HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY Writ Appeal Nos.402, 403, 404, 405, 413, 414, 415, 416 and 451 of 2007 Writ Appeal No.402 of 2007 Between: The Chancellor, Dr.N.T.R. University of Health Sciences, Hyderabad and another … Appellants And Kondapavuluri Benod Kumar and others. … Respondents :: J U D G M E N T :: Counsel for the appellants : Shri C.V. Mohan Reddy, Senior Advocate, assisted by Shri D.V. Nagarjuna Babu. Counsel for respondent Nos.1 : Shri K. V. Bhanu Prasad to 19 Counsel for the respondents in : Shri V. Venkataramana some of the connected appeals Shri M. Ratna Reddy. 20th July, 2007 Per G.S. Singhvi, CJ Whether the Vice-Chancellor of Dr. N.T.R. University of Health Sciences (for short, ‘the University’) could, in exercise of the power of supervision and control vested in him under Section 12 (2) of the NTR University of Health Sciences Act, 1986 (for short, ‘the Act’) facilitate re-verification of the answer scripts of 1st year MBBS examination held in 2006 which, as will be seen hereinafter, ultimately turned out to be an exercise for revaluation and whether the Executive Council of the University could cancel the revised result announced on 2.2.2007 are the main questions, which arise for determination in these appeals filed by the Chancellor and the University against order dated 1.5.2007 passed by the learned Single Judge in Writ Petition No.8658 of 2007 and batch. For deciding the above noted questions, we have culled out the facts from the pleadings of the parties and the files and records produced by Sri D.V. Nagarjuna Babu, Standing Counsel for the University. The respondents joined 1st year of MBBS course in 2006-07 in different private medical colleges affiliated to the University. They appeared in the examination held from 5th September to 10th October, 2006 in the subjects of Physiology, Anatomy and Bio- Chemistry (two papers each). The result of the examination was declared on 02.12.2006. Out of 4076 candidates, who appeared in the examination, 992 were declared “fail” in different papers. A substantially large number (436) of them applied for re-totalling for which provision has been made by Resolution No.XXII passed by the Executive Council of the University in its meeting held on 11.1.1989. The process of re-totalling was undertaken from 29.1.2007 to 31.1.2007. At that stage, some representations were submitted to the University on behalf of the students in the name of M.B.B.S. 1st year Students Parents Association with the complaint of improper valuation and under-valuation of the answer scripts. Similar representations were made to the Chancellor of the University, the Chief Minister and the Minister for Medical, Health and Family Welfare. The same were forwarded to University. Some of the failed students also met the Registrar and made request for re-valuation. On 3.1.2007, the University constituted a committee comprising of Prof. Honeyman, Head of the Department of Anatomy, Kurnool Medical College, Dr. Malleswari, Professor and Head of the Department of Physiology, Guntur Medical College, Guntur and Dr. K.L. Prabhakar Reddy, Professor and Head of the Department of Bio- Chemistry, Siddartha Medical College, Vijayawada for re-verification of the answer scripts. Subsequently, Dr. G.S.R. Sharma, M.D., Professor and Head of the Department of Physiology, Guntur Medical College was nominated to the committee because Dr. Malleswari expressed her inability to attend the work. The members of the committee attended the University and undertook the so-called re- verification, which has also been described in the records of the University as re-examination of the answer scripts and recorded marks on printed slips of papers, which were stapled at the top of the answer scripts. According to the writ petitioners, the process of re- verification/re-examination took about ten days, but the note sheets made available by the learned counsel for the University and affidavits filed on its behalf contain different versions of the actual days during which the process of the so-called re-verification was undertaken. The note recorded by Superintendent, Assistant Registrar (Examination) and Registrar on 31.1.2007, which also bear the signatures of the Vice-Chancellor with the date as 1/2, reveal that the committee attended the University on 13th and 14th January, 2007 and completed the re-examination of answer scripts and returned the same. However, in the affidavits filed on behalf of the University by Sri G.V. Sankara Rao, Legal Officer in Writ Petition No.2925 of 2007 – P.N.Swathi Lavanya and others v. Dr. N.T.R. University of Health Sciences, and batch, as also in the affidavit filed by Sri A. N. Murthy, Joint Registrar (Examination) in Writ Petition No.8819 of 2007, the dates of re-examination have been mentioned as 17th and 18th January, 2007. Some answer scripts, which were left out from the process of re-verification/re-examination, were sent to one or the other member of the committee, who