K.S. Radhakrishnan, C.J.
1. Petitioner Rachna D. Shah, represented by her maternal grand-father, is a person with disabilities entitled to the protection under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity 'the Disabilities Act'). Petitioner was born on 22.11.1992 with 94% hearing impairment. In spite of her disability, she faced life with courage and determination. Physical disabilities did not deter her in exhibiting her talents in arts and music. She passed Prarambhik Exams in vocal and instrumental (Harmonium) with first class from Gandharva Maha Vidhyalay. Petitioner has also various stage performances to her credit. Petitioner has good knowledge of computers and has also achieved skills in skating, art skating, road cycling, stitching, embroidery, handicraft, folk dance, group dance.
2. Petitioner, though having 94% hearing impairment, did not gave-up her studies as well. She cleared 10th standard examination in Gujarati medium, her mother tongue. Petitioner then secured admission for Diploma in Electronics and Communication in Government Polytechnic for Girls at Ahmedabad for the academic year 2008-2009 and in the academic year 2009-2010, petitioner was transferred to Government Polytechnic, Ambawadi, Ahmedabad. Polytechnic Colleges are covered under Centrally Sponsored Scheme envisaged by the Ministry of Human Resource, Government of India in accordance with National Policy on Education, 1986 and the Persons with Disability Act, 1995.
3. Government Polytechnic Colleges conduct Diploma Courses in various subjects. Diploma Course in which petitioner was admitted is a three year course consisting of six semesters. Examination for the students admitted till 2007 was conducted by Technical Examination Board, however, with the establishment of Gujarat Technological University in 2008, examinations are being conducted by the University for students enrolled from 2008 onwards. Examination of the first semester was held in January, 2009, which consisted of six subjects. Petitioner was reported failed in all the six subjects and was given FF Grade. University has provided remedial tests for maximum three subjects. A student can have maximum four backlogs/FF Grade pending, which means that after taking remedial tests in a particular semester if a student is declared as failed in four subjects, he can still appear for the examination of the next semester. Remedial test for the first semester was conducted on 27.3.2009, in which petitioner took remedial test of three subjects, namely - Engineering, Drawing, Mathematics-I and Essentials of Environment and Siesmic Engineering. Petitioner was declared passed in one subject, namely - Essentials of Environment and Siesmic Engineering and was declared failed in Engineering, Drawing and Mathematics-I, resulting in backlog of five subjects with FF Grade. Petitioner appeared in the mid semester test of second semester in which she secured 64.7% marks, but she was not allowed to attend the classes w.e.f 18.4.2009 i.e. after declaration of result of remedial test.
4. Petitioner genuinely felt some error either in the valuation of the answer sheet or in the calculation of marks. Several students including the petitioner who had taken first semester test applied for rechecking. On declaration of result of remedial test, petitioner made a request to the In-charge Registrar, University to allow her to see the answer sheets. Grand-father of the petitioner pleaded to the authorities that if answer sheets are shown to the petitioner she could understand her mistakes and take corrective measures in future, especially taking into consideration the fact that she is a person with disabilities. Petitioner was however, informed that there was no system of re-checking in remedial tests. Petitioner later moved the Right to Information Officer for getting an opportunity to examine her answer sheet. University had to oblige reluctantly and petitioner was shown the answer sheets from a distance and that too only first page of the answer sheets. Petitioner felt some doubts regarding the transparency of the valuation and wanted to examine the entire mark-sheets, which was denied to her, with the result that she had no other alternative but to approach this Court. Petitioner sought a direction to the respondents to supply copies of answer sheets for first semester Diploma in Electronics & Communication of the remedial tests. Petitioner also prayed for quashing Circular dated 15.10.2008 issued by the University for conducting examination of Diploma Engineering in English language, and to direct respondents to conduct examination of Diploma Engineering in both English and Gujarati language. She also sought a direction on the respondents to fix 20% criteria as passing score for the disabled students for the examination of Diploma in Electronics and Communication with effect from Academic Year 2008-2009. Petitioner also sought a direction to the respondents to permit her to study third semester Diploma in Electtronics and Communication commencing from 27.7.2009 and also for consequential reliefs.
5. Learned Single Judge found no reason to grant reliefs prayed and dismissed the writ petition, against which this appeal has been preferred.
6. Mrs. Megha Jani, learned Counsel appearing for the appellant presented her case ably with clarity and precision. She sought permission of this Court to allow petitioner and her grand-father to see the answer sheets to satisfy their conscience. On an oral direction given by this Court, answer sheets were brought before this Court and on perusal of the answer sheets petitioner noticed several glaring mistakes. It was found that some of the answers were not valued and proper marks were not assigned. When this fact was brought to the notice of the University, they immediately summoned the subject experts and re-checked the answer sheets in the presence of the mother of the petitioner and her Advocate, and it was found that for remedial examination of Engineering Drawing, instead of 16 marks, appellant had got 23 marks and therefore, she had got 7 marks more. In the subject of Communication Skill, Semester-I Examination held in January, 2009, as per first assessment appellant got 10 marks, but in the reassessment by subject experts, she got 13.5 marks. Taking into consideration the overall view of the matter, University had decided to constitute a three member Committee consisting of Senior Faculty Members of the concerned subjects. Committee was directed to evaluate all the answer sheets of all the subjects of the appellant. Thus, Senior Faculty Members evaluated the entire answer sheet and found that in two subjects appellant would score more marks whereas in remaining three subjects marks obtained by the appellant are being reduced. Details of the decision of the Committee is stated in paragraph 17 of the counter affidavit dated 3rd August, 2009.
