In the High Court of Judicature at Madras
Dated:19/07/2002
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
Writ Petition No.21617 of 2002
and
W.P.M.P.Nos.32149 and 32150 of 2002
PA. Niranzena (Minor)
rep. By her father & Guardian
D. Panneerselvam. .. Petitioner
vs.
1.State of Tamil Nadu
rep. By the Joint Director of
Government Examinations,
College Road, Chennai 6.
2.The Secretary
Selection Committee (MBBS)
Kilpauk, Chennai 600 010. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of writ of certiorarified mandamus as stated therein.
For petitioner : Mr. M. Venkatachalapathy,
Senior Counsel for Mr. M. Sriram
For respondents: Mr. S.P. Prabhakaran,A.G.P.(E)
:ORDER
By consent of both parties, the main writ petition itself is
taken up for final disposal.
2. Aggrieved by the order of the Joint Director, Government
Examinations, Chennai 6 – first respondent herein informing the petitioner
that there is no change in the marks even after revaluation in the Biology
subject, the petitioner has filed the above writ petition through her father
and guardian to quash the same and for consequential direction to the first
respondent to issue revised enhanced mark list to her.
3. According to the petitioner, she appeared for the +2
examination conducted by the first respondent during March, 2002 and her
Registration Number is 880208 and she has secured 1141 marks out of 1200
marks. She belongs to Backward Community – Agamudiyar. She also appeared for
the Tamil Nadu Professional Course Entrance Examination, 2002 conducted by
Anna University for Medical as well as Engineering and her Registration Number
is 1532265 and has secured the following marks.
“Biology Group total : 95.80
Maths Group total : 89.26”
By converting the marks obtained in the qualifying examination and the
entrance examination, the petitioner secured 292.30 marks. The cut off marks
prescribed for the backward class for admission to MBBS course is 294.50. The
petitioner lacks behind by 2.20 marks for considering her claims for admission
to Medical College. She obtained 194 marks out of 200 marks in the Biology
paper, which is less, according to her assumption. Since she had a doubt
regarding the marks awarded to her in the subject Biology, she applied for the
xerox copy of the answer sheets in Botany and Zoology (Biology) and obtained
the same and found that the valuation is not proper and she has to be awarded
6 more marks in Biology. It is further stated that in Biology answer book,
for Question Nos.17 and 20 no marks were awarded though the answers are found
to be correct and tick marks have been made to that effect. So far as
Question No.23 is concerned, only one mark has been given. Similarly, in
respect of Botany Section, for Question No.35 one mark has not been given for
one step. After knowing these defects from the xerox copies of the answer
sheets, the petitioner applied for revaluation. Even prior to applying for
revaluation, the petitioner approached her Principal of her own School, who in
her letter dated 21.06.2002, addressed to the first respondent confirming the
claim of the petitioner with reference to the said four questions. The
instructions given by the first respondent with reference to revaluation is
highly arbitrary and unreasonable and no nexus to the object sought to be
achieved by revaluation. Even if there is a difference, that is increase, to
restrict it upto 3 marks for any change is absolutely arbitrary, unreasonable.
When the petitioner has given the correct answers for the questions, the
non-awarding of marks is contrary to law, illegal, hence the present writ
petition.
4. By order dated 26.06.2002, this Court issued rule nisi to
the respondents and ordered notice in WPMPs.No.31249 and 31250 of 2002.
5. In WPMP.No.31249 of 2002, the petitioner has prayed for
suitable directions to the second respondent to admit her provisionally to the
first year MBBS Course in one of the free seats for the academic year
2002-2003 according to her eligibility pending disposal of the above writ
petition.
6. In WPMP.No.31250 of 2002, she prayed for directions
directing the first respondent to value the answer books of her in the subject
of Biology (Botany & Zoology) by a competent valuer pending disposal of the
above writ petition.
7. When these petitions came up for hearing, Mr. M.
Venkatachalapathy, learned senior counsel appearing for the petitioner by
drawing my attention to the answers given in the answer book regarding
Question No.35 in Botany and Question Nos.17, 20 and 23 in Zoology and the key
answers for the respective questions furnished by the respondents would
contend that the petitioner is entitled to additional marks for the four
questions referred to above.
