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Judgment
S. Abdul Nazeer
In these cases, the Petitioners have sought for quashing the results of their practical examination of MDS Course held during May, 2011 in the subject Oral and Maxillo Facial Surgery''
The Petitioners had joined A.B. Shetty Memorial Institute of Dental Sciences, Deralakatte, Mangalere for the study of MDS Course in ''Oral and Maxillo Facial Surgery'' for the academic year 2008-2009. They appeared for the.examination held during May, 2011. with register Nos. 08EX077 and 08EX082 respectively. In order to pass in the said examination, a student has to secure 50% in theory component and 50% in practical including clinical and viva-voce. The first Petitioner has secured 258 marks out of 400 in the theory and 132 marks out of 300 in the practical''s examination. Similarly, Petitioner No. 2 has secured 240 marks out of 400 in theory and 127 marks out of 300 in the practical''s. Since the Petitioners have failed to secure 50% marks in practical examination, the University has declared them as failed.
The contention of the Petitioners is that they are bright students throughout their.academic career. Dr. Deepak Pai. an internal examiner was inimical, towards them. He wanted the Petitioners to fail in the examination. That is why. the Petitioners gave representations to the Chancellor, Vice Chancellor and to the Chairman of the NITTE Education Trust, Mangalore as per Annexure, ''D'', ''E'' and ''F'' respectively informing them that Dr. Deepak Pai the Invigilator incharge of the examination had even before, the examination, during the examination and after the examination informed them that they would be failing in the practical examination. They have requested the authorities concerned to probe into the matter and do the needful, it is the case of the Petitioners that since no steps have been taken, they were deliberately declared as failed in the practical examination. Therefore, they have filed these writ petitions seeking the following reliefs:
a) Issue an order or direction or writ in the nature of writ of certiorari quashing the practical examination results of the Petitioners in Oral and Maxilo Facial Surgery, subject, vide (RS2) Master of Denial Surgery, May 2011. Register No. 08EX077 (Annexure ''J'' in respect of 1st Petitioner and (RS2) Master of Dental Surgery May, 2011 Register No. 08EX082 (Annexure ''K'') in respect of 2nd Petitioner.
b) Issue an order or direction of writ in the nature of writ of mandamus directing the Respondents 1 and 2 to allot grace marks of 18 to first Petitioner and 23 marks for 2nd Petitioner in practical examinations of Oral. and Maxilo Facial Surgery M..D.S. final year for the year 2011; or in the alternative to conduct practical reexamination in Oral and Maxilo Facial Surgery M.D.S. final year for the year 2011;
c) Issue any other direction/orders as deems fit and proper including the cost of the proceedings.
I have heard the learned Counsel for the parties.
It is clear from the marks cards of the Petitioners at Annexure ''J'' and ''K'' that the first Petitioner has secured 64% marks and second Petitioner has secured 60% marks in theory. However, in the practical examination, they have secured 44% and 42% marks respectively The material on record indicate that Petitioners are bright students. They have secured good marks in their under graduate examinations. They have also participated in the other extra auricular activities and have won prizes. When the Petitioners complained to the Minister for Medical Education, he sent a letter as per Annexure ''R'' dated 21.6.2011 to the Principal Secretary to the Chancellor as under:
S.A. RAMADASS Minister for Medical Education, and Mysore District In-charge Minister.
Room No. 406-407, Vikasa Soudha, Bangalore Tele No. 080-22252475 22934171 email: [email protected]
No. MME/345/2011
Date: 21.5.2011
To,
The Principal Secretary to His Excellency Governor. Government of Karnataka. Vidhana Soudha. Bengaluru.
Sir,
Sub: Request for an re-examination in the MDS Practical Examination.
Ref: Petition dated 26.5.2011 of Dr. Manjunath. N.M. And Dr. Stmil S. Nayak.
Your kind attention is drawn to the petitions at reference above. The complainants have brought to our notice the harassment; meted to Dr. Manjunath NM and Dr. Sunil S. Nayak. in MDS Practical Examination conducted by the A.B. Shetty Memorial Institute of Dental Sciences on 1.6th and 17th May 2011. In this petition, the said candidates who are post graduation students in the Department of Oral and Maxillofacial Surgery studying in A.B. Shetty Memorial Institute of Dental Sciences, Mangalore have narrated the following incidents in their petition.
Dr. Deepak Pai, the invigilator incharge of the said examination had even before the Practical Examination, informed them that they would be failing in the practical examinations and that there was, no point in them doing these examinations.
