*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY +W.P.No.17833 of 2009 %06.11.2009 #M.Karthik . ..Petitioner Vs. $N.T.R.University of Health Sciences A.P. and others. ..Respondents. !Counsel for the petitioner : Sri M.Chandrashekar Rao ^Counsel for the Respondents : Sri D.V.Nagarjuna Babu and GP for Medical & Health <Gist : >Head Note: ?Cases Referred: 1. 1996 (3) ALT 609 (DB) THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY W.P.No.17833 of 2009 ORDER: An excellent performance would certainly bring laurels. However, it is not uncommon that, envy and jealousy would make their visits to the performer. While in some cases the envy is easily deflected in rare cases, it deals with a severe blow outwitting the excellent performance. The case on hand presents an instance. By any standard, the petitioner is an extraordinary genius. If his performance in the public examination is to be reckoned, he secured 91% in S.S.C. examination, which secured him a seat in Intermediate in a residential college, with exemption of tuition fee. He stood first in the Intermediate Public Examination, held in 2002-04, by securing 96% marks. In the Common Entrance Examination for Medical and Engineering Courses, held in that year, he secured 87th rank, and got admission in the Guntur Medical College. It is stated that his performance was the best in the Guntur District. After joining the MBBS course, he stood first in all the first year subjects. It is singularly to his credit, that he secured 100% marks in Anatomy, which is said to be history, ever since the college was established. By the time he reached the V-Year, he was awarded about half a dozen gold medals, and hardly, there was any subject, in which, his performance was not superlative. He has also taken an examination overseas for future studies, even while studying MBBS. In the final MBBS, one of the subjects is Obstetrics and Gynecology (for short ‘O & G’). The 3rd respondent is the Head of the Department in the Guntur Medical College. The first roadblock, on the otherwise smooth and bright career of the petitioner, was created by the 3rd respondent, when he declared that the petitioner has less than 75% attendance. That led to the filing of W.P.No.3913 of 2009, before this Court. The enquiry and verification of the entire episode discloses that the attendance was not properly marked, so much so, that the petitioner was shown as present, even on the days, on which, he was in U.S., to take United States Medical Licensing Examination. His attendance in other subjects was more than what is required. On the basis of an interim order passed in the writ petition, the petitioner was permitted to appear in the examination. He implored upon the University authorities to enable him to appear from a different centre, lest, the presence of the 3rd respondent would have its effect on the result. The request, however, was not acceded to, and the petitioner was made to take practical examination in the same institution. In theory, he secured 69 out of 110. However, in practical examination, he was awarded 19 out of 50 marks. Had one more mark been awarded to him in the practical examination, he would have emerged in flying colours, on account of the over all performance in the course. The award of one mark less, gave rise to a situation, where the petitioner has to be treated as a referral candidate, which would virtually wipe-away brilliant and excellent performance, for the past five years in the MBBS course. It is in this context, that the petitioner filed this writ petition for a declaration to the effect that he secured pass marks in the practical examination of ‘O & G’ held on 06.04.2009, by adding one mark in addition to five grace marks, which a candidate is otherwise entitled to, under the relevant Rules. In the alternative, he prayed for direction to the respondents to conduct practical examination, for him, in that subject, from a Medical College outside Guntur. The Principal of the Medical College, the 2nd respondent, filed counter-affidavit. He did not deny the meritorious performance of the petitioner and the laurels earned by him. It is, however, stated that excellent performance in one subject, cannot lead to any reference about the performance in other subjects. Sri Movva Chandrashekar Rao, learned counsel for the petitioner, submits that this is a classic example of victimization of a brilliant student for no fault of him. He contends that, if one looks at the career of the petitioner from the beginning, it is just unthinkable that he would fail in a practical examination by one mark. Learned counsel has brought to the notice of this Court that, in pursuance of an order passed by this Court, on 02.09.2009, the petitioner was permitted to take examination in ‘O & G’ from the Gandhi Medical College and that, he was awarded 82/110 in theory and 44/50 in practical. He submits that, unless the wrong done to the petitioner is set at naught, the entire performance, which earned laurels and substantial number of gold medals to the petitioner, would go waste. He contends