8. In the light of the assertion of the learned senior
counsel appearing for the petitioner, I have verified the above questions,
answers furnished in the xerox copy of the answer book of the petitioner and
the key answers furnished by the respondents. After hearing the learned
Additional Government Pleader, I directed him to secure a list of qualified
valuers available from the City. The learned Additional Government Pleader by
taking prompt steps furnished a list of valuers available in both the
subjects. Accordingly, on 11.07.2002, I have directed Ms. M. Vijayalakshmi,
PG – Assistant – Zoology, Government Model Higher Secondary School, Saidapet,
Chennai 600 015 to revalue the answer books of Botany and Zoology of the
petitioner. As directed, she appeared before the Court at 10.30 a.m. on
Tuesday i.e., 17.07 .2002. She informed the Court that she is a Biology
teacher and not conversant with Botany subject. Accordingly, the learned
Additional Government Pleader has secured one Mr. S. Santhanakrishnan, PG –
Assistant – Botany, The Muthialpet Higher Secondary School, Thambu Chetty
Street, Chennai 600 001 for valuation of Botany answer book. The learned
Additional Government Pleader has also produced the original answer book of
Botany and Zoology of the petitioner.
9. As directed by this Court, Ms. M. Vijayalakshmi, PG –
Assistant – Zoology, revalued the answers given by the petitioner relating to
Question Nos.17, 20 and 23 of the Zoology subject. After valuing the paper,
she filed a report stating that one mark each may be given to question No.17
and 20 and the mark awarded for question No.23 is correct. Mr. S.
Santhanakrishnan, PG – Assistant – Botany, after valuing Question No.35 in
Botany subject, also filed a report stating that 9 marks awarded for the
question No.35 is quite reasonable and according to him no further addition is
possible. The report of both the teachers shall form part of the Court
records. The learned senior counsel for the petitioner and the learned
Additional Government Pleader perused the reports and argued the matter.
After revaluation by the two teachers, it is clear that the petitioner is
entitled to another 2 marks in Zoology subject alone.
10. Mr. M. Venkatachalapathy, learned senior counsel
appearing for the petitioner by drawing my attention to the second part of the
prayer in the writ petition requested this Court to issue direction to the
Joint Director of Government Examination to issue revised enhanced mark list
to the petitioner. In the normal circumstance, there may not be any
difficulty in issuing such direction. However, learned Additional Government
Pleader by drawing my attention to G.O.Ms.No.8 School Education (V1)
Department dated 17.01.2001, would contend that in the light Condition No.(v)
therein and in view of the fact that even in revaluation the petitioner has
secured only 2 marks i.e., less than 3 marks, the same will not be considered.
In view of the said contention, I hereby reproduce the English translation of
Clause (v) in G.O.Ms.No.8 dated 17.01.2001.
“(v). On revaluation if the increase or decrease in mark is less than 3
(Three) the same will not be considered. However if it is 3 ( Three) and
above, the same will be effected in both ways (i.e. Either upward revision or
downward revision) and a new mark certificate will be accordingly issued to
candidates cancelling the earlier one.”
It is clear from the above said Government Order that though the candidates
are eligible to get the xerox copy of the answer book and also ask for
revaluation in certain subjects, as per Clause (v) referred to above, on
revaluation if the increase or decrease in mark is less than 3, the same will
not be considered. It is further clear that if it is three and above, the
same will be effected in both ways and new mark certificate will be
accordingly issued to the candidate cancelling the earlier one.
11. The learned Additional Government Pleader has also
brought to my notice the subsequent order of the Government in G.O.Ms.No.77
School Education (V1) Department dated 07.05.2001. After the subsequent
Government Order, while revaluing the answer book not only the increase but
also decrease in mark will be considered. However, as stated in the first
Government Order, the increase or decrease in mark if it is less than three
the same will not be considered and three and above the same will be effected
in both ways i.e., either upward revision or down ward revision.
12. The learned senior counsel appearing for the petitioner
by pointing out Clause (v) in G.O.Ms.No.8 dated 17.01.2001 would contend that
there is no basis to fix 3 and above marks for upward and down ward revision.
