Sahiti vs Dr. N.T.R. University of Health Sciences

High Court of Judicature of Andhra Pradesh at

Hyderabad in Writ Appeal No. 402 of 2007 and other

cognate appeals by which the common judgment dated

May 1, 2007, rendered by the learned single Judge of the

High Court upholding action of the Vice-Chancellor of

Dr. N.T.R. University of Health Sciences, Vijaywada (for

short "the University") of re-verification/re-valuation/re-

examination of answer scripts of 436 students, who had

failed in first year MBBS examination during academic

year 2006-07, is set aside and the decision of the

Executive Council to cancel the result of re-verification of

answer scripts and asking 294 students, who were

declared passed on re-verification of answer scripts to re-

appear in examination of first year MBBS, is upheld.

3. The appellants, who are students, joined first year

MBBS course for the academic year 2006-07 in different 3

private medical colleges which are affiliated to the

University, Vijaywada. They appeared in the first year

M.B.B.S. examination held from September 5, 2006 to

October 10, 2006. The results of the examination were

declared on December 2, 2006. The record shows that in

all 4076 students had appeared in examination out of

whom 992 students were declared failed in different

papers. In the results published by the university, it was

specifically mentioned that such of those students who

wanted to attend personal identification for re-totalling of

their theory answer scripts should submit their

applications on or before December 13, 2006. This

personal identification was meant to enable the students

to apply for re-totalling of their answer scripts. Out of

the 992 students who had failed, 436 students applied

for re-totalling of their respective answer scripts. When

the process of re-totalling was going on, some

representations were addressed to His Excellency, the

Governor, who is Chancellor of the university, and the

Hon'ble Minister for Medical and Health as well the Vice- 4

Chancellor of the university on behalf of the students in

the name of MBBS First Year Students' Parents'

Association with complaints of improper and under

valuation of answer scripts. In the complaints, it was

stated that answer scripts of three papers i.e. Anatomy,

Physiology and Bio-Chemistry were not properly valued

and the valuation was harsh whereas some questions in

Physiology were out of syllabus and because of all these

factors, the percentage of students who had cleared the

examination was low. It is the case of the students that,

the Vice-Chancellor, after listening to their grievances,

assured that he would verify the answer books and if

necessary, get them re-examined. Having regard to the

nature of complaints received, the Vice-Chancellor

constituted a committee of three expert professors on

January 3, 2007 for re-verification/re-valuation/re-

examination of answer scripts. The Committee

undertook re-verification of the answer scripts and

recorded marks on printed slips of papers which were

stapled at the top of answer scripts. On the basis of re- 5

verification made by the Committee appointed by the

Vice-Chancellor, the University declared revised results

on February 2, 2007 and 294 students out of 436

students, who had applied for re-totalling, were declared

"Pass". The action taken by the Vice-Chancellor of re-

totalling and re-verification of the answer sheets of First

Year M.B.B.S. examination held in September/October,

2006 was placed before Executive Council for its

ratification. The matter was considered by Executive

Council and the Council had approved the action taken

by the Vice-Chancellor. The revised results were sent to

the Principals of medical colleges. Subsequent to the

declaration of the results, after re-valuation His

Excellency, the Governor of the State, as well as the

Minister for Medical, Health and Family Welfare and

Vice-Chancellor of the University received

communications and complaints stating that

irregularities were committed in the process of re-

verification. Because of the controversy generated in the

media, His Excellency the Governor forwarded the 6

complaints received by him to the Executive Council of

the University for appropriate action. A meeting of the

Executive Council of the University was convened to

consider the action of re-totalling and re-verification of

answer scripts relating to First Year M.B.B.S.

examination held in September/October, 2006. The

Executive Council resolved to ask the Government of

Andhra Pradesh to constitute a high level committee to

go into the circumstances under which re-verification of

answer sheets was undertaken and find out whether any

irregularities had taken place. The Executive Council

further resolved to withhold declaration of the revised

results of First Year M.B.B.S. course till the enquiry

report was submitted and give intimation of the same to

the Principals of medical colleges concerned.

