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Suchita Trivedi v. Allahabad University, Allahabad & Another - SPECIAL APPEAL DEFECTIVE No. 344 of 2007  RD-AH 8721 (8 May 2007)
Special Appeal (Defective) No. 344 of 2007
Allahabad University, Allahabad & Anr.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Rajes Kumar, J.
(By Dr. B.S. Chauhan, J.)
In spite of the fact that the delay of three days in filing this Special Appeal has been condoned by this Court vide order dated 14.04.2007, the regular number of the Special Appeal has not been assigned by the Registry.
This Special Appeal has been filed against the impugned judgment and order 21.02.2007 by which the writ petition filed by the appellant seeking direction to the Allahabad University to re-evaluate the answer sheets of Mathematics - 2nd and 3rd papers of B.Sc. 2nd year examinations, has been dismissed.
The facts and circumstances giving rise to this case are that the petitioner-appellant got admission in B.Sc. 2nd year and appeared in the said examination. However, she did not secure good marks in Mathematics 2nd and 3rd papers. She filed an application for scrutiny depositing the required fee and in the meanwhile, she filed Writ Petition No.7075 of 2006 seeking the relief of reevaluation of the answer books of Mathematics 2nd and 3rd papers. The said writ petition was dismissed vide judgment and order dated 06.02.2006 observing that in absence of any statutory provision under the Allahabad University Act and Statute or Ordinance framed there under, such relief cannot be granted. Subsequently, the petitioner-appellant filed Writ Petition No.16995 of 2006 for the same relief and in the said writ petition, the factum of filing the earlier writ petition was disputed by the petitioner-appellant, though objection was taken by the learned counsel appearing for respondent University in this regard. However, while entertaining the writ petition, the learned Single Judge directed the respondent University to produce the answer sheets of the aforesaid two papers before the Court and the petitioner-appellant was permitted to appear in the B.Sc. 3rd year examinations provisionally vide order dated 29.03.2006. Being aggrieved, the respondent University filed Special Appeal No.361 of 2006, which was dismissed by the Court vide order dated 19.04.2006 in view of the fact that the appeal had become infructuous by efflux of time as the examinations of B.Sc. 3rd year had already taken place. When the writ petition came up for hearing, the learned Single Judge dismissed the writ petition taking note of the statement made by the petitioner-appellant that she had never authorised any lawyer to file the writ petition, holding that in absence of any statutory provision for reevaluation of answer sheets, the relief sought by the petitioner-appellant cannot be granted.
The appellant appeared in person and submitted that she has an excellent academic record and secured very good marks in other papers, therefore, her answer sheets of Mathematics 2nd and 3rd papers should be reevaluated and for the same, there is an enabling provision under the Statute/Ordinance of the University.
Shri A.B.L. Gaur, learned Senior Counsel appearing for the respondent University has vehemently opposed the appeal contending that there is no such provision enabling the University for reevaluation, therefore, the relief sought by the appellant cannot be granted. Hence, the appeal is liable to be dismissed.
We have considered the rival submissions made by the learned counsel for the parties and have perused the record.
Without entering into the controversy as to whether the second writ petition was maintainable for the same relief, the learned Single Judge dismissed the petition merely on the ground that in absence of any statutory provision, direction for reevaluation could not be issued.
Chapter XXXI of the Allahabad University Ordinance dealing with the examinations of the students is relevant for determining the controversy involved herein. Clauses 13 and 14 of the said Ordinance read as under:-
"13. The answer-books of a candidate who fails by not more than three marks in any one subject, or in any one paper (in examinations in which minimum pass marks are required in individual papers), or by not more than six marks in the aggregate of all the subjects, shall be scrutinized by the Vice-Chancellor in consultation with the Head of the Department concerned, with a view to check if any question or part of a question as been left unmarked or if a mistake has been made in the addition of marks and to arrange for the rectification of such omission or mistake.
14. If any candidate desires to have his marks checked, he should apply to the Registrar within one month of the publication of the results and pay a fee of Rs. 10, and the Vice-Chancellor shall have the answer-books re-checked and communicate the result to the applicant."
Thus, in view of the above, it is evident that there is no provision for reevaluation. Rechecking is permissible only to the extent as to whether answer of any question remained unmarked or as to whether there is any mistake in totaling the marks obtained by a student on different questions.
The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth & Ors., AIR 1984 SC 1543, wherein the Hon'ble Supreme Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Hon'ble Supreme Court further held that even the policy decision incorporated in the Rules/Regulations providing for rechecking/ verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Hon'ble Supreme Court held as under:
"In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate as to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.
In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution."
This view has been referred to approved, relied upon and reiterated by the Hon'ble Supreme Court in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, J.T. 2004 SC 380 observing as under:
"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and nothing them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks."
