT ``` ``` Exhibit P3TRUE COPY OF THE SECOND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATIONS RESULTS BEARING REG NO. 160020021 DATED 21.10.2022 ``` ``` Exhibit P4TRUE COPY OF THE SCORE SHEET OF SECOND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATIONS BEARING REG NO. 160020021 DATED 11.4.2023 ``` ``` Exhibit P5TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO BOARD OF ADJUDICATION DATED 26.04.2023 ``` ``` Exhibit P6TRUE COPY OF THE LETTER DATED 16.5.2023 ISSUED BY 3RD RESPONDENT ``` ``` RESPONDENT ANNEXURES ``` ``` Annexure R2(a)True copy of the attempted details of the candidate ``` ``` Annexure R2(b)True copy of the letter dated 16/05/2023 intimating the petitioner ```