Lucknow University vs Sanjay Sharma and another

K.C. Bhargava, J.—This special appeal has been filed against the judgment dated 611994 passed by a single Judge of this Court allowing the writ petition and directing the appellant to revaluate or get revaluated the petitioner''s Mathematics answer books. Brief facts leading to the present controversy are narrated as under :

The petitioner has alleged that he was a regular student of B. Sc. for the academic session 199093 in the B.S.N.V. Degree College, Lucknow under the Lucknow University. He passed B.Sc. first year and second year examinations from the University. In the third year examination of B.Sc. the petitioner had an aggregate of 40 per cent marks and 29 per cent marks in Mathematics. It is further alleged that the academic career of the petitioner has all along been very good. In I.C.S.E. (Intermediate) he passed the examination with an aggregate of 61 per cent (with 69 per cent in mathematics) and in I.C.S E. (Tenth) he got 58 per cent aggregate marks (with 56 per cent in mathematics). The petitioner is serving in the National Cadet Corps since 1988 in the Senior Division with ''A'' certificate examination in Army Wing and ''B'' Certificate examination in Senior Division, Air Wing and he will appear in March, 1994 for the ''C'' Certificate examination of the Air Wing. The petitioner has completed the National Services Examination (NSS) Training of two years; from 1991 to 1993, He is also doing a Computer Course from the National Institute of Information and Technology (NIIT), Lucknow and passed the first semester examination in the year 1991 with 80 per cent marks and second semester examination in 1992 with 75 per cent marks. He was also selected for the three years'' course of ''Master of Computer Applications (MCA) and two years'' course of Post Graduate Diploma in Business Management from the Institute of Management Studies, Ghaziabad (now recognised as M.B.A. Degree of Meerut University) and is currently pursuing the latter course on provisional admission. The petitioner has also passed the written pan of the National Defence Academy (N.D.A.) conducted by the U.P.S.C. on 21101990. He has also passed the written part of Combined Defence Services Examination (CDSE) conducted by U.P.S C. in October, 1992, and also passed the Combined Defence Services Examination (C.D.S.E.) conducted by U.P.S.C. in May, 1993 and now he has been finally selected for the Indian Air Force, Indian Army and the Indian Navy. The petitioner was required to submit his B.Sc. marksheet/Degree by 15th December, 1993 failing which his candidature would stand cancelled. This date was later on extended to 31st December, 1993. Thereafter he was granted time till 10th January, 1994 to submit the above marksheet. As the petitioner received poor marks in mathematics in B.Sc. III year, he applied for revaluation. The Principal Secretary to the Governor of Uttar Pradesh forwarded the representation of the petitioner dated 23111993 to the Vice Chancellor, Lucknow University on 24111993 with a direction to get the rechecking of the answer books of the mathematic papers of B.Sc. III year of the petitioner. The petitioner again represented to the Chancellor on 20121993 intimating that the direction contained in the letter dated 24111993 for rechecking the answer books of mathematics of the petitioner has not been complied with. The petitioner also filled the forms for scrutiny of answer books of B.Sc. III year with respect to I, II and III paper of mathematics, on 21121993. The petitioner, thereafter, enquired from the Registrar of the University on 311994 and he was informed that after scrutiny there has been no change in the marks. The petitioner, thereafter again applied to the Vice Chancellor for revaluation of the answer books of mathematics of B.Sc. III year of the petitioner. No action was taken by the Vice Chancellor on the representation of the petitioner and no reason was intimated for not revaluating the answer books. The Executive Council of the University on 24th April, 1990 in supersession of the earlier ordinance, by a resolution, approved Statute No. 2206 regarding back paper facility. This Statute came into force with effect from the examinations of 1990. With the introduction of back paper facility the facility of revaluation and of supplementary examination was withdrawn. It is alleged that the withdrawal of the revaluation facility is arbitrary and unfair. It is further alleged that the facility of revaluation of the answer books has been withdrawn by the University which means that the students will have to wait for one year on account of improper valuation of his answer books by the University. The petitioner has no other alternative and efficacious remedy, hence the writ petition was filed. No counter affidavit in this cafe was filed by the opposite partyUniversity. The writ petition which was filed on 511994 was decided by the learned Single Judge on 611994.

After perusing the file learned single Judge allowed the writ petition and directed for revaluation of the answer books of mathematics III year of B.Sc. of the petitioner. Aggrieved against this order the present special appeal has been filed by the Lucknow University.

We have heard the learned counsel for the appellantUniversity and the learned counsel for the petitioner. Sri Umesh Chandra, learned counsel for the appellant has argued that in 1988 back paper facility was introduced and the facility of revaluation of answer books was abolished. Thereafter in the 40th amendment in the Statute No. 22.06 the back paper facility was reiterated. Even by 25th amendment, Statute 20.06 was introduced and the facility of revaluation was withdrawn which was reiterated by 40th amendment as stated above. On 24th April, 1990 the above ordinance was confirmed by the Executive Council of the University. It has come into force from the examinations of 1990. According to the learned counsel this means that the facility of revaluation has been withdrawn by the University from 1990. According to him when the facility of revaluation had already been withdrawn with effect from 1990, the petitioner in the present case had no right to apply for revaluation of the answer books and the University was not bound to revaluate the answer books of the petitioner. According to the learned counsel there is no right vested in the petitioner for revaluation of the answer books. It is a matter of policy and it is a facility which was granted by the University in the previous years to its students which was withdrawn by the University from the academic session of 1990.