Accordingly, by letter dated February 2, 2007 the

Principals of medical colleges were informed not to give

effect to the results obtained on re-verification of answer

scripts of First Year M.B.B.S. examination. In pursuance

to the resolution of Executive Council, the University 7

twice requested the Andhra Pradesh Government to

constitute a high level committee but the Government

did not oblige the University. Meanwhile, petitions were

filed in High Court by the beneficiaries of the re-

valuation of answer scripts seeking a direction to permit

them to attend the second year M.B.B.S. course. The

request made by the Registrar to the Government to

constitute a high level committee to examine the whole

issue was not acceded to but the Government referred

the matter to the Law Department and Medical

Department of the State. The Medical Department did

not agree with the action of the Vice-Chancellor.

Ultimately the Chief Secretary sought the opinion of the

learned Advocate General of the State in the matter who,

by his letter dated 29-03-07, opined that the decision of

Vice-Chancellor permitting re-valuation of answer scripts

was not in accordance with the provisions of

law/procedure. According to the learned Advocate

General, merely because certain

representations/complaints were received from the 8

students/parents of the students, the Vice-Chancellor

ought not to have ordered re-correction of answer scripts,

more particularly, when there is no provision to do so in

the Act. The learned Advocate General expressed the

opinion that the University, being an autonomous body,

there was no necessity for referring the matter to

Government for the purpose of enquiring into the whole

issue and, therefore, the very reference/request made by

the University asking the Government to probe into the

matter was not in accordance with the proviso to Section

12(3) of the N.T.R. University of Health Sciences Act 1986

(`the Act' for short).

In view of the opinion of the learned Advocate

General, the meeting of the Executive Council was

convened on April 2, 2007. The Vice-Chancellor

informed other members of Executive Council that re-

valuation of answer scripts was ordered because of the

pressure from the students who had failed and their

parents. Having regard to the facts of the case, the 9

Executive Council agreed with the opinion of learned

Advocate General and unanimously cancelled the whole

process of re-valuation. The Executive Council was of

the opinion that opportunity should be given to the failed

students to re-appear in the examination and, therefore,

it directed the students who had failed in

September/October 2006 examination to reappear in the

examination which was scheduled to take place on April

25, 2007.

4. The students and their parents were of the opinion

that the Executive Council was not justified in cancelling

the whole process of re-valuation, which was undertaken

pursuant to the order of the Vice-Chancellor nor the

Executive Council was justified in asking the students to

re-appear in first year MBBS examination, which was

scheduled to be held on April 25, 2007. Therefore, they

invoked extraordinary jurisdiction of the High Court

under Article 226 of the Constitution by filing Writ

Petition No. 8658 of 2007 and other batch of petitions. 10

5. The learned single Judge of the High Court was of

the opinion that the Vice-Chancellor had power under

Section 12(2) of the Act, to appoint committee for re-

verification of the answer scripts of the students and in

the absence of any express power conferred on the

Executive Council or the Academic Council, the

Executive Council was not justified in cancelling the

whole process undertaken for re-verification at the

behest of the Vice-Chancellor. In view of above

mentioned findings, the learned single Judge allowed the

writ petitions filed by the students vide judgment dated

May 1, 2007.

6. Feeling aggrieved, the Registrar of the University

filed Writ Appeal No. 402 of 2007 and other cognate

appeals. The Division Bench of the High Court took the

view that the Vice-Chancellor of the University had no 11

jurisdiction under Section 12(2) of the Act to order re-

verification of the answer scripts of the students and,

therefore, the Executive Council was justified in

cancelling the whole process of re-valuation as well as

directing the students to re-appear in first year MBBS

examination, which was scheduled to take place on April

25, 2007. In view of these conclusions, the Division

Bench of the High Court allowed the writ appeals filed by

the Registrar of the University giving rise to the instant

appeals.

7. This Court has heard the learned counsel for the

parties at length and in great detail. This Court has also

taken into consideration the documents forming part of

the appeals.