is said to have again undertaken that exercise and returned the same to the University. On 2.2.2007, the University declared the revised result and, thereby, 294 of the students, who applied for re-totaling, were declared “pass”. In the meanwhile, the University received communications from the Minister for Medical, Health and Family Welfare along with a complaint that irregularities were committed in the process of re- verification/re-examination. A similar complaint was received by the Vice-Chancellor through e-mail with allegations against the Examination Section and the Registrar of the University. In the backdrop of these complaints, the matter was placed before the Executive Council for ratification of the action taken by the University i.e. re-totalling and re-verification of answer scripts. Item 5 of the Agenda, which was placed for consideration in 168th meeting of the Executive Council held on 10.2.2007, was as under: “ITEM -5 TO CONSIDER THE DECIDE THE ACTION TAKEN i.e. RETOTALLING AND REVERIFICATION OF ANSWER SCRIPTS RELATED TO 1st MBBS EXAM HELD IN SEPTEMBER/OCTOBER, 2006. *** The 1st MBBS exams were conducted in the month of Sept/Oct,2006 and results were declared in the month of December, 2006 and the re- totalling of the scripts was allowed from 28-12-2006 to 30-12-2006. During re-totalling 435 students complained that all the three papers (Anatomy, Physiology and Biochemistry) were not valued properly and the examiners were harsh in their valuation and awarded zero marks for some questions though some points were correct. The parents of these students also represented that the evaluation was not fair. As the pass percentage of the colleges (from which these students came was less (80%) compared to other colleges where the pass percentage was more than 90%) the Hon’ble Vice-Chancellor assured them to have the answer papers reconsidered. Accordingly the following committee has been appointed to reexamine the answer sheets. 1) Dr. K.Prabhakara Rao, Prof. & H.O.D. of Biochemistry, Siddartha Medical College, Vijayawada. 2) Dr. Haniman, Prof. & H.O.D. Anatomy, Kurnool Medical College, Kurnool. 3) Dr. G.S.R. Sarma, Prof. & H.O.D. of Physiology, Siddartha Medical College, Vja. The committee met at Dr. N.T.R. University of Health Sciences on 13.01.2007 & 14.1.2007 and gone through the answer scripts of all the three subjects (e.g. Anatomy, Physiology and Biochemistry) belonging to these students and as a result of the same, the marks awarded were revised and communicated to the respective colleges on 02.01.2007 (Approx. result of 294 candidates). The matter is placed before the Executive Council to ratify the action taken by the University i.e. reexamination of the answer sheets of First MBBS Course. Matter for decision: To ratify the action taken by the University i.e. re-totalling and re- verification of answer scripts related to 1st MBBS examinations held in Septemebr/October, 2006.” The Executive Council did not approve the action of the Vice- Chancellor and other functionaries and resolved to ask the State Government to constitute a High-level Committee to verify the following aspects: “1) To find out the circumstances under which reconsideration (re- verification) of answer scripts was taken. 2) To find out whether any irregularities happened while carrying the above work.” Simultaneously, it was also decided to withhold the revised result till the receipt of the enquiry report. In furtherance of the aforementioned resolution, letter dated 10.2.2007 was sent to the State Government for constituting an enquiry committee. After two days, fax messages were sent to the Principals of all the colleges informing them about the decision of the Executive Council. The above decision of the Executive Council was challenged by the students in Writ Petition Nos.2926, 2986, 2997, 3017, 3056, 3135, 3136, 3151, 3161, 3213, 3237, 3303, 3625 and 2767 of 2007. Some of the students, who did not apply for re-totalling, also filed Writ Petition Nos.4053, 4113, 4954 and 4968 of 2007 for issue of a direction to the University to undertake re-verification/re-examination of their answer scripts as well. One writ petition i.e. W.P.No.6897 of 2007 was filed for cancellation of the entire process of re- verification/re-examination. In the context of the above litigation, the matter was referred by the University to the Advocate General of the State, who opined that the revised result should be cancelled because revaluation of the answer scripts is legally impermissible. The matter was then considered by the Executive Council in its 169th meeting held on 2.4.2007. The Vice-Chancellor of the University informed the members of the Executive Council that revaluation was undertaken by the University in good faith under circumstances of pressure created by the parents and students, who failed in the examination. After considering his version and the opinion of the Advocate General, the Executive Council decided that the whole process of revaluation