7. University in the detailed affidavit filed, has stated that when appellant had made a grievance regarding improper evaluation of the answer sheets, a ten member Committee consisting of subject expert Shri M.P. Zakhaniya and other officers of the University was constituted to go into the grievances voiced by the appellant but they could not find out mistake and the answer sheets were rechecked by the subject expert of Engineering Drawing and he also endorsed the same view.
8. Apprehension voiced by the petitioner was found true on re-checking when the answer sheets brought to the Court. Faced with the situation, the University issued show cause notices to the members of the Committee calling upon them to explain why they not be debarred in future from the University examinations because of negligence and insincerity. Further it has been stated in the affidavit that University is ready and willing to allow appellant to take second remedial examination and they also expressed their willingness to provide special remedial examination for the appellant and to evaluate all the answer sheets by panel of three teachers, as a special case. Permission was also granted to the appellant to continue her studies for the third semester, pending declaration of second semester remedial examination result or special re-remedial examination result.
9. With regard to the complaint of the appellant that University has committed serious error by changing the medium of examination to English in the mid-way of the course, it was stated in the affidavit that the decision taken by the University is a policy decision and hence students will have to write examination in English only. With regard to the request for lowering the minimum passing marks for persons with disability, it was stated that there is no such stipulation for the professional courses and therefore, request cannot be acceded to.
10. Appellant filed rejoinder to the affidavit filed by respondent University and reiterated her contentions. She raised strong objection to the decision taken by the Committee of three experts in reducing the marks in few subjects.
11. The lackadaisical manner in which the University and their officials conducted remedial examination of Diploma in Electronics and Communication is deplorable and we express our strong displeasure and resentment. Request made by a person with hearing disability to see answer sheets was declined and she had to knock at the doors of the Right to Information Office and later this Court. When direction was given to show the answer sheets, officials showed it from a distance. We have also noticed that since appellant had raised serious grievance against improper valuation of the answer sheet, University had constituted a ten member committee consisting of senior Faculty Members to look into the grievance, but even the Committee was careless and negligent to the task assigned to them and they found no irregularity in the valuation of answer sheets and the marks awarded. The manner in which ten member Committee had examined the grievance of a person with disability of hearing impairment, to say the least, was inhuman and has to be deprecated in the strongest terms. University has now issued show cause notices to them and the same have to be proceeded with, and we are sure law will take its own course. This case exposes the malady of our educational system of valuation of answer sheets and depicts how careless the examiners are at times and even the request of a person with serious disabilities fell in deaf ears.
12. We are also unhappy in the manner in which University has issued the Circular dated 15.10.2008, while 3 year course is underway. We fail to see how a Circular can be issued mid-way directing students studied in Gujarati medium to take examination in English language. When they were admitted to the course, they were expected to take examination either in English or Gujarati language and we fail to see how when the course is on, University can insist that students should take examination only in English language. The qualification for admission to the Diploma in Engineering is 10th standard. Petitioner and several other students had their school education in the Gujarati medium and in such a situation, we fail to see how all of a sudden they can switch over to English medium and take examination in English. True, before the commencement of the course, University can make such a stipulation and not mid-way. University has taken up the stand that such Circular has been issued based on a policy decision. We are of the view that policy decision should not be arbitrary and violative of Article 14 of the Constitution of India. We have therefore, no hesitation to hold that Circular dated 15.10.2008 cannot be made applicable to those students who are undergoing the course and they may be permitted to take examination either in English or Gujarati language. It is so ordered.
13. Appellant has further requested that concession be granted in the matter of fixing standards for passing examination for person with disabilities and according to the appellant, minimum passing marks should be lowered. Reference was made to few orders issued by the Government of Kerala fixing criteria of 20% as passing score for physically disabled students. No such Notification seems to have been issued by the Government of Gujarat. Needless to say that person with disabilities cannot be equated with the fortunate few and special treatment is warranted in the case of persons with disabilities. Chapter V of the Act, namely - The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 deals with subject 'Education'. Section 30(h) of the Act states that appropriate Government shall by notification prepare a comprehensive education scheme which shall make provision for restructuring the curriculum for benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum. This would indicate that some restructuring of the curriculum may be required in the case of persons with hearing impairment and also to facilitate them to take only one language as part of their curriculum. The Government and the University are hereby directed to consider this aspect of the matter.
14. Learned Counsel appearing for the appellant submitted that appellant should be allowed to complete all the semesters and failure of any subject in the second semester shall not stand in appellant's way in completing the second and third semester. Remedial examination, Counsel submitted, would be taken by the appellant in the year 2010. These are the aspects to be examined by the respondent University.
15. We are however, of the view that the decision taken by the Three Member Committee in reducing the marks in remaining three subjects cannot be accepted. Nobody made a request for evaluating those three subjects. University cannot unilaterally do so, especially in the facts and circumstances of the case where no grievance was raised by the appellant with regard to valuation of those three subjects. The marks awarded earlier in those subjects will stand. The Committee has noticed that in two subjects appellant had scored more marks, hence those higher marks would be counted.
16. Learned Counsel for the appellant submitted that appellant should be adequately compensated, not in monetary terms, but by permitting her to complete the course without any hitch and not burdening her further. Appellant being a person with hearing impairment, a more sympathetic attitude is warranted from the respondents which they are bound to accord not as a concession but as a legal obligation. We are therefore, inclined to allow the appeal and set aside judgment of the learned Single Judge and direct the University to pass necessary orders in the light of the directions given by this Court.
Appeal is allowed to the above extent. Consequently, Civil Application stands disposed of.