From the record of the case it is evident that in all,

4076 students had appeared in first year MBBS

examination, which was held between September 5, 2006

and October 10, 2006. The results of the examination

were declared on December 2, 2006 and 992 students 12

were declared failed in different papers. Out of 992

students, who were declared failed, 436 students had

applied for re-totalling of the marks assigned by the

examiners in three different papers. When this process

of re-totalling was going on, some representations were

submitted to the University and Vice-Chancellor on

behalf of the students in the name of MBBS First Year

Students' Parent's Association with complaints of

improper and under valuation of answer scripts. The

record shows that Vice-Chancellor directed re-verification

of the answer scripts. On January 3, 2007 the Vice-

Chancellor constituted a committee of three professors

for re-verification of answer scripts. The Committee

undertook re-verification and recorded marks on the

printed slips of papers stapled at the top of the answer

scripts. On the basis of the re-verification undertaken by

the Committee constituted by the Vice-Chancellor, the

University declared revised results on February 2, 2007

by which 294 students out of 436 students, who had

applied for re-totalling, were declared "Pass". 13

Subsequently, highest authorities of the University

received communications and complaints that

irregularities were committed in the process of

re-verification. In the backdrop of the complaints, the

matter was placed before the Executive Council for

considering the question whether the action taken for the

re-verification of the answer scripts by the Vice-

Chancellor of the University was valid. The Vice-

Chancellor agreed before the Executive Council that he

had ordered re-verification under pressure and coercion

from the students and their parents. Having regard to

the facts of the case, the Executive Council did not

approve the action of the Vice-Chancellor directing re-

verification of the answer scripts and cancelled the whole

process of re-verification. The Executive Council was

further of the opinion that opportunity should be given to

the failed students to re-appear in examination and,

therefore, it directed the students, who had failed, to re-

appear in the first year MBBS examination, which was

scheduled to be held on April 25, 2007.

14

8. The Division Bench of the High Court has set aside

the judgment of the learned single Judge on the ground

that the Vice-Chancellor of the University had no power

to order re-verification of the answer scripts. Section 12

(2) of the Act reads as under: -

"The Vice-Chancellor shall be the Principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University."

Sub-section (3) of Section 12 provides that the Vice-

Chancellor may, if he is of opinion that immediate action

is necessary on any matter, exercise any power conferred

on any authority of the University by or under the Act

and shall report to such authority the action taken by

him on such matter. The proviso to sub-Section (3)

stipulates that if the authority concerned is of opinion 15

that such action ought not to have been taken, it may

refer the matter to the Chancellor whose decision thereon

shall be final.

9. A conjoint and meaningful reading of the provisions

of Section 12(2) of the Act with Section 12(3) of the

Act makes it evident that the Vice-Chancellor has

power to take appropriate action relating to the

affairs of the University, which includes conduct of

examination also. The Vice-Chancellor is the

conscious keeper of the University. He is the

principal executive and academic officer of the

University. He is entrusted with the responsibility

of overall administration of academic as well as

non-academic affairs. For these purposes, the Act

confers both express and implied powers on the

Vice-Chancellor. Section 30 of the Act confers

power on the Executive Council to make statutes.