be cancelled and an opportunity be given to the failed students to re-appear in the examination scheduled to be held from 25.4.2007. For the sake of reference, the relevant extracts of resolution dated 2.4.2007 are reproduced below: “The Executive Council met on 02.04.2007 and discussed the various issues in the light of the reply received from the Principal Secretary, HM & FW Dept., on the request made by the Executive Council in its last meeting held on 10.02.2007 regarding 1st MBBS examinations held in Sept/Oct,2006. The Vice-Chancellor has informed the Hon’ble members of the Executive Council that the revaluation was undertaken by the University in good faith under circumstances of pressure created by the parents and students who failed in the examination. However, the Executive Council agrees with the opinion of learned Advocate General, High Court of A.P., Hyderabad that the revaluation is not legal and liable to be cancelled and it results in dilution of the standards of education. The University also does not have the provision of revaluation of answer scripts. It is, therefore, unanimously resolved that the whole process of revaluation should be cancelled and the students who failed in Sept/Oct, 2006 examination to reappear in the University exam that is scheduled from 25th April, 2007. The resolution to be referred to His Excellency Chancellor, NTR UHS for approval.” (underlining is ours) The Chancellor of the University approved the above reproduced resolution. This was conveyed to the University by the Principal Secretary to Government, Health, Medical and Family Welfare Department vide his letter dated 18.4.2007. The respondents challenged the cancellation of the revised result in Writ Petition No.8819 of 2007 and batch mainly on the ground that the decision of the Executive Council is ultra vires the provisions of the Act. They defended the action taken by the Vice- Chancellor by asserting that he had done so in exercise of the power vested in him under Section 12(3) of the Act. They pleaded that the original valuation was not done properly and, on that account, more than 20% of the students were declared “fail” necessitating revaluation of the answer scripts. Another plea taken by the respondents was that the result of re-verification/re-examination could not have been scrapped without giving the affected students action- oriented notice and opportunity of hearing. In the counter-affidavit filed in Writ Petition No.8819 of 2007, Shri A.N. Murthy, Joint Registrar (Examination), narrated the background in which re-examination of the answer scripts was done by three member committee. He made a reference to the applications filed by the students for re-totalling of the marks, the representations made by the parents association to the Vice-Chancellor and others and the former’s decision to constitute three member committee for re-verification of the answer scripts. Shri Murthy then averred that the Executive Council did not approve the exercise done by three member committee because there is no provision in the Statutes for revaluation of the answer scripts. He also pleaded that the revised result was cancelled in pursuance of the decision taken by the Executive Council. The learned Single Judge, after taking note of the factual matrix of the case and Section 12 of the Act, held that in exercise of the power vested in him under Section 12 (2), the Vice-Chancellor could order re-verification of the answer scripts and the Executive Council did not have the power to nullify his action. The learned Single Judge referred to the judgments of the Supreme Court in State of Orissa v. Prajnaparamita Samanta[1] and President, Board of Secondary Education v. D. Suvankar[2] and held that the Vice- Chancellor did not commit any illegality by ordering re-verification of the answer scripts. He distinguished the judgment of the Supreme Court in Maharashtra S.B.C.S. & H.S. Education v. Paritosh[3] and judgment dated 22.9.2006 of the Division Bench in N.T.R. University of Health Sciences, Vijayawada v. T. Deepthi and others (Writ Appeal No.960 of 2006) by observing that even though the student may not be entitled to ask for re-valuation of the answer scripts, the University can suo motu undertake that exercise. Accordingly, he set aside the decision of the Executive Council and declared that the writ petitioners shall be entitled to continue their study in the 2nd year. At the same time, the learned Single Judge observed that the order passed by him shall not be treated as a precedent for any other case and the University shall not entertain any further re-verification of the answer script of any other candidate of the same batch. Shri C.V.Mohan Reddy, learned Advocate General appearing for the appellants argued that in terms of Section 12 (2) of the Act, the Vice-Chancellor can exercise general supervision and control over the affairs of the University and give effect to the decision of other authorities of the University, but he cannot