Drishya Krishnan v. Kerala University of Health Sciences and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939** ## **WP(C).No. 1035 of 2017 (D)** ## **---------------------------** ## **PETITIONER(S):** **----------------------** **DRISHYA KRISHNAN, AGED 26 YEARS, W/O.ATHUL C.SOMAN, "KRIPA", PNRA 132 A, CHANGAMPUZHA NAGAR P.O., KALAMASSERY, ERNAKULAM-682033.** **BY ADVS.SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA** ## **RESPONDENT(S):** **------------------------** **1. KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR-680596.** **2. THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR-680596.** **3. VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR-680596.** **4. BOARD OF ADJUDICATION FOR STUDENTS GRIEVANCE, REPRESENTED BY ITS CHAIRMAN, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O, THRISSUR-680596.** **5. THE PRINCIPAL, AMALA INSTITUTE OF MEDICAL SCIENCES, THRISSUR-680595.** **R1 TO R4 BY ADV. SRI.P.SREEKUMAR,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 1035 of 2017 (D)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------EXHIBIT P1 A COPY OF THE MARK LIST DATED 03-07-2015 SHOWING THE RESULT OF THIRD PROFESSIONAL MBBS DEGREE PART II REGULAR EXAMINATIONS (2010 ADMISSIONS).** **EXHIBIT P2 A COPY OF THE RESULTS PUBLISHED ON 19-12-2015 OF THE THIRD PROFESSIONAL MBBS PART II DEGREE SUPPLEMENTARY (2010 ADMISSIONS) EXAMINATIONS SEPTEMBER 2015.** - **EXHIBIT P3 A COPY OF THE EVALUATION SHEET OF THE SECTION(A) GIT OF GENERAL SURGERY PAPER I OF THE SUPPLEMENTARY EXAMINATION OF THE PETITIONER.** - **EXHIBIT P4 A COPY OF THE EVALUATION SHEET OF THE SECTION(B) ORTHOPEDICS GENERAL SURGERY PAPER I.** - **EXHIBIT P5 COPY OF THE EVALUATION SHEET OF GENERAL SURGERY PAPER II.** - **EXHIBIT P6 A COPY OF THE JUDGMENT IN WPC NO.9144 OF 2016 DATED 11-03-2016.** - **EXHIBIT P7 A COPY OF THE ORDER DATED 18-04-2016 ISSUED BY THE PRO VICE CHANCELLOR OF THE 1ST RESPONDENT UNIVERSITY.** - **EXHIBIT P8 A COPY OF THE JUDGMENT DATED 14-10-2016 IN WPC NO.22340 OF 2016.** - **EXHIBIT P9 A COPY OF THE JUDGMENT IN W.A.NO.2200 OF 2016 DATED 10-11-2016.** - **EXHIBIT P10 A COPY OF THE SAMPLE OF THE REPRESENTATION FILED BY THE PETITIONER WHICH WAS RECEIVED BY THE UNIVERSITY ON 17-11-2016.** - **EXHIBIT P11 A COPY OF THE ORDER DATED 13-12-2016.** - **EXHIBIT P12 A COPY OF THE ORDER DATED 24-10-2016.** - **EXHIBIT P13 A COPY OF THE ORDER DATED 10-03-2014.** **EXHIBIT P14 A COPY OF THE MARK LIST DATED 03-12-2013 OF SRI.APARNA BALAN.** **TS** ## **WP(C).No. 1035 of 2017 (D)** **--------------------------------------** ## **EXHIBIT P15 A COPY OF THE ORDER DATED 08-12-2016.** **EXHIBIT P16 A COPY OF THE INSTRUCTION TO THE CHAIRMAN OF GRIEVANCES BOARD ISSUED BY THE 1ST RESPONDENT UNIVERSITY.** **EXHIBIT P17 A COPY OF THE THEORY EXAMINATION TIME TABLE FOR THIRD PROFESSIONAL MBBS DEGREE (PART II) SUPPLEMENTARY EXAMINATIONS-SEPTEMBER 2015 (2010) ADMISSION.** **EXHIBIT P18 A COPY OF THE REPRESENTATION DATED 04-01-2017.** **EXHIBIT P19 A COPY OF THE RELEVANT PAGES OF DECISION NO.8.17 IN THE 8TH MEETING OF THE ACADEMIC COUNCIL.** **EXHIBIT P20 A COPY OF THE MINUTES OF 9TH MEETING OF ACADEMIC COUNCIL DATED 21-07-2015.** **EXHIBIT 21:- TRUE COPY OF THE JUDGMENT DATED 27.3.2017 IN R.P.NO.267/2017.** **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------------------------** ## **TRUE COPY** ## **PS TO JUDGE** **TS** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.1035 of 2017 ----------------------------------------------Dated this the 28[th] day of November, 2017** ## **JUDGMENT** Petitioner is a student undergoing MBBS Course under the Amala Institute of Medical Sciences, Thrissur, after securing admission in the year 2010. Petitioner appeared for the third professional MBBS degree Part-II regular examination conducted in April, 2015. There are 4 subjects for the third professional Part-II examination. Petitioner in her first attempt was declared passed in the subject of Paediatrics and declared failed in the other three subjects. Thereafter, she appeared for the supplementary examination conducted in September, 2015, in the papers General Medicine, General Surgery and Obstetrics & Gynaecology. Among the aforesaid three subjects, she was declared passed in Obstetrics & Gynaecology, evident from Exts.P1 and P2 mark list. 2. According to the petitioner, since the petitioner was admitted to the course in the year 2010, as per the Regulations, curriculum and syllabus of under graduate medical course (MBBS) issued by the 1st respondent University, 2 **W.P.(C) No.1035 of 2017** the criteria for pass for admissions before the academic year 2012-2013 is as follows: ## _“_ _**Criteria for Pass**_ _In each of the subjects, a candidate must obtain 50% in aggregate for a pass. This 50% in aggregate includes:-_ _A separate minimum of 50% in aggregate for theory including viva. (University theory + Viva + Internal Assessment) & a separate minimum of 50% in aggregate for Practicals/clinics (University Practicals/clinics+ Internal Assessment)”._ It is the case of the petitioner that, petitioner ought to have been declared passed in both the subjects due to the following reasons: “1. The average of the first two evaluations of Section A GIT paper General Surgery (1) is 14.5 and after adding the marks of Section B it would become 14.5+17 = 31.5 and after rounding off, it would become 32. Thus by adding the marks of General Surgery Paper I and General Surgery Paper II the petitioner will get at least 58 marks for University Theory. 