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2020 Supreme(Ker) 682
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANU SIVARAMAN, J.
Dr. Raymond George - Petitioner
Versus
Union of India, Represented By Its Secretary, Ministry of Health and Family Welfare & Ors. - Respondents
W.P.(C) No. 29792 of 2019 (Y)
Decided On : 26-02-2020
For the Petitioner: Sri. Abraham Vakkanal (SR.), Smt. Vineetha Susan Thomas, Smt. Akhila B.
For the Respondent: Shri. P. Vijayakumar, ASG of India, Sri. S. Sanal Kumar, Smt. Bhavana Velayudhan, Smt. T.J. Seema.
IMPORTANT POINTS
The mere existence of alternate remedies or alternate Forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its jurisdiction. It was therefore found that the non consideration of the issue by the High Court was not proper.
Headnote:
Constitution of India- Article 226 – Denial of reevaluation or rechecking/re-totaling of answer sheets in theory paper of FE Exam, 2019- Reevaluation even in the absence of any provision for the same-Held:-Prayer for reevaluation unless there is a specific provision permitting the same would not be justified-Direction for reevaluation would be unjustified in the absence of any specific provision enabling such a course of action.
Statement of facts:
The petitioner had appeared for the Exit Exams in the year 2017 and 2018 also and had failed to qualify. In the year 2018 the failure in the theory paper was for one mark. It is stated that the Fellowship Exit Exam of 2019 is his 3rd attempt and it is crucial to the future career of the petitioner. He has obtained only 45 marks in one theory paper and did not obtain the minimum required marks for a pass. The petitioner submitted representations with a request to reevaluate his answer scripts but no favourable replies were received.
Finding of the court:
The ambit of the jurisdiction of this Court cannot be stretched to limits which are not contemplated and this Court would have to leave questions with regard to evaluation of answer scripts in highly technical subjects to the experts who have been entrusted with such tasks. In the absence of any specific allegation as to mala fides or any details as to the discrepancies contained in the evaluation by the experts-Not justified in directing any such reevaluation which is specifically barred by Ext.P1.
Result: Writ petition dismissed.
JUDGMENT :
This writ petition is filed seeking the following prayers:
“i. Issue a writ of certiorari or other appropriate writ or direction, quashing or declaring as invalid, clauses 2.21 and 7.2 in Exhibit P1 to the extend it ousted the jurisdiction of this Hon'ble Court under Art 226 of the Constitution and also to the extend that it denied reevaluation or rechecking/re-totaling of answer sheets in theory paper of FE Exam, 2019;
ii. Issue a writ of mandamus or other appropriate writ or direction, commanding the respondents to reevaluate the answer sheet of the petitioner (Roll No.1914781008) of the Theory paper of FE Exam, 2019 and announce results immediately within a time frame;
iii. To declare that on the facts of this case, the petitioner is entitled to re-evaluate his answer sheets of the Theory paper of FE Exam, 2019.”
2. Heard the learned senior counsel appearing for the petitioner and Sri. P. Vijayakumar, learned Assistant Solicitor General appearing for the 1st respondent as well as Sri. S. Sanal Kumar, learned counsel appearing for the 2nd respondent.
3. The learned senior counsel for the petitioner submits that the petitioner has completed MD (Physician) and DNB (OBGY) and he is presently working as Junior Consultant at Rajagiri Hospital, Chunangamvely, Aluva. He had appeared for the Fellowship Exit Exam of 2019 in High Risk Pregnancy and Perinatology conducted by the 2nd respondent in August/September 2019. However, he failed in the theory paper. It is stated that due to the total ban provided in the Information Bulletin for Fellowship Exit Exam, 2019, as regards reevaluation or rechecking of the answer sheets of the exam, the petitioner is before this Court. It is stated that Fellowship Exams are conducted every year by the 2nd respondent. The Information Bulletin in respect of the year 2019 is produced as Ext.P1. The petitioner submitted Ext.P2 application along with all required documents. It is stated that the petitioner had appeared for the Exit Exams in the year 2017 and 2018 also and had failed to qualify. In the year 2018 the failure in the theory paper was for one mark. It is stated that the Fellowship Exit Exam of 2019 is his 3rd attempt and it is crucial to the future career of the petitioner. He has obtained only 45 marks in one theory paper and did not obtain the minimum required marks for a pass. The petitioner submitted representations with a request to reevaluate his answer scripts but no favourable replies were received.
4. The learned senior counsel relies on the judgments of the Apex Court in Maharashtra Chess Association v. Union of India [Civil Appeal No.5654/2019 dated 29.7.2019] where the expansive jurisdiction of this Court under Article 226 is considered. The learned senior counsel appearing for the petitioner would contend that in view of the discretionary jurisdiction available to this Court under Article 226, there must be a direction to the respondents to reevaluate the answer scripts of the petitioner. It is stated that pursuant to an interim order dated 11.12.2019, the 2nd respondent had been directed to issue photocopies of the answer sheets of the petitioner, after collecting charges, if any. It is stated by the learned counsel for the petitioner that on receipt of the photocopies of the answer sheets, the petitioner is confident that if any expert in the field of High Risk Pregnancy and Perinatology evaluates the petitioner's answer sheets, he is sure to score a minimum of 60% marks in theory. He, therefore has given details of two competent Doctors who could be directed by this Court to reevaluate the answer scripts of the petitioner.
5. A statement has been filed by the 2nd respondent, wherein it is stated that there is no provision for reevaluation of answer scripts as provided in Ext.P1. Moreover, clause 7.2 of Ext.P1 specifically provides that there will be no reevaluation or re-checking of answer sheets or re-totalling of marks. It is stated that the Fellowship Exit Examinations ar
