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PA. NIRANZENA (MINOR) versus STATE OF TAMIL NADU

High Court of Madras

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PA. Niranzena (Minor) v. State of Tamil Nadu - Writ Petition No.21617 of 2002 [2002] RD-TN 498 (19 July 2002)



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




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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