2. The difference between the first two evaluation of the paper Section A GIT General Surgery I is 10%. Therefore, there is no need to send the same for a third evaluation except as per the academic council decision (Ext.P19). In such a scenario, the University has to take the average of the first two **W.P.(C) No.1035 of 2017** 3 evaluation as the final marks even going by the academic council decision (Ext.P19). 3. For the paper General Surgery Paper II, petitioner is actually entitled to get 31 marks. 4. Even if average of all three evaluations of Section A GIT General Surgery Paper I and 3 evaluations of General Surgery Paper II as done in Ext.P15, the petitioner is entitled to be declared as passed.” 3. According to the petitioner, petitioner is entitled for declaration for pass in the subjects, General Surgery and General Medicine, if she was awarded with the marks to which she is entitled for the theory part of General Surgery, adopting the criteria described above. In such a scenario, she would have been able to claim grace mark for the practical part of General Medicine. Thus, she would have obtained pass in General Medicine also. But, the marks were not calculated in accordance with the regulations available. She was admitted to the course in the year 2010 and prior to the academic year 2012-2013, which made her fail in two subjects. Thereupon, petitioner has approached this Court by filing W.P.(C) No.9144 of 2016, which resulted in Ext.P6 judgment dated 11.03.2016, 4 **W.P.(C) No.1035 of 2017** wherein, the University was directed to consider the representation filed by the petitioner. 4. In accordance with the directives issued by this Court, University has passed Ext.P7 order dated 18.04.2016, adverse to the petitioner. Aggrieved by Ext.P7, petitioner filed W.P.(C) No.22340 of 2016. However, the said writ petition was dismissed as per Ext.P8 judgment dated 14.10.2016. Being aggrieved, petitioner preferred Writ Appeal No.2200 of 2016. The said writ appeal was disposed of, directing the 4th respondent herein to consider the request of the petitioner in accordance with the Rules, and also taking note of fresh guidelines beneficial to the students like the petitioner, evident from Ext.P9. Thereafter, petitioner filed representation before the Chairman of the 4th respondent, evident from Ext.P10. Petitioner has made various claims and also demonstrated with calculations as to how the marks are to be awarded for various papers in accordance with the regulations available. 5. However, fact remains, University has passed Ext.P11 order, declining to consider the request of the petitioner. It is also submitted that, University has only considered the petitioner's case in connection with the order **W.P.(C) No.1035 of 2017** 5 dated 24.10.2016 issued by the Controller of Examinations, evident from Ext.P12. According to the petitioner, as per Ext.P12, for PG Courses and for all other courses, the system of valuation available is double valuation system, and third valuation is possible only if there is difference of more than 15% of the total marks in the paper between the two valuations. Other contentions are put forth by the petitioner to canvass the proposition that petitioner is entitled to get marks in accordance with the regulations then in vogue. Petitioner has filed I.A.No.11221 of 2017, producing Ext.P21, order in R.P.No.267 of 2017 in Ext.P9 judgment in W.A.No.2200 of 2016 dated 27.03.2017. 6. A statement is filed by the 1st respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, if the marks obtained by a candidate in the double valuation has a difference of more than 15% of the total marks, the said paper has to be sent for third valuation. Similarly, if a candidate obtained the average marks of the double valuation, which is within 45 and 49% of the total marks, then also the paper has to be sent for another valuation. In case of three valuations, 6 **W.P.(C) No.1035 of 2017** average of the near two marks obtained by the candidate is to be taken as the final marks in the examination. 7. It is also submitted that, the petitioner took part in the examination without any challenge against the existing regulations. That apart, it is stated that, the results during the previous years as well as that of the supplementary examination of 2015 were declared in terms of the norms adopted by the University. The petitioner cannot accept the said norms for a particular paper and challenge the same for another paper, since the norms will have to be adopted uniformly. The petitioner herein, on the other hand, accepted the marks awarded to her in all the papers in which she was declared passed, but at the same breath, challenges the marks awarded to her in two papers in which she failed. 