Dr. Raymond George v. Union of India and National Board of Examinations

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **WP(C).No.29792 OF 2019(Y)** ## **PETITIONER:** **DR.RAYMOND GEORGE AGED 40 YEARS** **MECHERY HOUSE, INFRA HILLOCK APARTMENTS, PHASE III, 2B, CHANGAMPUZHA NAGAR P.O., KALAMASSERY, ERNAKULAM DISTRICT-682 033.** **BY ADVS.** **SRI.ABRAHAM VAKKANAL (SR.) SMT.VINEETHA SUSAN THOMAS SMT.AKHILA B.** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, 156-A WING, NIRMAN BHAVAN, NEW DELHI-110 011.** **2 NATIONAL BOARD OF EXAMINATIONS (UNDER THE MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA), REPRESENTED BY ITS DIRECTOR, MEDICAL ENCLAVE, ANSARI NAGAR, RING ROAD, NEW DELHI-110 029.** **R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2 BY ADV. SRI.S.SANAL KUMAR R2 BY ADV. SMT.BHAVANA VELAYUDHAN R2 BY ADV. SMT.T.J.SEEMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-022020, THE COURT ON 26-02-2020 DELIVERED THE FOLLOWING:** **WP(C).No.29792 OF 2019(Y) 2** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.29792 of 2019** **= = = = = = = = = = = = = = = = Dated this the 26[th] day of February, 2020** ## **JUDGMENT** ## This writ petition is filed seeking the following prayers: _“i. Issue a writ of certiorari or other appropriate writ or direction, quashing or declaring as invalid, clauses 2.21 and 7.2 in Exhibit P1 to the extend it ousted the jurisdiction of this Hon'ble Court under Art 226 of the Constitution and also to the extend that it denied reevaluation or rechecking/retotalling of answer sheets in theory paper of FE Exam, 2019;_ _ii. Issue a writ of mandamus or other appropriate writ or direction, commanding the respondents to reevaluate the answer sheet of the petitioner (Roll No.1914781008) of the Theory paper of FE Exam, 2019 and announce results immediately within a time frame;_ _iii. To declare that on the facts of this case, the petitioner is entitled to re-evaluate his answer sheets of the Theory paper of FE Exam, 2019.”_ 2. Heard the learned senior counsel appearing for the petitioner and Sri.P.Vijayakumar, learned Assistant Solicitor General appearing for the 1[st] respondent as well as Sri.S.Sanal Kumar, learned counsel appearing for the 2[nd] respondent. **WP(C).No.29792 OF 2019(Y) 3** 3. The learned senior counsel for the petitioner submits that the petitioner has completed MD (Physician) and DNB (OBGY) and he is presently working as Junior Consultant at Rajagiri Hospital, Chunangamvely, Aluva. He had appeared for the Fellowship Exit Exam of 2019 in High Risk Pregnancy and Perinatology conducted by the 2[nd] respondent in August/September 2019. However, he failed in the theory paper. It is stated that due to the total ban provided in the Information Bulletin for Fellowship Exit Exam, 2019, as regards reevaluation or rechecking of the answer sheets of the exam, the petitioner is before this Court. It is stated that Fellowship Exams are conducted every year by the 2[nd] respondent. The Information Bulletin in respect of the year 2019 is produced as Ext.P1. The petitioner submitted Ext.P2 application along with all required documents. It is stated that the petitioner had appeared for the Exit Exams in the year 2017 and 2018 also and had failed to qualify. In the year 2018 the failure in the theory paper was for one mark. It is stated that the Fellowship Exit Exam of 2019 is his 3[rd] attempt and it is crucial to the future career of the petitioner. He has obtained only 45 marks in one theory paper and did not obtain the minimum required marks for a pass. The petitioner submitted representations with a request to **WP(C).No.29792 OF 2019(Y) 4** reevaluate his answer scripts but no favourable replies were received. 4. The learned senior counsel relies on the judgments of the Apex Court in _**Maharashtra Chess Association v. Union of India**_ [Civil Appeal No.5654/2019 dated 29.7.2019] where the expansive jurisdiction of this Court under Article 226 is considered. The learned senior counsel appearing for the petitioner would contend that in view of the discretionary jurisdiction available to this Court under Article 226, there must be a direction to the respondents to reevaluate the answer scripts of the petitioner. It is stated that pursuant to an interim order dated 11.12.2019, the 2[nd] respondent had been directed to issue photocopies of the answer sheets of the petitioner, after collecting charges, if any. It is stated by the learned counsel for the petitioner that on receipt of the photocopies of the answer sheets, the petitioner is confident that if any expert in the field of High Risk Pregnancy and Perinatology evaluates the petitioner's answer