that the petitioner cannot be made to suffer the arbitrary, ignoble and unethical deeds resorted to, by some individuals. Sri D.V.Nagarjuna Babu, learned Standing Counsel, and learned Government Pleader for Medical and Health, submit that there is absolutely no reason for the respondents to have prejudice, against the petitioner, and the marks were awarded strictly, on the basis of the performance of the petitioner. He contends that, though the petitioner may have performed well in other subjects, it cannot be taken it for granted, that his performance would be of the same standard, in other subjects. The academic caliber of the petitioner in the studies up to intermediate, in the entrance examination, and in the MBBS, in all the subjects, except the ‘O & G’, has been mentioned, in brief, at the threshold itself. He met with a roadblock for the first time, when the 3rd respondent certified his attendance to be less than 75%. The petitioner approached this Court, by filing a writ petition. It emerged that the manner, in which the attendance registers were maintained, by the 3rd respondent herein, was not proper, and that it is just impossible for the petitioner, to have less than 75% attendance. Support was derived from the fact that his attendance in other subjects of the same year was more than satisfactory. It was demonstrated that the marking of attendance by the 3rd respondent was fallacious. The result was that the petitioner was permitted to take the examination. However, while appearing in the examination, the petitioner expressed his apprehension that he may be victimized, if he is to take the examination from his college. In all fairness, respondents 1 and 2 ought to have acceded to the request of the petitioner to allot him a centre outside Guntur District, lest he is victimized by the 3rd respondent with doubled vigor, particularly when his attempts to prevent the petitioner from taking the examination did not fructify. The apprehension of the petitioner came true, and he was awarded 19 marks in the practical in the subject. The award of marks was so planned, that there is no way, the petitioner could have been rescued. According to the Rules and Regulations of the University, a candidate must secure 50 marks in practical i.e. 25 out of 50. The regulations also provide for addition of five grace marks, if a candidate would clear the subject with the help of such grace marks. Had the petitioner been failed in the practical examination, with less than five marks, he would have had the benefit of grace marks, and in combination with the marks secured in theory examination, he would have got through. Obviously, keeping this in view, 19 marks were awarded. This Court is of the view that, with the steady deterioration of values in the society, the relationship between a teacher and student has also suffered a serious set back. It is relevant to mention here that, in the ancient system of life, and in particular, of education, Guru i.e. the Teacher, was equated to the Almighty. The parents give birth to a child. The child, however, is moulded, as human being, by the teacher. In the Tithreyopanishath, which is mostly about the method and content of learning by a student, the relationship between a teacher and student is explained, in the following sloka: “Om saha na vavathu – saha nou bhunakthu – saha veeryam kavaravavahai – tejaswi navadheethamastu – ma vidvishavahai – om shanthi, shanthi, shanthi:” This is a joint prayer by a Guru and Shishya to the Almighty. They pray that, let both of them be protected; they be nourished by the Almighty; let they be given the ability and determination to do the works and let there not be difference of opinion and envy against each other. They ultimately appeal that any aberrations, as to self (Adhyatmika), mundane (Adhibhoutika) and spiritual (Adhyatmika) aspects, be purified. Till the nation adopted what is known as a progressive method of education past few decades ago, the sloka used to be part of curriculum and naturally teacher-student relationship was guarded and protected to a large extent. One does not have to look for examples for the effects of neglecting such noble ideas, than the present case. Instances of this nature are not lacking. In M.Lavanya Dutt v. J.N.T.U.[1], a student, who was otherwise eligible to be awarded the gold medal in fine arts, in the Jawaharlal Nehru Technological University, became the victim of one of the Teachers. Award of one mark, in a practical examination, would have enabled her to secure the gold medal. To ensure that such a possibility does not exist, the Professor awarded zero for the performance in a practical. It was in relation to an art work and not a problem of mathematics. Writ petition filed by her was dismissed. In the writ appeal, the Division Bench of this Court got the same practical work evaluated by a Professor from outside the JNTU. It was awarded 32 marks. This Court came heavily upon such a practice, and has this to say, in the context. “As we have said earlier, when experts examine the answer books of the students