8. However, a paramount contention is also advanced by the 1st respondent that, Ext.P8 judgment was rendered by this Court on identical grounds, which was confirmed in Ext.P9 judgment in writ appeal. Though opportunity was given to the petitioner to approach the University with a petition, the findings contained in Ext.P8 judgment cannot be defaced. Even though petitioner had preferred a review, the Division **W.P.(C) No.1035 of 2017** 7 Bench found that there is no error apparent on the face of the record, warranting review, and also made it clear that, all the contentions are left open to be considered in this writ petition. Therefore, according to the learned Standing Counsel, a finality is attained as per Ext.P8 judgment, consequent to the confirmation of the same in Ext.P9 judgment in writ appeal. Even though a direction was issued to consider any representation received from the petitioner, the same can never be termed as any interference with the findings rendered by the learned Single Judge in Ext.P8. It is also submitted that, in the review order, the observation that all the contentions are left open to be considered in this writ petition, according to the Standing Counsel, that by itself is not a ground for the petitioner to reopen Ext.P8 judgment rendered by this Court. 9. I have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the University. Perused the documents on record and the pleadings put forth by the respective parties. 8 **W.P.(C) No.1035 of 2017** 10. In my considered opinion, the primary question to be considered is, whether the writ petition is maintainable under law in view of Ext.P8 judgment rendered by the learned Single Judge under the very same facts and circumstances of the case. It is true, a direction was issued in Ext.P9 judgment in writ appeal filed against Ext.P8 judgment of the learned Single Judge, enabling the petitioner to file representation. Anyhow, the modification of the judgment of the learned Single Judge to the said extent of granting liberty for making any representation before the statutory authority, can never be termed as interference with the judgment of the learned Single Judge, so as to have merger of the judgment of the learned Single Judge with that of the judgment of the learned Division Bench. 11. True, petitioner has a case that, in the review petition filed to review Ext.P9 judgment, the review was declined, since there is no error apparent on the face of the record. However, therein also, it is clear that there is no interference with Ext.P9 judgment in writ appeal, nor any manner of interference with the judgment of the learned Single Judge. All that the learned Division Bench left open was 9 **W.P.(C) No.1035 of 2017** granting liberty to the petitioner to raise all contentions in this writ petition. 12. I have considered the rival submissions made across the Bar in respect of the issue as to finality of Ext.P8 judgment, and its other consequences referred to above. In my considered opinion, in order to enable the petitioner to reagitate the issue, which is concluded as per Ext.P8 judgment, there would have been interference to the findings rendered by the learned Single Judge, either in Ext.P9 judgment of the Division Bench or in Ext.P21 order in the review filed by the petitioner in Ext.P9 judgment. In that view of the matter, it can be seen that, there is no interference with Ext.P8 judgment of the learned Single Judge in the intra court appeal or in the review. What is stated in Ext.P21 is that, the petitioner is entitled to raise all contentions in this writ petition. However, that by itself is not a circumstance, either legal or factual, to re-open the findings contained in Ext.P8 judgment, since at no point of time, interference was made by the Division Bench to the findings rendered by the learned Single Judge. Therefore, there is no merger nor vacation of the findings in the judgment. At the most, it can be said that a 10 **W.P.(C) No.1035 of 2017** modification was made in Ext.P9 judgment, enabling the petitioner to submit a representation. 13. Be that as it may, the findings of the learned Single Judge are remaining in tact, disabling this Court to re-consider the issue. In that regard, paragraph 17 of the judgment of the apex court in _**'Shanmugavel Nadar v. State of Tamil Nadu**_ ' [(2002) 8 SCC 361 : 2002 KHC 1059] is relevant, which read thus: _“17. We are clearly of the opinion that in spite of the dismissal of the appeals on 10.09.1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10.09.1986 nor did the order of this Court make any declaration of law within the meaning of Art.141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai's case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent benches of coordinate or lesser strength but open to reconsideration by any bench of the same High Court with a coram of judges more than two.”_ 14. Therefore, the principles of _res judicata_ clearly applies to the facts and circumstances of this case, since the attempt of the petitioner is to re-agitate the issue which was concluded, once. In that view of the matter, petitioner is not 11 ## **W.P.(C) No.1035 of 2017** entitled to get any relief as is sought for in the writ petition. The writ petition fails, accordingly, it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/30.11.2017