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Dr. Shyamala Xavier vs The Registrar, Tamil Nadu Dr. … on 14 July, 1993

Madras High Court
Dr. Shyamala Xavier vs The Registrar, Tamil Nadu Dr. … on 14 July, 1993
Equivalent citations: (1993) 2 MLJ 550
Author: Bakthavatsalam


ORDER

Bakthavatsalam, J.

1. The petitioner is a Gold Medallist in the B.D.S. Course. The petitioner had completed the 1st Year M.D.S. Course with the third rank. For the second year M.D.S. Course, the Part II examination consists of two parts, one is theory consisting of 3 papers, and the other is practical. All the theory papers and practical examinations are to be evaluated by all the four examiners individually. During the previous years, there was one internal examiner and three external examiners, but for the years 1991-92 it appears, that the said procedure had been changed as two internal examiners as against one and instead of 3 external examiners there were only two. According to the petitioner, the Syndicate did not pass any resolution to effect the abovesaid change. In this petition, the petitioner who alleges mala fides against the 4th respondent, further states that this year the 4th respondent, who, according to the petitioner, is inimically disposed towards the petitioner, came as an additional internal Examiner to evaluate the petitioner’s practical examination as well as the theory examination papers. It is further alleged by the petitioner that so far as the petitioners branch of M.D.S. Course is concerned, this year two new external examiners were irregularly appointed at the instance of the 4th respondent, who would agree with the grading of her performance, according to the 4th respondent. It is further alleged that though the 3rd respondent gave ‘B’ rank to the petitioner, I he new two external examiners gave the petitioner ‘C’ rank and in the final valuation, the grade given by the 3rd respondent was altered as ‘F’ and consequently the petitioner has been declared as failed in the M.D.S. examination. Questioning the above decision of the respondents as arbitrary and illegal and contrary to the rules, the petitioner has filed this writ petition seeking for the issue of a writ of mandamus directing the respondents 1 and 2 to cancel the result of the petitioner and direct re-assessment through different examiners in respect of M.D.S. Final Year (M.D.S. Orthodontia) in the year 1991-92.

3. In the counter affidavit filed respondent 1 and 2, it is stated that the examiners, both for internal and external, were appointed for valuing the petitioner’s final year M.D.S. Course papers, as per the regulations of the Dental Council of India that due to non-availability of the external examiners, the University was forced to conduct the examination with 3 internal examiners and one external examiner instead of 2 external examiners and 2 internal examiners; that it is not correct to state that two new external examiners were brought in at the influence of the 4th respondent, since the external examiners are appointed by the Vice-Chancellor under the powers given by the Governing Council in its resolution No. IV (17) passed in its meeting (IV Meeting) held on 21.12.1988 and as per the regulations regarding M.D.S. Post Graduate Degree Dental Courses, the petitioner’s answer papers for final year M.D.S. Course cannot be revalued and the prayer of the petitioner is against the regulations of the University and against Section 44 of the Tamil Nadu Dr. M.G.R. Medical University Act, 1987 (Tamil Nadu Act 37 of 1987).

4. In the counter affidavit filed by the 3rd respondent, it is stated that the petitioner is consistently very good at studies as could be seen from her school records and the appointment of internal and external examiners for the M.D.S. Dental Course is purely a matter for the respondents 1 and 2 and according to the 3rd respondent he gave ‘B’ rank Grade and other examiners gave only ‘C’ grade, resulting in the petitioner’s failure in the M.D.S. Course final year examination.

5. In the counter affidavit filed by the 4th respondent against whom mala fides are attributed by the petitioner, while denying the allegation of mala fides he further states that her was not aware of the Grade awarded by the 3rd respondent to the petitioner in the M.D.S. (Dental) Course; that he has no power or voice in the choice of selecting examiners and their appointments; that he has not influenced either the Governing Council or the other examiners who valued the answer papers of the petitioner; that the 4th respondent is not aware of the alteration in the Grade awarded to the petitioner; there was no violation of any rule or regulation in the appointment of examiners and that there are no merits in the allegation of the petitioner and the writ petition is liable to be dismissed.