In Manish Ujwal & Ors. Vs. Maharishi Dayanand Saraswati University & Ors., (2005) 13 SCC 744, the Hon'ble Supreme Court directed for reevaluation even in absence of any statutory provision in the facts and circumstances of that case. In the said case, in the multiple choice objective type test, six key answers provided by the University were found to be demonstrably wrong and the University failed to explain as to how such error had crept in and who was responsible for such a mistake. The Hon'ble Supreme Court observed that the University and its officers responsible for preparing the key answers have to be very careful and they must take abundant caution in such a case for the reason that it was of paramount importance and in the welfare of the students, as a wrong key answer can result in merit being made a causality. The Courts are always reluctant in enquiring the educational matters and in case of doubt, the Courts always favour the University and never the students. Considering the fact that the key answers itself had been prepared negligently giving wrong answers, the Hon'ble Supreme Court directed for reevaluation in absence of any statutory provision. The said judgment was rendered in the facts and circumstances of that case and it does not lay down a general proposition of law as the Hon'ble Supreme Court itself was satisfied that wrong key answers had been given by the Experts which, not only resulted in miscarriage of justice but the merit list prepared was actually not according to the merit of the students.
In view of the above, the case stands squarely covered by the aforesaid judgments of the Hon'ble Supreme Court and we do not see any ground to interfere in the matter.
Undoubtedly, conduct and holding of examinations in a most appropriate and fair manner is imperative and it is solemn duty of the examining body to provide for fair procedure, rules, regulations, or bye-laws for the same as career of students depends upon the result of the examinations.
A Constitution Bench of the Supreme Court in University of Mysore Vs. C.D. Govinda Rao & Anr., AIR 1965 SC 491, has held that where the decision under challenge has been taken by the Committee of Expert, "normally the Courts should be slow to interfere with the opinion expressed by the experts" unless there are allegations of mala fide against any of the Members of the Expert Committee. The Court further observed as under:-
".....It would normally be wise and safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than Courts........"
Similar view has been taken by the Apex Court in State of Bihar & Anr. Vs. Dr. Asis Kumar Mukherjee, AIR 1975 SC 192; M.S. Gupta etc. Vs. A.K. Gupta & Ors., (1979) 2 SCC 339; Rajendra Prasad Mathur Vs. Karnataka University & Anr., AIR 1986 SC 1448; Dr. Umakant Vs. Dr. Bhikha Lal Jain & Ors., AIR 1991 SC 2272; The Chancellor & Anr. Vs. Dr. Bijay Nanda Kar & Ors., (1994) 1 SCC 169; State of Orissa & Ors. Vs. Prajnaparamita Samanta & Ors., (1996) 7 SCC 106; Chairman, J & K State Board of Education Vs. Fayaz Ahmed, (2000) 3 SCC 59; and The Dental Council of India Vs. Subharti K.K.B. Charitable Trust & Anr., AIR 2001 SC 2151.
Thus, it is settled law that when a decision is taken by the Committee of Expert having high academic qualifications and long experience in the specialised field, the Courts should not normally probe the matters unless there are compelling circumstances for doing so, i.e. allegations of mala fides against the members of the Expert Committee, rejection of application on extraneous consideration etc.
In the instant case, there is no allegation of mala fide against any person nor any person of the University has been impleaded by name and in absence of any statutory provision for reevaluation, the direction for reevaluation cannot be issued.
Be that as it may, on the insistence of the appellant in person and considering that she has a very good academic record in past and has secured good marks in other papers, on our request Mr. A.B.L. Gaur, learned Senior Counsel produced the answers sheets of Mathematics Papers 2nd and 3rd before us. The appellant also handed over certain books and question papers to us in the Court. Shri Gaur was kind enough to assist the Court to the extent that even in absence of any statutory provision and without specific direction of the Court, the copies can be examined only to find out as to whether the marking had properly been done or not. This gesture was shown by Shri A.B.L. Gaur only to do complete justice with the appellant and to satisfy the Court. He did not raise the technical issue regarding the maintainability of successive writ petition for the same cause of action. We requested Shri Gaur to satisfy himself with the help and assistance of the University teachers of the Mathematics Department as to whether there could be any substance in the allegations/averments made by the appellant that her answer sheets had not been evaluated properly. Shri Gaur has produced before us, two letters dated 04.05.2007 - one by Shri Brajesh Kumar Sharma, Lecturer; and the other by Dr. Pramod Kumar Singh, Reader both in Department of Mathematics of the Allahabad University wherein it has been submitted that the copies of the appellant have been examined properly and marks assigned in her answer books are proper.
We express our gratitude to Shri A.B.L. Gaur, learned Senior Counsel who has been kind enough to render all assistance to the Court and took pains to get the copies examined even in absence of any statutory requirement.
In view of the above, we do not find any reason to interfere with the order impugned. The appeal lacks merit and is accordingly dismissed.
The answer sheets produced by Shri A.B.L. Gaur, learned Senior Advocate, be returned to him to handover the same to the University. However, the letters of Shri Brajesh Kumar Sharma, Lecturer, and Dr. Pramod Kumar Singh, Reader, in Department of Mathematics of the Allahabad University, dated 04.05.2007 be kept on record.
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