Dr. Maneesh K. Unnithan v. National Board of Examinations

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021/16TH AGRAHAYANA, 1943** ## **WP(C) NO. 21443 OF 2021** ## **PETITIONER:** **DR. MANEESH K. UNNITHAN AGED 37 YEARS S/O.R.KRISHNAN UNNITHAN, KULATHINMEL HOUSE, ARINELLUR SOUTH, KOLLAM – 690538.** **BY ADVS. ELVIN PETER P.J. K.R.GANESH SIDHARTH SUDHEER GOURI BALAGOPAL** ## **RESPONDENTS:** - **1 NATIONAL BOARD OF EXAMINATIONS REPRESENTED BY ITS DIRECTOR, MEDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG, NEW DELHI - NEW DELHI - 110029.** - **2 THE EXECUTIVE DIRECTOR., NATIONAL BOARD OF EXAMINATIONS, MEDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG, NEW DELHI - 110029.** - **3 THE ASSISTANT DIRECTOR. NATIONAL BOARD OF EXAMINATIONS, MEDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG, NEW DELHI – 110029.** ## **BY ADV S.SANAL KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21443/2021 : 2 : # **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.21443 of 2021 ````````````````````````````````````````````````````````````` _Dated this the 7[th] day of December, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who has passed MBBS and has joined Super Specialty Course DNB (Nephrology), is before this Court seeking following reliefs:- “(i) Issue a writ of certiorari calling for the records leading to Ext.P1 and quash paragraph 6.6 bullet point No.4 to the extent of declaring that no reevaluation or re-checking/re-totalling of answer sheets would be allowed; (ii) To issue a writ of certiorari calling for the records leading to Ext.P7 and quash the same; (iii) Issue a writ of mandamus or any other writ, direction or order, directing the respondents to re-evaluate/recheck the answer sheet of the petitioner; (iv) Issue a writ of mandamus or any other writ, direction or order, directing the respondents to serve to the petitioner the answer script of the petitioner in the practical examination held on W.P.(C) No.21443/2021 : 3 : 07/08/2021 under the OSE Mode undertaken by him forthwith; along with the answer keys; (v) To declare that paragraph 6.6 bullet point No.4 of Ext.P1 is absolutely illegal, unfair, discriminatory, arbitrary and violative of Article 14 of the Constitution of India, needless to say the said provision is incorporated without any authority of law and is therefore void and non-est.” 2. The pattern of training, norms of conducting theory examinations and practical examinations and award of DNB Degree, are prescribed in Ext.P1 Prospectus. The petitioner completed his training and has passed theory examinations. The practical examinations were scheduled to be held in December, 2021. Due to Covid-19 pandemic, the respondents introduced a new revised examination format. The first phase was for clinical examination and the second, practical examination consisting of Observed Structured Clinical Examination (OSCE). 3. The petitioner states that he participated in the first phase examination on 07.08.2021 and performed well. The petitioner thereafter appeared in Clinical examination also. When the results were declared, the petitioner was W.P.(C) No.21443/2021 : 4 : declared as failed. The petitioner had performed extremely well in both phases of practical examination and even in a worst case scenario, would score more than pass marks. Hence, the result declared as failed, can only be a mistake. 4. Paragraph 6.6 of Ext.P1 Prospectus states that there will not be any re-evaluation, rechecking or re-totalling of answer scripts/marks. The petitioner therefore requested the respondents to provide him a copy of the answer sheet. By Ext.P7, the petitioner was informed that “There will be no re-evaluation or rechecking/re-totalling. Request for re-evaluation/re-totalling shall not be entertained.” 5. The petitioner contends that the Hon’ble Apex Court has held in the judgment in _**Central Board of Secondary Education and others v. Aditya Bandopadhyay and others** [2011 (8) SCC 497]_ that examinee in a public examination has a right to inspect his evaluated answer books or take certified copies thereof as such book is a document or record in terms of Section 2(f) and 2(i) and therefore ‘information’ under the Right to W.P.(C) No.21443/2021 : 5 : Information Act, 2005. The petitioner is therefore entitled to receive a copy of the answer sheet as well as answer key in respect of the examination, contended the petitioner. 6. The Standing Counsel for the National Board of Examination resisted the writ petition vigorously. It was submitted on behalf of the Board that the petitioner obtained 144 marks out of 300 and he was declared as Failed. The result of the DrNB Nephrology Practical exam declared by NBEMS is honest, accurate and correct which is based on the performance of the candidates in the Practical Exam as assessed by the external examiners. As per the policy of NBEMS, there is no provision for providing photocopies of the practical exam award sheets. As per Paragraph 6.6 of the Information Bulletin for DNB/DrNB Final Exam, December 2020 Session, "There will be no re-evaluation or rechecking/re-totalling of answer sheets. Requests for re-evaluation/re-totalling shall not be entertained." There is no Non-Disclosure Agreement in the DNB/DrNB Final Practical Exam. The answer sheets are generated for the W.P.(C) No.21443/2021 : 6 : virtual OSCE component of the Practical exam. It has 25 stations, each station having 6 marks i.e., a total of 150 marks comes from the OSCE component. 25 A4 size single page answer sheets are generated for each of the candidates. These answer sheets are scanned and sent to the NBEMS Office at New Delhi, where print out of these sheets are taken and assessed by the assessors. These are part of the DNB/DrNB Practical Exam assessment. As a policy, NBEMS does not provide photocopies of the OSCE answer sheets/worksheets/sheets generated during the DNB/DrNB practical exam as these are not considered as theory exams. However, since 2012, NBEMS has provided photocopies of the DNB/DrNB Theory Answer sheets on request from the unsuccessful candidates. 7. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 8. Though the petitioner sought multiple reliefs in the writ petition, when the matter was heard, the learned counsel for the petitioner submitted that the petitioner is confining his W.P.(C) No.21443/2021 : 7 : prayer to obtaining a copy of the answer script and answer key. 9. The question whether an examinee has a right to inspect or to get copies of his answer scripts was considered by the Apex Court in _**Central Board of Secondary Education**_ (supra). The Apex Court held therein as follows:- “17. It is thus now well settled that a provision barring inspection or disclosure of the answer-books or re-evaluation of the answer-books and restricting the remedy of the candidates only to re-totalling is valid and binding on the examinee. In the case of CBSE, the provisions barring re evaluation and inspection contained in Bye-law No.61, are akin to Rule 104 considered in Maharashtra State Board. As a consequence if an examination is governed only by the rules and regulations of the examining body which bar inspection, disclosure or re-evaluation, the examinee will be entitled only for re-totalling by checking whether all the answers have been evaluated and further checking whether there is no mistake in totaling of marks for each question and marks have been transferred correctly to the title (abstract) page. The position may however be different, if there is a superior statutory right entitling the examinee, as a citizen to seek access to the answer books, as information. 18. In these cases, the High Court has rightly denied the prayer for re-evaluation of answer-books sought by the candidates in view of the bar contained in the rules and regulations of the examining bodies. It is also not a relief available under the RTI Act. Therefore the question whether re-evaluation should be permitted or not, does not arise for our W.P.(C) No.21443/2021 : 8 : consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the RTI Act which enables them and entitles them to have access to the answer-books as 'information' and inspect them and take certified copies thereof. Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in Clause (e) of Section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. Therefore, the decision of this Court in Maharashtra State Board (supra) and the subsequent decisions following the same, will not affect or interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof.” Therefore, it is clear that though an examining body may exclude the right of examinees to get their answer sheets revalued or re-checked by framing rules or regulations, the examining body cannot shirk its duty to provide copies of answer sheets of examinees under the Right to Information Act, 2005. W.P.(C) No.21443/2021 : 9 : 10. The learned Standing Counsel representing the Board relied on the judgment of the Apex Court in _**Union Public Service Commission v. Angesh Kumar and others** [(2018) 4 SCC 530]_ and contended that the Apex Court has considered its earlier judgment in _**Central Board of Secondary Education**_ (supra) and held that weighing the need of transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, information sought with regard to marks in Civil Service Examination cannot be directed to be furnished mechanically. 11. The judgment of the Apex Court in _**Union Public Service Commission**_ (supra) was in the context of Civil Service Examination. A reading of the said judgment would show that the judgment was based on the peculiarities of Civil Service Examination and based on the further fact that the Apex Court had approved the method of moderation adopted by the UPSC in the Civil Service Examinations. The W.P.(C) No.21443/2021 : 10 : said judgment will not be of any assistance in the case of Super Specialty Courses in Medicine. The petitioner therefore is entitled to get copies of his answer sheets, under the Right to Information Act, 2005. 12. There will therefore be a declaration that the petitioner is legally entitled to receive copies of his answer scripts and answer key in respect of the practical examination attended by the petitioner. There will be a consequential direction to the respondents to consider application if any submitted/to be submitted by the petitioner under the Right to Information Act, 2005 for copies of his answer sheets and answer key, in accordance with law, and in the light of the judgment of the Apex Court in _**Central Board of Secondary Education**_ (supra). Writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/08.12.2021 W.P.(C) No.21443/2021 : 11 : ## **APPENDIX OF WP(C) 21443/2021** **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS ISSUED BY THE 1ST RESPONDENT FOR DNB/DRNB FINAL EXAMINATION.** **Exhibit P2 TRUE COPY OF THE TRAINING COMPLETION CERTIFICATE ISSUED BY ANANTHAPURI HOSPITAL AND RESEARCH INSTITUTE TO THE PETITIONER DATED 04.05.2020.** **Exhibit P3 TRUE COPY OF THE DNB THEORY RESULT OF TE PETITIONER.** **Exhibit P4 TRUE COPY OF THE NOTICE DATED 15.07.2021 ISSUED BY THE 1ST RESPONDENT NOTIFYING DATES FOR THE PRACTICAL EXAMINATIONS, FOR BOTH DNB/DRNB IN DECEMBER,2020.** **Exhibit P5 TRUE COPY OF THE ADMIT CARD ISSUED TO THE PETITIONER. Exhibit P6 TRUE COPY OF THE DNB PRACTICAL RESULT OF THE PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NATIONAL BOARD.** **Exhibit P7 TRUE COPY OF THE PRINTOUT OF THE QUERY SENT BY THE PETITIONER AND THE REPLY RECEIVED FROM THE NATIONAL BOARD DATED 14.09.2021.** **Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 25.08.2020 IN WP(C) NO. 15018/2020 OF THIS HON'BLE COURT.**