He also contended that adding of marks on revaluation even decimal constitute
a great change and in such a circumstance to prescribe a mark or limit is
opposed to public policy. I am unable to accept the said contention. First
of all, even after second revaluation at the instance of the Court the
petitioner had secured only 2 marks in the Biology paper and as far as this
year is concerned even after adding the said marks her claim cannot be
considered for Medicine, which is less than the prescribed cut off marks for
backward class. In this regard, learned Additional Government Pleader has
highlighted that since thousands of candidates apply for revaluation, it would
be possible for the revaluer to add fraction of marks, namely 1 or 2. If
those marks namely less than 3 are considered, it would upset the entire
programme for admission of professional colleges. I am of the view that the
claim of the learned Additional Government Pleader is quite reasonable and
acceptable. Further, though the petitioner is aware of condition No.(v) in
G.O.Ms.No.8 dated 17.01.1001, admittedly, she has not challenged the said
condition. No doubt, in the affidavit the petitioner has stated that the said
condition is unreasonable, opposed to public policy. The fact remains, the
said clause has not been questioned in an appropriate form.
13. It is also relevant to refer the recent decision of the
Hon’ ble First Bench of this Court in the case of V.J.Sharmi vs. Secretary,
Selection Committee, Chennai reported in AIR 2002 Madras 269, wherein the
condition prescribed in latter Government Order, namely, G.O.Ms. No.77 dated
07.05.2001 was questioned. The argument before the Bench is that the
Government is not justified in considering decrease in mark when the candidate
is applied for revaluation. Rejecting the said contention, the Hon’ble Chief
Justice speaking for the Bench has observed,
” 4. ….. The facility given by the State is by an executive order
and which is traceable to Art.162 of the Indian Constitution and students, are
given choice to apply for revaluation as a whole and cannot ask only a
particular answer to be revaluated. There is no provision for para wise
revaluation. In fact, as per the Scheme, the appellant has sought for
revaluation, which is in format and that is for whole. In this context, it is
relevant to state that it is not within the realm of the Courts to examine the
merits and demerits of a policy laid down by the Government. It is apt to
state what the Apex Court has stated in Maharashtra State Board of Secondary
and Higher Secondary Education vs. Paritosh Bhupesh Kumar Sheth, A.I.R. 1984
SC 1543, which laid down three legal principles to test the reasonableness or
otherwise of an education policy. Those are:
(i) Whether the provision of such regulations fall within the scope and ambit
of the power conferred by the statute on the delegate;
(ii)Whether the rules / regulations framed by the delegate are to any extent
inconsistent with the provisions of the parent enactment; and lastly
(iii) Whether they infringe any of the fundamental rights or other
restrictions or limitations imposed by the Constitution.
The Governmental Order referred to above is well within the above stated legal
principles. ”
It is clear from the Division Bench decision that it is not within the realm
of the Courts to examine the merits and demerits of a policy laid down by the
Government and in the absence of satisfying any one of the tests as enunciated
in A.I.R. 1984 S.C. 1543 (cited supra), the Government is well within their
powers to prescribe certain norms and conditions. Accordingly, though the
petitioner has secured additional 2 marks in Zoology, revised mark list cannot
be issued in the light of Clause (v) of G.O.Ms.No.8 dated 17.01.2001.
14. In the light of what is stated above, the writ petition
fails and the same is dismissed. No costs. This Court records its
appreciation for the timely assistance rendered by Ms. M. Vijayalakshmi, PG
– Assistant – Zoology, Government Model Higher Secondary School, Saidapet,
Chennai 600 015 and Mr. S. Santhanakrishnan, PG – Assistant – Botany, The
Muthialpet Higher Secondary School, 83, Thambu Cheety Street, Chennai 600 001.
In view of the dismissal of the main writ petition, connected
WPMPs., are also dismissed.
Index:Yes
Internet:Yes
kh
19.07.2002
P. Sathasivam,J.,
To
1.The Joint Director of
Government Examinations,
State of Tamil Nadu
College Road, Chennai 6.
2.The Secretary
Selection Committee (MBBS)
Kilpauk, Chennai 600 010.
Order in
W.P.No.22617 of 2002