and award marks, Courts do not interfere. Courts also do not recommend any violation of the regulations of the University and other public authorities who conduct examinations and when regulations/rules do not provide for re-valuation, give no orders for such re-valuation. The Court, in the instant case, also has exercised the said refrain and has not directed for revaluation of the answer book of the petitioner-appellant. All that the Court wanted to ascertain was whether there was genuine valuation of the answer of the petitioner-appellant to the question i.e, the painting by her. The exercise of seeking assessment of the merit of the petitioner-appellant by someone other than the fourth respondent has revealed that she deserves not ‘Zero’ but ‘32’ marks. It is thus not a case of re-valuation of the answer book of a student, but a case of assessment of merit which apparently was not done by fourth respondent at all. We see no justification in the assertions of the fourth respondent before this Court that his vast experience and expertise prompted him to award ‘Zero’ marks for the painting by the petitioner-appellant. No examiner, particularly, appointed by a body like respondent-University is expected to go by his subjective satisfaction or appreciation which is either below the standard or above the standard. The evaluation of merit of a student has to be done by the standard of the students in general and the curriculum for the class or the standard of the examination. No two examiners thus can apply two different standards and evaluate answers of the students in accordance with their own set standards. They have to evaluate the answer given by the students with such objectivity and clarity that on one develops any doubt about the correctness of the assessment. We have, in the instant case, no quarrel with any sense of superiority of the fourth respondent as an artist or a painter or even as a distinguished teacher as the case before us is concerned with the valuation of the merit of the petitioner-appellant only. Sometimes acting innocently and even honestly, people do act unjustly and we cannot, on the facts of the instant case, rule out such unjust act on the part of the fourth respondent inflicting serious injury to the petitioner-appellant. We do not, for the said reason, feel persuaded to go any further into the issue of mala fides or even the issue whether there has been any deliberate act involving the fourth and fifth respondents in some sort of collusion or even any of them having any dishonest intentions to harm the interests of the petitioner- appellant. We note, however, with regret, the loss which the petitioner-appellant has suffered, may be she has been a victim of circumstances. Since we have found that the petitioner-appellant has been wrongly assessed for ‘Zero’ marks and thus has wrongly been declared to be failed, the respondent University is required to declare her result and accordingly permit her to pursue her higher studies.” Thus, the entire injustice done to the candidate was effaced. Same principle gets attracted in the instant case. This Court passed a detailed and reasoned order on 02.09.2009, directing that the petitioner to be permitted to take examination in the Gandhi Medical College, held from 04.09.2009 onwards. He was accordingly permitted and secured 82/110 in theory and 44/50 in practical examination. The performance of the petitioner in the examination held on 06.01.2009, deserves to be totally ignored for more than one reason. It may be true that the 3rd respondent was not the examiner, and that no mala fides are pleaded, or proved, against him. However, once the petitioner expressed his apprehension even before the examination commenced, he cannot be made to suffer the consequences. It is not a case where an otherwise dullard is trying to choose the place of examination etc., or to avoid examiners. The University and the College ought to have ensured that the petitioner is not made the victim to any prejudices. Small effort on their part would have avoided the unfortunate episode. It is not out of place to mention that if the petitioner is going to make remarkable progress in the field of medicine, the considerable part of the fame would go to the University and the College. On the other hand, if the injustice caused to the petitioner is permitted to remain, message will go across, that the college is a place, where merit is killed and not rewarded. Consequently, the college and the University shall have to bear the ignominy. Viewed from any angle, the petitioner deserves to be granted the relief, and such a relief indeed would be in the interests of the respondents also. Hence, the Writ Petition is allowed, and it is directed that the University shall take into account the performance of the petitioner, in the examination, held on 04.09.2009, and ignore the one, in the examination, held on 06.04.2009, particularly for the subject of Obstetrics and Gynecology. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY, J Dated:06.11.2009 GJ [1] 1996 (3) ALT 609 (D.B.)