take decision or pass an order in derogation of the statutory provisions. Learned Advocate General pointed out that the Act and the statutes framed thereunder do not contain any provision for re-verification or re-examination of the answer scripts of any examination and argued that in the purported exercise of his power of general supervision and control over the affairs of the University, the Vice-Chancellor could not have passed an order for re-verification, which ultimately turned out to be an exercise for re-valuation. He then submitted that even in exercise of emergency power under Section 12 (3) of the Act, the Vice- Chancellor cannot order or facilitate re-valuation of the answer scripts. Learned Advocate General emphasised that the entire exercise undertaken for the so-called re-examination/re-valuation was contrary to the scheme of the Act, and argued that this left the Executive Council with no option but to cancel the revised result. Learned Advocate General referred to Statute 4 of the University Statutes, Section 19 of the Act and para 5 of the Statutes and argued that in its capacity as principal executive body of the University, the Executive Council has the powers to rescind the decision of the Vice- Chancellor and the learned Single Judge committed a serious error by nullifying resolutions dated 10.2.2007 and 2.4.2007. Shri V. Venkata Ramana argued that the expression “general supervision and control over the affairs of the University” used in Section 12 is very wide and the Vice-Chancellor is competent to pass appropriate order and issue direction in the interest of the students. He submitted that the original valuation done by the examiners was highly arbitrary and the Vice-Chancellor must have ordered for re- verification of the answer scripts because he felt convinced that the grievance made by the students and their parents was genuine. Shri Venkata Ramana then argued that the decision of the Vice- Chancellor to appoint three member committee for re-verification of the answer scripts, which, later on, turned out to be an exercise for re- valuation, was in consonance with the scheme of Section 12 of the Act and the learned Single Judge rightly upheld the same. In the end, he submitted that even if the Court comes to the conclusion that the revaluation of answer scripts could not have been undertaken, the revised result may be restored in the interest of the students because they have already completed more than five months of study in 2nd year of MBBS course. S/Shri K.V. Bhanu Prasad and M. Ratna Reddy argued that even though there is no provision in the Act and the Statutes for revaluation of answer scripts, the suo motu action taken by the Vice- Chancellor to appoint three member committee for re-verification of the answer scripts cannot be termed as illegal because the original valuation of the answer scripts was full of mistakes. They further argued that re-examination done by three member committee represent correct valuation of the answer scripts and, therefore, the Division Bench may not interfere with the order of the learned Single Judge. Shri K.V. Bnahu Prasad criticised the report of four member committee constituted by the University and submitted that without undertaking valuation of the answer scripts, the committee could not have debunked the assessment made by three member committee, which was constituted in January, 2007. Learned counsel pointed out that in the year 2004, the University had undertaken similar exercise for revaluation of answer scripts and argued that the decision taken by the Vice-Chancellor to appoint three member committee for re-verification cannot be faulted. All the learned counsel submitted that the Division Bench may not interfere with the revised result announced on 2.2.2007, else, careers of the respondents will be jeopardized. We have given serious thought to the entire matter and scrutinised the records including the answer scripts of the students who applied for re-totalling. We have also perused three files made available by the counsel for the University, which contain applications and representations made by the students and their parents, the representations forwarded by various functionaries of the government to the Vice-Chancellor. File No.08254/E1(A)/MBBS/2006/Part contains two letters dated 25.1.2007 written by Dr. A. Shanta Kumari, Associate Professor, Department of Physiology, Siddartha Medical College, Vijayawada and Dr. G.S.R. Sarma, Professor, Head of the Department, Siddartha Medical College, Vijayawada. Both have categorically stated that the questions in the two papers of Physiology were not out of syllabus. The second file contains 86 applications made by the students in the month of February, 2007 for re-verification/re-valuation on the ground that they had not applied earlier for re-valuation because there is no provision in the Act for doing so. The original note sheets produced by the learned counsel for the University are worth noticing. The same read as under: “1. As per the orders of Hon’ble Vice-Chancellor on the representations of the parents/students of 1st MBBS – September/October, 2006, we may constitute the following Committee as directed by Registrar to examine/reverification the answer sheets of Physiology, Anatomy and Biochemistry. 1. Honeyman, M.D., Prof. I/c. & HOD of Anatomy, Kurnool Medical College, Kurnool. 2. Dr.Malleswari, Prof. & HOD of Physiology, Guntur Medical College, Guntur 3. Dr.K. Prabhakara Rao, Prof. & HOD of Biochemistry, Siddhartha Medical College, Vijayawada. Sd/- Sd/- Sd/- Regr. V.C. 3/1/07 3/1/07 3/1/07 2. As Dr.Malleswari, Prof & HOD of Physiology, GMC, Guntur expressed her inability to attend to the above work, Dr.G.S.R. Sarma, MD, Prof. & HOD of Physiology, GMC, Guntur is appointed to complete work on 13.1.’07 and on 14.1.07. P.F.A. of V.C. Sd/- V.C. 23/1/07 3. O.N.dt.25/01/2007 Submitted: Ref: Lr.No.A3/77/8/2007, dt.12.1.2007 for the Secretary to Government of A.P. --- Letter received from the Secretary to Government in the ref. cited may kindly be seen. 4. As per the Endt. Of the Vice Chancellor on the above letter, the draft letter is prepared and placed below for kind approval. Sd/- Sd/- Sd/- Sd/- Supdt. JR Regr. 25/01 25/1 Sd/- Vice-Chancellor 25/1 O.N.dt.29/01/2007 Submitted 5. It is submitted that the following Answer Scripts of I MBBS Course are not re-examined by the concerned HOD’s. Biochemistry – 1 No. (Paper I) Anatomy - 2 Nos. (Paper I + Paper II) Physiology- 1 No. (Paper II) - - - - - - Total: 4 scripts - - - - - - - - 6. Hence, if pleased, the above scripts may be sent to the concerned Prof. & HODs. of Siddhartha Medical College for re-verification. 7. Submitted for kind perusal and for orders. Sd/- Sd/- Sd/- AR (E) JR(E) 29/01 29/1/07 The above contd. Regr. 8. Professors who were involved in the process of reconsideration may be called to attend to the university on 30.1.’07 and complete the work. Sd/- Sd/- 29/1/07 29/1/07 Regr. Vice Chancellor O.N. dt.31.1.2007 Re-submitted 9. As per the above orders, the answer scripts of the students of all three subjects were handed over to the Members of the above committee on 13.1.2007. The committee attended the NTRUHS on 13th and 14th Jan 2007 and completed the re-examination of the answer scripts and returned the same. 10. It may be seen that as a result of re-examination, there are some changes in the marks awarded and change in the result also in case of some students. 11. In view of the above, file is submitted for further directions/ orders in the matter please. Sd/- Sd/- Sd/- Sd/- 31/01 31/1/07 31/1 Supdt. AR (Exm) Regr. Sd/- V.C. 1/2 Submitted for perusal 12. A committee of 3 professors of Anatomy, Biochemistry and Physiology were appointed in the university on 12-1-07 and they were requested to complete the work within 2 days. But it couldn’t be completed within 2 days because of the large number of scripts. 13. On verification of the scripts submitted by the professors, six scripts were left not valued. Again those scripts were given to the same team to value. ] 14. The team valued the scripts and submitted to the university. Submitted for perusal & orders. 15. Sd/- Results may be declared 2/2/07 Sd/- O.N. dt.2-02-2007 Re-submitted 16. As per the above orders of the Vice Chancellor, the draft result copy is prepared and placed below for kind approval. Sd/- Sd/- Sd/- Sd/- 2/02 2/2/07 2/2 Supdt. AR (Exm.) JR (E) Regr. 17. As directed by Hon’ble V.C. a draft letter addressed to all the PPLs of Medical Colleges not to give effect to the results of the re-examination/re- verification till further order is placed below for approval. 18. Submitted for perusal & orders. Sd/- Sd/- Regr. Sd/- 8/2 8/2/07 8/2/07 Vice-Chancellor 19. The reasons for ordering for reconsideration of the scripts of the candidates that applied for retotalling be furnished. The circumstances that forced the university to appoint a committee to examine/revalue the answer sheets of Physiology, Anatomy and Biochemistry to be furnished immediately. Sd/- 8/2/07 20. The circumstances under which the committee was appointed are explained in Page 1. Further, the committee was appointed on the suggestion (Members of the Committee) of the Registrar. Sd/- 8/2/07 Regr. 21. The file was handed over personally to V.C. Sd/- 8/2/07 22. The file was handed over to me today (12-2-07) for preparing a draft letter addsd to all the Principals of Medical Colleges not to give effect to the retotalling/reverifiction results. 23. Accordingly a draft letter is put up below for approval. Sd/-12/2/07 Sd/- Regr. Sd/- 12/2 V.C.” Sections 2(e), 12, 18, 19 and 20 of the Act and Statutes 5(1) and (16), 8(1) and (2) of the Statutes, which have bearing on the decision of the appeals, read as under: “2. Definitions:- (e) “Authority” means any Authority of the University specified in Section 18; 12. The Vice-Chancellor:- (1) Vice-Chancellor shall be appointed by the Chancellor from out of a panel of names in the alphabetical order