In exercise of that power, the Executive Council has

framed the Statutes of University. Clause 1 of the 16

Statutes deals with the status of the Vice-

Chancellor and his powers and duties. Sub-Clause

(3) of Clause 1 of the Statues provides that it shall

be the duty of the Vice-Chancellor to see that the

provisions of this Act, the Statues, Ordinances and

Regulations are duly observed and he may exercise

all powers necessary for this purpose. Thus the

express powers include among others, the duty to

ensure that the provisions of the Act, Statutes,

Ordinances and Regulations are observed by all

concerned. The wordings of Sub-Clause (3) of

Clause 1 of the Statute shows that a residuary

power which is required to be exercised, in order to

see that the provisions of the Act, the Statutes,

Ordinances and Regulations are duly observed, is

vested in the Vice-Chancellor. The Vice-Chancellor

has right to regulate the work and conduct of

officers and other employees of the University. He

has also emergency powers to deal with any

untoward situation. The power conferred under 17

Section 12(2) and 12(3) is indeed significant. If the

Vice-Chancellor believes that a situation calls for

immediate action, he can take such action as he

thinks necessary though in the normal course he is

not competent to take that action. However, he

must report to the concerned authority or body,

who would, in the ordinary course, have dealt with

the matter. That is not all. His pivotal position as

the principal executive officer also carries with him

certain implied powers. It is the magisterial power

which is plainly to be inferred. This power is

essential for him to maintain domestic discipline in

the academic and non-academic affairs. In a wide

variety of situations in the relationship of tutor and

pupil he has to act firmly and promptly to put down

indiscipline and malpractice. As per the Statutes of

university, the Vice-Chancellor is whole-time Officer

of the university and by virtue of his office, is a

Member and Chairman of the Executive Council

and of the Academic Council. He has power to 18

convene meetings of the Executive Council and the

Academic Council.

The plea that there is absence of specific provision

enabling the Vice-Chancellor to order re-evaluation of the

answer scripts and, therefore, the Judgment impugned

should not be interfered with, cannot be accepted. Re-

evaluation of answer scripts in the absence of specific

provision is perfectly legal and permissible. In such

cases, what the Court should consider is whether the

decision of the educational authority is arbitrary,

unreasonable, mala fide and whether the decision

contravenes any statutory or binding rule or ordinance

and in doing so, the Court should show due regard to the

opinion expressed by the authority. In Board of

Secondary Education Vs. Pravas Ranjan Panda and

Another (2004) 13 SCC 383, the respondent No.1, i.e.,

Pravas Ranjan Panda appeared in the High School

Certificate Examination, 2003 as a regular candidate.

He passed the said examination securing about 90% 19

marks. He filed a Writ Petition under Article 226 of the

Constitution alleging that he had answered all the

questions correctly without committing any mistake and,

therefore, deserved full marks in each paper, but due to

carelessness and negligence of the Board in appointing

inexperienced and unqualified examiners in certain

papers, low marks had been awarded to him due to

which he lost his chance of being within the first ten

examinees in the HSC Examination, 2003. A prayer was

made for re-evaluation of his answer book. The High

Court disposed of the petition with a direction to the

Board to scrutinize and recheck the answer scripts of

examinees securing 90% and above marks in aggregate

in HSC Examination 2003 and if there was any change

or variation in the marks the petitioner should be

informed accordingly. The candidates secured less than

90% of marks in aggregate who had applied for

rechecking and readdition of marks in certain answer

papers had to be considered in accordance with the

resolution of Board for rechecking of marks. 20

A review petition was subsequently filed by the

Board wherein it was submitted that the Board shall face

immense difficulties in scrutinizing and examining all

answer sheets after publication of the results. It was

also stated that 217 examinees had secured 90% and

above marks in the examination and 27 examiners of the

status of Chief Examiner would be required for re-

examination of the answer books and some more

examiners would be necessary to examine the subject of

third language. However, the review petition was

dismissed. In appeals the Supreme Court noticed that

the High Court, though observed that the writ petitioner

who had taken the examination was hardly a competent

person to assess his own merit and on that basis claim

re-evaluation of papers, but issued the aforesaid

direction in order to eliminate the possibility of injustice

on account of marginal variation in the marks. It was

admitted before the Supreme Court that the regulation of

the Board of Secondary education, Orissa did not make

any provision of re-evaluation of answer books of the 21

students. The Supreme Court was of the opinion that

the question whether in absence of any provision to that

effect an examinee is entitled to ask for re-evaluation of

his answer books was examined by the Supreme Court

in Pramod Kumar Srivastava Vs. Chairman, Bihar

Public Service Commission (2004) 6 SCC 714. It was

noticed by the Supreme Court that in the said decision it

was held that in absence of rules providing for re-

evaluation of answer books no direction should be issued

because a direction for re-evaluation of the answer books

would throw many problems and in the larger public

interest such a direction must be avoided. Therefore, the

Supreme Court expressed the opinion that the order of

the High Court directing re-evaluation of the answer

books of all the examinees securing 90% or above marks

was clearly unsustainable in law and set aside the same.