sheets, he is sure to score a minimum of 60% marks in theory. He, therefore has given details of two competent Doctors who could be directed by this Court to reevaluate the answer scripts of the petitioner. **WP(C).No.29792 OF 2019(Y) 5** 5. A statement has been filed by the 2[nd] respondent, wherein it is stated that there is no provision for reevaluation of answer scripts as provided in Ext.P1. Moreover, clause 7.2 of Ext.P1 specifically provides that there will be no reevaluation or re-checking of answer sheets or re-totalling of marks. It is stated that the Fellowship Exit Examinations are conducted taking all necessary precautions to see that no irregularities occur and that the evaluation is entrusted to room qualified examiners and there is absolutely no for any malpractice in the conduct of the evaluation. It is stated that clause 7.2 specifically provides that there will be no reevaluation or rechecking or re-totalling of the answer sheets and the results shall made available on the website. It is further stated that there have been no complaints of any malpractice of any nature in the evaluation conducted by the 2[nd] respondent with regard to the Fellowship Exit Examination and that since, the petitioner has participated in the examination knowing fully well that there will be no reevaluation permitted, the plea made by the petitioner is completely unjustified. It is stated that the Fellowship Exit Examination is a highly advanced professional examination and that this Court would not be justified in directing a reevaluation to be **WP(C).No.29792 OF 2019(Y) 6** conducted in a case were there is absolutely no provision for the same. 6. Learned senior counsel also places reliance on a decision of the Apex Court in _**High Court of Tripura v. Tirtha Sarathi Mukherjee and others** [AIR 2019 Supreme Court 3070]_ in support of his contention that in rare or exceptional cases, an application for reevaluation can be considered even in case were there is no provision for such reevaluation provided in the Rules or Regulations governing the examination. 7. The learned counsel appearing for the 2[nd] respondent, on the other hand relied on decisions of the Apex Court in _**Maharashtra State Board of Secondary Education and Another v. Paritosh Bhupeshkumar Sheth and Others [1984 (4) SCC 27]**_ . The said case was a case where the Maharashtra Secondary and Higher Secondary Education for regulations 1977, specifically excluded any application for reevaluation of answer scripts. Considering the pleadings advanced at length, the Apex Court held that where the valuations conducted after taking every possible precaution and safeguards to ensure that the answer sheets are properly valued and kept in safe custody to eliminate any danger of their being tampered with and **WP(C).No.29792 OF 2019(Y) 7** where the valuation is conducted applying uniform standards, the Courts would not be justified in striking down provisions prohibiting reevaluation. It was further held that were candidates having taken the examination being fully aware of the provisions contained in the regulations cannot turn around and challenge provisions in the regulations which provides that no reevaluation will be allowed. 8. Relying on a later decision of the Apex Court in _**Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission [2004 (6) SCC 714],**_ it is contended that even in a case were there was no specific bar as to an application for reevaluation, the Apex Court has held, relying on the decision in _**Maharashtra State Board of Secondary Education and Another v. Paritosh Bhupeshkumar Sheth and Others [1984 (4) SCC 27]**_ referred to above that a prayer for reevaluation unless there is a specific provision permitting the same would not be justified. A decision in _**Secretary, All India PreMedical/Pre-Dental Examination, C.B.S.E and Others v. Khushboo Shrivastava and Others [2011 KHC 4715]**_ is also relied on to contend that direction for reevaluation would be unjustified in the absence of any specific provision enabling such a course of action. **WP(C).No.29792 OF 2019(Y) 8** 9. It is not in dispute before me that the petitioner had attended the Fellowship Exit Examination on the basis of Ext.P1 Information Bulletin. Ext.P1 contains a specific condition that there will be no reevaluation or re-checking or re-totalling of answer sheets and the result will be made available online. On submission of an application, the photocopy of the answer sheets of the petitioner had also been made available to the petitioner. It is thereafter that I.A No.3 of 2020 has been submitted by the petitioner seeking reevaluation by an expert to be appointed by this Court. 