6. I have heard Mr. N.R. Chandran, learned Senior Counsel for the petitioner, Mr. M. Vellaisamy, for respondents 1 and 2; Mr. M. Venkatachalapathy, for 3rd respondent and Mr. T.V. Ramanathan, for 4th respondent.

7. The point for determination in this writ petition is whether the procedure adopted in appointing the examiners, both for internal and external, for evaluating the final year M.D.S. Denial Course, is in accordance with the provisions of the Tamil Nadu Dr. M.G.R. Medical University Act, 1987 (Tamil Nadu Act 37 of 1987). Section 34(f) of the Act provides for issuing Ordinances in connection with the appointment of examiners and Sections 22 and 23 of the Act also speaks of examiners. Section 21 of the Act deals with the Governing Council. The power of the Vice-Chancellor are mentioned under Section 12 (2)’of the Act.

8. A reading of the above provisions and the Ordinance of the Act will clearly show that the list of examiners has to be given by the Board of Studies and the same has to be placed before the Governing Council and the said Council alone has to approve the list of examiners. Only if the Governing Council approves the list of examiners, the Controller of Examinations can select the examiners out of such a list. In this case, it is admitted that it has not been done. What has been produced before this Court is a resolution passed in the IV Meeting of the Governing Council held on 21.12.1983 and it reads as follows:

Agenda No. IV(17):

To consider and approve the proposal to select examiners from the panel of examiners of Madras University” Resolution:

Resolved that the Dr. M.G.R. Medical University shall select examiners from the panel of examiners from all the constituent Universities. The Governing Council further resolved that inequities in the appointment of examiners be scrupulously avoided and necessary instructions for this purpose be issued by the Vice Chancellor.

This was long before the present set of Ordinances and Statutes made under the Tamil Nadu Dr. M.G.R. Medical University Act, came into force. Relying on this, the learned Counsel for the University contends that the Governing Council has authorised the Vice Chancellor to pick and choose the examiners for the M.D.S. Dental Course examination and accordingly the appointment of the 4th respondent as an examiner is valid in law. I am unable to agree with this contention. A careful reading of the said Resolution, extracted above, in my view, does not empower the Vice-Chancellor to appoint the examiners at his own free will and choice. What all it is referred to in the resolution is that inequities in the appointment of examiners be scrupulously avoided and necessary instructions for this purpose be issued by the Vice-Chancellor. That is all, I do not think that in my view, the resolution of the Governing Council, as referred to above, empowers the Vice Chancellor to appoint examiners. Therefore the point made by the learned Counsel for the petitioner that the appointment of the 4th respondent as an examiner has not been approved by the Governing Council, has to be upheld. Unless and until the Governing Council approves the list of examiners for evaluating the M.D.S. Dental Course examinations, both for theory and practical, it cannot be said that the papers written by the petitioner has been ‘valued’ in the eye of law. Such a valuation, according to me, has no value in the eye of law. Therefore, when there is no valuation at all, no question of re-valuation will arise. It is true that in matters of education, the decision on issues such as the present one. has to be left to the expertise. But when the respondents 1 and 2 had not understood the provisions of the Act or the intention of the Legislature, surely, this Court has to interdict and say that they have not acted properly in accordance with the provisions of the Act, Statutes and Ordinance. As such I am not able to countenance the argument of the learned Counsel for the University that there is no regulation for revaluation and therefore no direction can be given for revaluation. Since I take the view that there is no ‘valuation’ of the petitioner’s answer paper for M.D.S. Final year (M.D.S. Orthodontia) examination held in the year 1991-92, in the eye of law, that is not valued by the authorised examiners, I direct the University authorities, the respondents 1 and 2 to make re-assessment of the petitioner’s papers for the examination M.D.S. final year (Orthodontia) held in the year 1991-92, through different examiners other than the fourth respondent herein. Though mala fides are alleged against the 4th respondent. I do not think that it need be gone into in this writ petition at this stage, and I do not think that it is necessary to go into the same. I do not think that the respondents 1 and 2 will have any grievance in re-assessing/revaluing the answer papers of the petitioner through the different approved examiners, other than the 4th respondent. It shall be done within two months, from today. The writ petition is ordered in the above terms. No costs.

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