The above decision deals with the right of the student or

candidate to claim re-examination/re-evaluation of his

answer sheet and the power of the High Court to order

revaluation of answer sheets. It does not deal with the 22

power of the Board to order re-evaluation of answer

books if factual scenario so demands. Award of marks

by an examiner has to be fair and considering the fact

that re-evaluation is not permissible under the Statute at

the instance of candidate, the examiner has to be

careful, cautious and has the duty to ensure that the

answers are properly evaluated. Therefore, where the

authorities find that award of marks by an examiner is

not fair or that the examiner was not careful in

evaluating the answer scripts re-evaluation may be found

necessary. There may be several instances wherein re-

evaluation of the answer scripts may be required to be

ordered and this Court need not make an exhaustive

catalogue of the same. However, if the authorities are of

the opinion that re-evaluation of the answer scripts is

necessary then the Court would be slow to substitute its

own views for that of those who are expert in academic

matters. Under the circumstances the plea advanced

on behalf of the respondents that Vice-Chancellor of the

N.T.R. University of Health, Sciences had no authority to 23

order re-evaluation of the answer scripts, cannot be

upheld. Therefore, this Court does not agree with the

finding recorded by the Division Bench of the High Court

that the Vice-Chancellor of the University had no power

or jurisdiction to order the re-verification of answer

scripts. However, the facts indicate that the Vice-

Chancellor had exercised power to order re-verification of

answer scripts under pressure and coercion from the

students and their parents and not independently on

merits. As noticed earlier, 436 students had merely

demanded re-totalling of marks. If the Vice-Chancellor

was of the opinion that revaluation of answer scripts was

necessary, he should have directed revaluation of answer

scripts of all 992 students who had failed and

revaluation of answer scripts could not have been

confined only to 436 students who had never applied for

re-valuation of their answer script, but had applied only

for re-totalling of their marks recorded on the answer

scripts. From the record, it is evident that the University

authorities including the Vice-Chancellor, did not at all 24

go into the merits of the allegations made in the

complaints/representations submitted by the parent's

association for re-verification to find out whether there

was any grain of truth in them. The record produced by

the University does not give any indication of

methodology adopted by the Committee for re-valuation.

Moreover, the Members of the Committee appointed by

the Vice-Chancellor for re-valuation of answer scripts

had undertaken re-verification of 1082 answer scripts

and completed re-verification in two days which itself

indicates that the said re-valuation was not properly

done and no credence could be given to the same. It is

worth noticing that the decision of the Executive Council

to cancel the result of the students on the basis of re-

verification and giving an opportunity to the failed

students to re-appear in the first year MBBS examination

was approved by the Vice-Chancellor himself. Therefore,

this Court is of the opinion that the Division Bench of the

High Court was justified in upholding the decision of the 25

Executive Council to cancel the result obtained on re-

verification of answer scripts.

10. Mr. Gopal Subramanium, learned Additional

Solicitor General appearing for the respondents, has

stated at the Bar that the University is inclined to

hold supplementary examination of the students,

who have yet to clear first year MBBS examination.

Therefore, NTR University of Health Sciences is

hereby directed to hold supplementary examination

of all students who have yet not cleared the

examination of First Year M.B.B.S. held in

September/October 2006. Pursuant to interim

orders, 294 students were permitted to prosecute

studies in Second Year M.B.B.S. If any

student/students fails/fail in supplementary

examination of First Year M.B.B.S. examination, the

declaration of the results of such

candidate/candidates who appear for Second Year

M.B.B.S be withheld or their further course of study 26

be decided based on the Rules and Regulations of

University applicable to such students. It is

clarified that the abovementioned direction would

apply only to those students who had appeared and

failed in the first year M.B.B.S. examination held

between September 5, 2006 and October 10, 2006.

Subject to the direction given above, this Court

finds that no ground is made out by the appellants

to interfere with the ultimate conclusion reached by

the Division Bench and, therefore, the appeals are

disposed of accordingly. There shall be no order as

to costs.

...................................CJI [K.G. Balakrishnan]

.....................................J. [P. Sathasivam]

.....................................J. [J.M. Panchal] New Delhi;

27

October 22, 2008.