During the examinations, the patient x-rays were not given to them where as it was provided to all me other candidates.
When they called for the case discussion, the x-rays were given to the external examiner directly without giving the x-ray to the candidates for diagnosis.
In normal circumstances, the candidates are supposed to carry back the surgical instruments after the practical examination along with them, whereas the invigilator asked these candidates to leave the instruments back in the Department, stating that they are bound to fail and they would require these instruments for the next practical examinations.
The said matter was brought by the said candidates to the notice of the Hon''ble Chancellor, Pro-Chancellor and Vice Chancellor in their letters dated 26.5.2011 before the results were declared.
On 9.6.2011, the results were declared and as predicted by the invigilator, both the candidates failed in their practical examination inspire of Dr. Manjunath NM getting 64% in the theory paper and Dr. Sunil S. Nayak getting 60%.
I find something amiss in this whole episode, hence it is requested that these candidates are permitted to have a re-examination in the MDS practical examination in the ends of justice.
You are requested to bring this matter to the notice of His Excellency the Governor. Government of Karnataka and the Hon''ble Chancellor to kindly consider the above request in the circumstances explained above in the interest of these students and to give necessary, instructions to the authorities to conduct re-examination for the MDS Practical Examination.
Thanking you,.
Yours faithfully,
Sd/- (S.A. Ramadass)
In response to the complaint by the Petitioners, the Principal and Dean of the College has sent a letter at Annexure ''U'' dated 1.7.2011 seeking the views of Prof. Subhash K. Rao. one of the internal examiner appointed by the University from Bapuji Dental. College and Hospital Davanagere. Dr. Subhash Rai has sent a reply at Annexure ''V'' dated 8.7.2011 as under:
Subject: Regarding your letter about conducting of PG Examination_in_May. 2011.
Respected Sir,
With due respects, it was very unfortunate for a good candidate to be failed. My observations during the examinations are as follows:
On day one both the candidates had performed their impactions well and their chair side discussions well too For the long cases, Dr. Manjunath was allotted a case, which had no records (for reasons unknown). All the other cases had valid records and investigation reports.
With regard to short cases the students had performed well. For the viva on day 2, the examiners were divided into two groups (one internal and one external) and in my part with Dr. Gyanam (external) the students had performed well.
On deciding the results on day two, one of the externals (Dr. Bhaskar) insisted on failing the two candidates inspite of repeated requests by me to pass both the candidates, Also unfortunately none of the positive aspects of the students were highlighted by the internal examiner of your institution.
Then I brought the issue to your notice to intervene, and you also pleaded helplessness.
Me being the University internal, from a different college was helpless since all the other examiners agreed on the decision.
I personally am shocked that even though the candidate (Dr. Manjunath) has scored the highest in theory examination for the entire RGUHS and was a. student of merit has been failed.
My personal, opinion in this regard is that the candidate should not have undergone this kind of evaluation.
It is clear from the above letter that the Petitioners have done well in the practical examination. On deciding the results on clay two, one of the examiner insisted on failing the Petitioners inspire of repeated requests by him to pass both the candidates. He has further stated that the first Petitioner has secured highest in the theory examination in the entire University and was a student of merit has been failed. He has opined that the Petitioners should not have undergone the kind of evaluation made by the other examiners.
Sri M.V. Seshachala, learned Counsel appearing for the Respondent-college submits that on the basis of the complaint lodged by the Petitioners against Dr. Deepak Pai, the internal examiner, the Chancellor of the Nitte University constituted a committee to hold an enquiry. The committee after holding an enquiry concluded that there could be an element of truth in the representation of the Petitioners. At the end of the enquiry. Dr. Deepak Pai volunteered to resign the post held by him. The report submitted to the Chancellor by the enquiry committee dated 6.7.2011 headed by Dr. B. Rajendra Prasad Principal of the College, Professor Dr. S.M. Sharma, HOD, Oral and Maxillo Facial Surgery and Professor Dr. H.V. Sudhaker Kayak, Registrar is as under:
Report submitted to the Chancellor, Nitte University regarding the Enquiry held on 6.7.2011 with respect to the representation by Dr. Sunil S. Nayak.
Based on the written complaint filed by Dr. Sunil S. Nayak and Dr. Manjunath N.M.. with the Chancellor, Nitte University, regarding the injustice done to them by the internal examiner during their MDS University practical, examinations and their apprehension of failure in their University exam, the Chancellor directed the Principal and Dean of ABSMIDS, HOD of Oral Surgery and the Registrar, Nitte University to hold an enquiry to find the facts.