10. The decision of the Apex Court in _**Maharashtra Chess Association v. Union of India & Others**_ [2019 (12) SCALE 167] dated 29.07.2019] is with regard to the jurisdiction of the High Courts under Article 226 of the Constitution of India. The dispute arose under the Indian Contract Act. On a writ petition being filed by the aggrieved party before the High Court of Bombay, the said High Court held that Clause 21 ousted the jurisdiction of all other Courts except the Courts at Chennai. The question considered by the Apex Court was therefore whether an ouster clause can oust the jurisdiction of the High Court of Bombay under Article 226 of the Constitution of India. It was held that the mere existence of alternate remedies or alternate Forums **WP(C).No.29792 OF 2019(Y) 9** where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its jurisdiction. It was therefore found that the non consideration of the issue by the High Court was not proper. 11. Having considered the contentions advanced, I am of the opinion that in view of the fact that the petitioner, who has appeared for the examination on the basis of Ext.P1 Information Bulletin which specifically holds that no reevaluation will be provided, cannot be heard to contend that the respondents ought to conduct a reevaluation even in the absence of any provision for the same. In a case of this nature, I am of the opinion that this Court would also not be justified in directing a reevaluation to be conducted, in view of the fact that there is a specific bar as contended in Ext.P1. The ambit of the jurisdiction of this Court cannot be stretched to limits which are not contemplated and this Court would have to leave questions with regard to evaluation of answer scripts in highly technical subjects to the experts who have been entrusted with such tasks. In the absence of any specific allegation as to _mala fides_ or any details as to the discrepancies contained in the evaluation by the experts, I am of the opinion that this Court would not be justified in directing any such **WP(C).No.29792 OF 2019(Y) 10** reevaluation which is specifically barred by Ext.P1. The prayers sought for in this writ petition, therefore cannot be granted. The writ petition fails and the same is accordingly dismissed. **Sd/Anu Sivaraman, Judge** ## **SVP** **WP(C).No.29792 OF 2019(Y) 11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE INFORMATION BULLETIN AND APPLICATION FORM FOR FE EXAM, 2019.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION FORM DATED 21.7.2019.** **EXHIBIT P3 TRUE COPY OF THE MEMBERSHIP CARD OF IMA ISSUED FROM COCHIN BRANCH OFFICE DATED 1.2.2019.** **EXHIBIT P4 TRUE COPY OF THE SCORE CARD OF FE EXAM, 2017 DATED 27.10.2019. EXHIBIT P4 A TRUE COPY OF THE SCORE CARD OF FE EXAM, 2018 DATED 27.10.2019.** **EXHIBIT P5 TRUE COPY OF THE ADMIT CARD OF THEORY PAPER FE EXAM, 2019.** - **EXHIBIT P5 A TRUE COPY OF THE ADMIT CARD PRACTICAL, FE EXAM, 2019.** **EXHIBIT P6 TRUE COPY OF THE SCORE CARD OF THE PETITIONER, FE EXAM, 2019 DATED 27.10.2019.** - **EXHIBIT P7 TRUE COPY OF THE EMAIL SENT BY THE PETITIONER DATED 15.10.2019.** - **EXHIBIT P7 A TRUE COPY OF THE REPLY RECEIVED FROM R 2 DATED 15.10.2019.** - **EXHIBIT P7 B TRUE COPY OF THE EMAIL SENT TO SPIO (EXAMS) AND DEPUTY DIRECTOR POST EXAMINATION MATTERS DATED 16.10.2019.** - **EXHIBIT P8 TRUE COPY OF THE LETTER SENT DATED 16.10.2019.** **EXHIBIT P8 A TRUE COPY OF THE POSTAL RECEIPT DATED 16.10.2019.** **EXHIBIT P9 TRUE COPY OF THE EMAIL DATED 24.10.2019 EXHIBIT P10 TRUE COPY OF RTI APPLICATION SUBMITTED VIA POST. EXHIBIT P10 A TRUE COPY OF POSTAL RECEIPT.** **WP(C).No.29792 OF 2019(Y) 12** **EXHIBIT P11 TRUE COPY OF RTI ONLINE APPLICATION. EXHIBIT P12 FORMAT DOWNLOADED FROM THE SITE. EXHIBIT P12 A TRUE COPY OF THE RECEIPT FOR PAYMENT EVIDENCED BY MESSAGE RECEIVED FROM YES BANK.** **EXHIBIT P13 TRUE COPY OF REPLY RECEIVED FROM 2ND RESPONDENT.** **EXHIBIT P14 TRUE COPY OF THE COVERING LETTER FORWARDING INTERIM ORDER TO R2 EXHIBIT P15 TRUE COPY OF REPLY GIVEN TO P11 BY R2 EXHIBIT P16 TRUE COPY OF THE COVERING LETTER EXHIBIT P16(a) TRUE COPY OF THE FILLED UP FORM EXHIBIT P16(b) TRUE COPY OF THE DEMAND DRAFT EXHIBIT P16(c) TRUE COPY OF THE POSTAL RECEIPT EXHIBIT P17 TRUE COPY OF THE EMAIL EXHIBIT P18 TRUE COPY OF THE COVERING LETTER WITH ATTACHMENTS TO IT EXHIBIT P19 TRUE COPY OF THE REPLY EMAIL SEND BY PETITIONER EXHIBIT P20 TRUE COPY OF THE ANSWER SHEET OF THE PETITIONER IN FE EXAM, 2019 RECEIVED AS PER DIRECTION OF THIS HON'BLE COURT. EXHIBIT P20(a) TRUE COPY OF THE COVERING LETTER. EXHIBIT P20(b) TRUE COPY OF THE QUESTION PAPER OF FE EXAM, 2019 DOWNLOADED FROM THE WEBSITE OF R2.**