National Board of Examinations in Medical Sciences (NBEMS) v. Maneesh K. Unnithan

W. A. No. 693 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 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944** **WA NO. 693 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 21443/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/S:** **1 NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES (NBEMS) REPRESENTED BY ITS DIRECTOR, EDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG, NEW DELHI - 110 029. 2 THE EXECUTIVE DIRECTOR NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES, MEDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG,NEW DELHI - 110 029. 3 THE ASSISTANT DIRECTOR NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES, MEDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG, NEW DELHI - 110 029. BY ADV T.SANJAY** ## **RESPONDENT/S:** **MANEESH K.UNNITHAN AGED 37 YEARS S/O.R.KRISHNAN UNNITHAN, KULATHINMEL (H), AINELLUR SOUTH, KOLLAM - 690 538. ADV. ELVIN PETER P.J.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 693 of 2022 -2- ## **J U D G M E N T** ## Shaji P. Chaly, J. Respondents in W. P. (C) No. 21443 of 2021 have filed the appeal challenging the judgment of the learned Single Judge dated 07.12.2021 whereby the learned Single Judge allowed the writ petition and declared that the writ petitioner is legally entitled to receive copies of his answer scripts and answer key in respect to the practical examination attended by the writ petitioner / respondent; and a consequential direction was issued to the appellants to consider application if any submitted / to be submitted by the writ 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 Hon'ble Apex Court in **Central Board of Secondary Education and Others v. Aditya Bandopadhyay and others [(2011) 8 SCC 497]** . 2. Brief material facts for the disposal of the appeal are as follows:- 3. The writ petitioner has acquired MBBS Degree and thereafter he passed MD in General Medicine. Petitioner applied before the 1[st] W. A. No. 693 of 2022 -3- appellant, i.e. the National Board of Examinations, New Delhi and got registered as a candidate for super specialty, DNB (Nephrology). Ext. P1 prospectus was issued by the National Board of Examinations laying down the scheme of the course conducted by it in broad specialties and super specialties for the academic year 2020-2021. As per the norms laid down in Ext. P1, the award of DNB certificate in super specialty consists of three years training followed by a theory examination and practical examination. 4 . The question that arose for consideration was whether the writ petitioner is entitled to get copies of the answer script and answer key of the practical examination in view of para 6.6 of the prospectus. 5. It is the contention of the petitioner that even though the petitioner had performed well in the examination, when the results were declared, the petitioner failed. Therefore according to the writ petitioner, it can only be a mistake in the evaluation process. 6. The case of the writ petitioner is that as per paragraph 6.6 of Ext. P1 prospectus, there will not be any revaluation, rechecking or retotaling of answer scripts / marks, and therefore, requested the respondents to provide him with a copy of the answer sheet and the W. A. No. 693 of 2022 -4- petitioner was informed by Ext. P7 communication that the request for revaluation or re-totaling shall not be entertained. 7. The case projected by the petitioner in the writ petition is that as per the judgment of the Hon'ble Apex court in **Central Board of Secondary Education** (supra), the 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) of the Right to Information Act, 2005 and therefore entitled to receive a copy of the answer sheet as well as answer key in respect of the examination. However the appellants resisted the contentions raised in the writ petition contending that the result declared by the 1[st] appellant is accurate and correct and based on the performance of the candidate in the practical exam as assessed by the external examiners. 8. It is also contended that as per the policy of the National Board of Examinations, there is no provision for providing photocopies of the practical exam award sheets. It is also contended that the answer sheets are generated for the virtual Observed Structured Clinical Examination (OSCE) component of the practical W. A. No. 693 of 2022 -5- exam; that it has 25 stations, each station having six marks, i.e. a total of 150 marks comes from the OSCE components; that these answer sheets are scanned and sent to National Board of Examinations office at New Delhi where print out of the sheets are taken and assessed by the assessors and as a matter of policy, the National Board of Examinations does not provide copies of the answer sheets / worksheets generated during the practical exam as these are not considered as theory exams. 9. The learned Single Judge after considering the rival submissions and relying upon the judgment of the Hon'ble Apex Court in **Central Board of Secondary Education** (supra) has held that though an examining body may exclude the right of examinees to get their answer sheets revalued or rechecked 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. 10. In order to arrive at the said conclusion, the learned Single Judge has relied upon paragraphs 17 and 18 of the judgment of the Hon'ble Apex Court in **Central Board of Secondary Education** W. A. No. 693 of 2022 -6- ## (supra) and they read thus:- “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 reevaluation, 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 reevaluation should be permitted or not, does not arise for our consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answerbooks or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining W. A. No. 693 of 2022 -7- 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 answerbooks 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.” 11. Even though the the appellants relied upon the judgment of the Hon'ble Apex Court in **Union Public Service Commission v. Angesh Kumar and Others [(2018) 4 SCC 530]** , learned Single Judge has found that it was in the context of civil service examination that the findings were rendered by the Hon'ble Apex Court which has no bearing to the facts and circumstances of the case at hand. W. A. No. 693 of 2022 -8- 12. We have evaluated the rival submissions made across the Bar and we are of the considered opinion that going by Section 8(1) of the Right to Information Act, 2005 it is clear that the answer scripts and the answer key are not documents which are confidential in nature so as to get exemption from disclosure of information. In **Central Board of Secondary Education** (supra), the Hon'ble Apex Court had occasion to consider almost an identical issue and has arrived at the finding that the examining body will be bound to provide access to the 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 by virtue of Section 22 of Act 2005; which stipulated that notwithstanding anything contained in the Official Secrets Act, 1923 and any other law for the time being in force or in any instrument having effect by virtue of any other law other than this Act, the provisions of the Act 2005 shall have effect. Therefore in our considered opinion, the learned Single Judge was right in issuing the directions to the appellants. We are of the undoubted opinion that the appellants have not made out any case of jurisdictional error or other legal infirmities so as to interfere with the W. A. No. 693 of 2022 -9- judgment of the learned Single Judge. Needless to say, appeal fails. Accordingly, it is dismissed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE