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Dr. B.R. Sarangi, J—The petitioner, who was a student in bachelor in Dental Surgery of S.C.B. Dental College and Hospital, Cuttack under Utkal University has filed this application seeking for a direction to the opposite parties to re-evaluate her answer script in subjects Orthodontics Paper-B and Oral Maxillofacial Surgery Papers-A and B of BDS Final Year Examination, 2012.
The factual aspects succinctly described are that the petitioner by following due procedure of selection was admitted to the BDS Course under S.C.B. Dental College and Hospital, Cuttack and appeared the BDS Final Year Examination, 2012 with Roll No. 408C006 and Registration No. 42056/2008. Accordingly, she had been issued with an admit card vide Annexure-1. After the result was published, she was surprised to know that she had secured 987 marks out of 1600 marks and secured less marks in subjects Orthodontics Paper-B and Oral Maxillofacial Surgery Paper-A and B of BDS Final Year Examination, 2012 than her expectation. Therefore, she deposited requisite fees for re-addition/revaluation/rechecking of marks and for supply of xerox copies of the answer sheets in the aforesaid subjects. The university authorities having acknowledged the fees did not take any steps for revaluation of answer sheets as per the provisions contained in the BDS Course Regulation framed by the Dental Council of India, which was approved by the Central Government under Dental Act, 1948 as published in the Gazette Notification dated 10.09.2007. Against such inaction of the authorities, the petitioner has filed this application.
Mr. P.R. Pattnaik, learned counsel for the petitioner strenuously urged that in the BDS Regulation published vide Gazette Notification dated 10.09.2007 framed by the Dental Council of India and approved by the Central Government under the Dental Act, 1948 provision has been made for reevaluation. Therefore, the petitioner sought for revaluation of her answer sheets in subjects Orthodontics Paper-B and Oral Maxillofacial Surgery Papers-A and B of BDS Final Year Examination, 2012 for which she has deposited requisite fees and even though such fees have been acknowledged by the authorities, reevaluation which is permissible under law has not been made. Even though request was made vide Annexure-5 but the Controller of Examination did not take any steps on that score. It is stated that due to such arbitrary and unreasonable action of the authority, finding no other alternative, the petitioner knocked at the door of temple of justice. In order to substantiate his case, he has relied upon the judgment in Kalyani Mathivanan Vs. K.V. Jeyaraj and Others(2015) 3 AD 238 : AIR 2015 SC 1875 : (2015) LabIC 1899 : (2015) 1 LLN 545 : (2015) 3 SCALE 369 : (2015) 4 SCJ 400 : (2015) 2 SCT 676 : (2015) 2 SLJ 107 .
Per contra, Mr. Dayananda Mohapatra, learned counsel for the University while admitting the factual position states that the petitioner has failed in subjects Orthodontics Paper-B and Oral Maxillofacial Surgery Papers-A and B of BDS Final Year Examination, 2012 and there is no provision for reevaluation under the university Act and regulation framed thereunder. It is urged that though relief has been claimed under the regulation framed by the Dental Council referred to in Annexure-4, neither the Dental Council nor the Government of India has been made party to the proceeding. Therefore, he seeks for dismissal of the writ petition for non-joinder of proper parties. It is further urged that the provisions of reevaluation of answer papers in all the years of the subjects in BDS course may be permissible by the university on an application and remittance of prescribed fee. Inter se reading of both the provisions would reveal that the regulation makes it mandatory using the word ''shall'' in respect of re-totaling whereas the word ''may'' in case of reevaluation which would be dependent upon the provision of the University, if any, available under its Act, Statute and Regulations. The university does not allow any re-evaluation nor have any provision for re-evaluation under any Act, statute and Regulation, be it a technical course or a general course. In absence of any such provision, any prayer made for re-evaluation cannot be sustained in the eye of law. In order to substantiate his case, he has relied upon the judgments in Labour Commissioner, Madhya Pradesh Vs. Burhanpur Tapti Mills and Others, AIR 1964 SC 1687 : (1964) 9 FLR 83 : (1964) 2 LLJ 426 : (1964) 7 SCR 484 , M/S. Mahaluxmi Rice Mills and Others Vs. State of U.P. and Others, (1998) 6 AD 301 : AIR 1999 SC 147 : (1998) 5 JT 603 : (1998) 4 SCALE 594 : (1998) 6 SCC 590 : (1998) 1 SCR 8 Supp : (1999) 1 UJ 118 : (1998) AIRSCW 3504 : (1998) 6 Supreme 477 and T Taraben Ramanlal Modi Vs. Jashbhai Shankerbhai Bin Talsibhai and Others, AIR 1980 Guj 126 : (1980) GLR 335 Full Bench.
On the basis of the facts pleaded above, it is to be considered whether the University is obliged under the law to re-evaluate the answer sheets of the BDS course on the basis of the provisions contained in the regulation, which has been framed under Dentists Act 1948. Admittedly, the petitioner had appeared in the BDS Final Year Examination, 2012 being a student of S.C.B. Dental College and Hospital, Cuttack under Utkal University and failed in subjects Orthodontics Paper-B and Oral Maxillofacial Surgery Papers-A and B of the said Examination and she applied for re-addition/rechecking/re-evaluation of answer sheets by depositing requisite fees, which was acknowledged by the authority. The University authority having not re-evaluated the answer sheets, the petitioner has filed this application seeking for a direction for re-evaluation in view of the Regulation framed by the Dental Council of India, which was approved by the Central Government under Dentists Act, 1948, which is also annexed to the writ petition vide Annexure-4. For better appreciation, relevant portion is quoted below:
"Re-evaluation: The objective of re-evaluation is to ensure that the student receives a fair evaluation in the university examination and to minimise human error and extenuating circumstances. There shall be two mechanisms for this purpose.
Re-totalling: The University on application and remittance of a stipulated fee to be prescribed by the university, shall permit a recounting or opportunity to recount the marks received for various questions in an answer paper/papers for theory of all subjects for which the candidate has appeared in the university examination. Any error in addition of the marks awarded if identified should be suitably rectified.
Re-evaluation: Re-evaluation of theory papers in all years of study of the BDS course may be permissible by the university on application and remittance of a prescribed fee. Such answer scripts shall be re-evaluated by not less than two duly qualified examiners and the average obtained shall be awarded to the candidate and the result accordingly reconsidered. However in those universities where double evaluation provision exists, thus provision of re-evaluation will not be applicable.
On perusal of the above mentioned provisions, it appears that the objective of re-evaluation is to ensure that the student receives a fair evaluation in the university examination and to minimize human error and extenuating circumstances and two mechanisms have been prescribed for the purpose. Under sub-clause-1 regarding re-totalling, it is provided that the university on application and remittance of a stipulated fee to be prescribed by the university, shall permit a recounting or opportunity to recount the marks received for various questions in an answer paper/papers for theory of all subjects for which the candidate has appeared in the university examination and any error in addition of the marks awarded if identified should be suitably rectified. Under sub clause-2 it is stated that re-evaluation of theory papers in all years of study of the BDS course may be permissible by the university on application and remittance of a prescribed fee. Such answer scripts shall be re-evaluated by not less than two duly qualified examiners and the average obtained shall be awarded to the candidate and the result accordingly reconsidered. However, in those universities where double evaluation provision exists, this provision of a re-evaluation will not be applicable.
In view of the express provisions of the Central Act, re-evaluation of answer sheets of BDS course is permissible under the law. The thrust of contention of Mr. Dayananda Mohapatra, learned counsel for the University is that under sub clause-2 by using the word ''may'' discretion lies with the university authority whether they will re-evaluate the answer sheets or not. It cannot said to be a mandate to the university authority to go for any re-evaluation of answer sheet as claimed by the students. Therefore, in absence of any mandate and in view of use of word ''may'', the university authority is justified in not re-evaluating the answer sheets of the petitioner as claimed by her. It is stated that neither the university Act nor Regulation of university 1st statute, 1990 nor any regulations framed under the act empowers the university authority to go for re-evaluation, save and except, it only permits the university to rectify and revaluation of marks for clerical error committed at the time of evaluation of answer sheets.
Admittedly, the BDS Regulation has been framed under the provisions of law in Dentists Act, 1948 enacted by the Parliament and such enactment is covered under List-I of the Union List under Seventh Schedule of Article 246 of the Constitution of India. List-III-Concurrent List, Entry-25, deals with education including technical education, medical education and universities subject to provision of entries 63, 64, 65 and 66 of List-I, vocational and technical training of labour. Therefore, both the Parliament as well as State Legislature have got jurisdiction to frame law with regard to education including technical education, medical education and universities law subject to provisions of entries 63, 64, 65 and 66 of List-I vocational and technical training of labour. The Parliament having enacted the Dentists Act under the provisions of the Entry-66 of List-I, the same cannot be superseded by the State Act such as the University Act and rules framed thereunder. Therefore, if the re-evaluation provision has been made on the basis of Central Act by framing a regulation, the university authority even though framed their rules and regulations, the same cannot supersede the Central Legislature in any manner whatsoever.
In University of Delhi Vs. Raj Singh and others, AIR 1995 SC 336 : (1994) 6 JT 1 : (1994) 4 SCALE 10 : (1994) 3 SCC 516 Supp : (1994) 3 SCR 217 Supp : (1994) 3 SLJ 116 : (1994) 2 UJ 753 , the apex Court considering the entry 66 of Union List has held that the University Grants Commission has jurisdiction to concurrent and mandates for standards of higher education. The Regulation of 1991 made under Section 26 of the U.G.C. Act 1956 regarding qualification of teachers was held to be valid. Applying the said ratio to the present context the provisions made under the Dentists Act to frame regulation basing upon which re-evaluation is permissible so far as BDS course is concerned, unless the same is modified or clarified or amended by suitable law made by the Parliament, so long this provision is in force, the rules and regulation under the University Act by the State Legislature cannot have any over-riding effect on the same.
In Kalyani Mathivanan (supra), the apex Court held that to the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative in view of the provisions contained in Article 254 of the Constitution of India. Applying the said principle to the present context, if the State Legislature has been made in conflict with the Central Legislation including the sub-ordinate legislation made by the Central Legislation which was repugnant to the Central Legislation, the same would be inoperative.
The emphasis laid by the learned counsel for the opposite party-university on sub clause-2 of the Central Regulation that re-evaluation is only optional one and it cannot be construed as ''shall'' as mentioned in sub clause-1 of the said regulation. So far as sub clause (1) is concerned, it is mandatory as the word ''shall'' is used permitting recounting or opportunity to recount the marks received for various questions in an answer paper/papers for theory of all subjects for which the candidate has appeared in the university examination. But in sub clause 2 of reevaluation by using the word ''may'' it is stated that discretion lies with the university authority whether they will go for reevaluation or not. Therefore, reevaluation has not been done in case of the petitioner. Such contention is not acceptable in view of the fact that admittedly the BDS course regulation is a sub-ordinate legislation under Dentist Act, 1948 enacted by the Parliament. So State Legislation cannot be repugnant to the Central Act including the sub-ordinate legislation and as such the central Act has got over ride effect over the State Legislation including sub-ordinate act, rules framed thereunder. The use of word ''may'' in sub clause 2 cannot give power to the university authority not to go for re-evaluation. In that view of the matter, this Court is of the considered opinion that when the petitioner deposited fees for reevaluation of answer sheets in consonance with the Central Act and sub-ordinate rules framed under, the university authority should have adhered to the same in consonance with the provisions of law and reevaluated the same so far as BDS course is concerned. Reference has been made to Labour Commissioner, Mahaluxmi Rice Mills and others and Taraben Ramanlal Modi mentioned (supra) by learned counsel for the opposite party-university that use of word ''may'' or ''shall'' has to be construed taking in to account the meaning attached to the provision itself and circumstances in which the same is used. This proposition laid down by the apex Court as well as the Full Bench of the Gujarat High Court is well settled. But in the present context the applicability of the said judgments cannot be taken into consideration when the Constitution itself provides under Articles 246 & 254 that to the extent the State Legislature is in conflict with the Central Legislation given effect to the Central Act, the same shall be repugnant to the same. In my considered opinion, the university authorities should have reevaluated the answer sheets of the candidate for which they have acknowledged requisite fees and by not doing so, they have violated the condition of the Central Regulation, which is not permissible.
In course of hearing, Mr. Dayananda Mohapatra, learned counsel for the opposite party-university stated that in the subsequent year the petitioner has appeared in the examination and she has passed the same and received the certificate. Therefore, any action now taken will amount to futile exercise and would be purely an academic one.
Mr. P.R. Pattaik, learned counsel for the petitioner stated that even though the petitioner has passed the said examination in subsequent year, in the event reevaluation is made for the year 2012 and if it appears that she has passed the said examination, then she cannot loose one year of her career for the same. Therefore, in order to set the matter at rest, this Court should direct the authorities for reevaluation of the answer sheets of the petitioner in consonance with the BDS regulation mentioned in Annexure-4.
Considering the contention raised by both the learned counsel appearing for the parties, it appears that the petitioner having passed the examination in 2013, no useful purpose can be served if re-evaluation would be made in subjects Orthodontics Paper-B and Oral Maxillofacial Surgery Papers-A and B of BDS Final Year Examination, 2012 for which the university has acknowledged the fees. Therefore, this Court is not inclined to issue any direction for reevaluation of marks so far as it relates to the petitioner in Final Year BDS Examination, 2012 as she has already passed the said examination in the year 2013.
Accordingly, the writ petition stands disposed of. However, there is no order to costs.