The Committee comprising of the above persons met. on 6.7.2011 and enquired with Dr. Deepak Pai (the internal examiner), the five points raised by the students and it was established that x-rays were not given to the students before hand and only at the time of viva it was given to the examiners Dr. Pai said that he never shouted at any student at the time of examination and on the contrary said he was very considerate and he was giving clues during viva With regard to the statement about the Candidate to come back after 6 months for the repeat exams. Dr. Pai denied having made that kind of statement After the end of exam, Dr. Pai said he had not called them to the room and never disclosed the result as "fail". In support of his explanation he has handed over a written reply addressed to the Dean, ABSMIDS. He also submitted an unsigned copy of the marks allotted by the 4 examiners on both clays.
Dr. Smitha Bhat, Sr. Lecturer in the department of Oral Surgery and one of the experts during the said exam was also called by the committee. She expressed that, in her opinion except for the viva, other things were above average with respect to both the students, and there was no harassment of the students,
The HOD as well as the Dean, ABSMIDS (of the same specialty) are of the opinion that Dr. Manjunath is certainly academically better since all through 3 years he performed well in all his assignments and tests and deserves the degree. Dr. Sunil is academically next to Dr. Manjunath, but fairly above average quality.
Conclusion.
The committee is of the opinion that there could be an element of truth in the representation made by the students.
Prof. Dr. Deepak Pai at the end of the enquiry volunteered to resign the post he held in ABSM Institute of Dental Sciences.
Sd/-
Sd/-
Sd/-
Pref. Dr. B.Rajendra Prasad Principal and Dean, absmids HOD,
Prof. Dr. S.M. Sharma Oral and Maxillofacial Surgery
Prof. Dr. H.V. SudhakerNayak Registrar.
It is thus clear that the Petitioners are bright students. They have secured more than 60% in the theory examination. It is also clear that their performance in the practical examination has not been assessed properly. It appears that the Petitioners have been deliberately failed in the practical examination.
The Apex Court in Sahiti and Ors. v. Chancellor, Dr. N.T.R. University of Health Sciences and Ors. - AIR 2008 SCW 8194 has held that 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 responsibility of over all administration of academic as well as non-academic affairs. For these purposes, the Act confers both express and implied powers on the Vice Chancellor, 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 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. 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.
In Karthikeyan Gokula Chandran v. Rajiv Gandhi University of Health Sciences and Ors. - W.P. No. 27679/2009 disposed of on 16.9.2009, this Court was considering a similar case of a BDS student, who had failed in. practical examination. The Petitioner gave a complaint to the Chancellor requesting for holding an enquiry and to set right the injustice done to him. The University constituted a committee of three experts to go into the matter. The committee after holding the enquiry opined that fair assessment of performance has not been done by the examiners. On the basis of the said report, the University once again conducted practical examination. However, the marks were not declared as there is no provision for the same. After considering the rival contentions of the parties, the Court held as under:
It is true, normally in. the absence. of statutory provisions, direction for reassessment, is not resoled to. However, in the facts and circumstances of this case, where an enquiry is initiated by the Chancellor and the Enquiry. Committee has reported that the evaluation made was not fair and reassessment is made by an Expert Committee constituted in this regard, the Petitioner cannot be denied of the logical result of the enquiry and the announcement of the result based on the same. If the Petitioner had in fact performed well, in the practical examination but has been met with a raw deal, the injustice done requires to be remedied.
Having regard to the facts and circumstances of the case, this is a tit case where the Vice Chancellor of the Rajiv Gandhi University of Health Sciences has to take a decision as to whether practical examination should, be held afresh in so far as the Petitioners are concerned keeping in mind the observations made in this order. Learned Counsel for the college has furnished a copy of the report of the enquiry held on 6.7:2011 referred to above to Sri S.G. Pandit, learned Counsel appearing for the University. He is directed to forward the same to the. Vice Chancellor of the University along with a copy of this order. The Petitioners are directed to file a detailed representation along with the necessary documents before the Vice Chancellor of the University in this regard. It is hereby clarified that this order has been passed on the peculiar facts and circumstances of the case and that it should not be treated as a precedent for any other case. Writ petitions are disposed of accordingly.
In ''view of the disposal of the writ petition as above, Misc. W. No. 8016/2011 does not survive for consideration. It is accordingly dismissed. No costs.