On the other hand learned counsel for the petitioner has argued that the facility of revaluation is a substantive right of the petitioner and it is covered by the words "conduct of examination" occurring in Section 51 (m) of the State Universities Act. According to the learned counsel the back paper facility and the facility of revaluation are not the same and they operate in different fields and one is not in lieu of another.

Learned counsel for the University has argued that it is not a substantive right but merely a facility which has been provided to the students by the University by means of Statute or Ordinance and the same can be withdrawn. Learned counsel for the University has placed reliance on the case of Ram Bilas v. University of Allahabad (1982 All LJ 1132). It is a Division Bench case which was decided on 941982. In that case the petitioner challenged the validity of the results which were declared by the University upon the revaluation of the answer books of the papers relating to various examinations. The contention of the learned counsel for the petitioner in that case was that the right to apply for revaluation was a substantive right which vested in the examinee for the paper of which the examination is held. Dealing with this argument the Division Bench held as under :

"In the first place we find no warrant for holding that there is any kind of vested right in regard to the right to apply for revaluation in the sense that it accrues from the date of examination." ......... "In the second place assuming that the privilege to apply for revaluation is some kind of right in a broader sense, in our opinion, the norms or the standards or the method of revaluation and redetermination of results can by no means be regarded as matter relating to a substantive right. These are matters pertaining to procedure."

In para 8 it was further held as under :

"Thus, in either view of the matter, the submission that some kind of substantive rights of the petitioners have been affected by the change in the Ordinance has to be rejected."

In that case it was also held that the right to revaluation arises only after declaration of the results. It was further held that the Ordinance which was in operation on the date of the examination will govern the particular case. The petitions were dismissed on this ground. This is an authority on the point that revaluation is not a substantive right and it arises only after the examinations are over. The right of revaluation can only be exercised after the results of the examination are declared and not before that.

Learned counsel for the University has argued that in the case of Jitendra Pratap Shahi v. The Registrar, Allahabad University, Allahabad and others (1985 UPLBEC 569) the above mentioned Division Bench case Ram Bilas v. University of Allahabad (supra) was not referred to in this case and a different view appears to have been taken which was not necessary in that case. According to the learned counsel the question whether the right of revaluation is a substantive right or not did no arise for consideration in that case. A perusal of this case will reveal that there were four contentions in that case, namely: (i) that abolition of revaluation violated Article 14 of the Constitution of India, inasmuch as, the revaluation system has been continuing in all other Faculties of Allahabad University ; (ii) that the abolition of revaluation violated principles of natural justice as no opportunity of being heard was given to the petitioners ; (iii) that the abolition is irrational and inexpedient, as the system of revaluation proved to be very useful and efficacious ; and (iv) that the Executive Council travelled beyond its jurisdiction in having abolished the revaluation system as the draft proposed by the Academic Council recommending the abolition of revaluation from the examination of 1983, was amended without its approval in violation of subsection (4) of Section 52 of the Uttar Pradesh Universities Act, 1973 (for short the Act of 1973). We find that the right of revaluation as, a substantive right was not pressed before the court and the court was not asked upon to decide this question. Moreover in para 4 of this judgment it has been observed by the Division Bench as under :

"Moreover, it is a matter of policy whether a given system relating to conduct of examinations is to be retained or abolished and the petitioners cannot compel the Executive Council to retain the provision for revaluation, howsoever useful, beneficial or efficacious it may be."

In the same para onwards it has been observed that the petitioners had no right to force the Executive Council to retain the system of revaluation. This observation of the Division Bench clearly goes to show that the right of revaluation is not a substantive right but it is merely a concession given by the University to the students and the students have no right to force the Executive Council to retain a particular system of revaluation or any other system.

Learned counsel for the respondents has placed reliance on para 7 of this judgment. Only the relevant portion of this para may be quoted for the sake of convenience :

"Evaluation of the answer books and revaluation both are the activities which are covered by the ambit of the expression "conduct or standard of examination" occurring in clause (b) of the proviso. When evaluation is undisputedly an activity covered by conduct of examinations, we fail to understand why revaluation is not the part of conduct of examinations. Almost similar observation was made in para 15 by the Supreme Court in AIR 1984 SC 1543 (supra)."

When the question as to whether revaluation is a substantive right of student or not was not in issue in that case it cannot be said that the Division Bench has decided that point. It can at the most be said to be an obiter dicta because no discussion has been made in that case on this point and only a casual finding has been given on the question that revaluation is covered by "conduct or standard of examination". Support has also been sought to be derived from the observations made in para 15 by the Apex Court in AIR 1984 SC 1543. Thus from a reading of this authority we find that the matter which required consideration of the court was entirely different and the matter which is in issue in the present case was not required to be considered and decided by the Division Bench. Therefore this observation contained in para 7 of the judgment will not give any help to the respondentpetitioner. Moreover the case of Ram Bilas v. University of Allahabad (supra) was also not considered in the above judgment.

Now we take up the Supreme Court decision, support of which has been taken in the above judgment. It is Maharashtra Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumar Sheth etc. (AIR 1984 SC 1543). In that case the High Court held that clause 3 of Regulation 104 which provided that no per on shall be entited to disclosure or inspection of answer books or other documents as the same are treated to be most confidential, is ultra vires being in excess of the regulation making power of the Board. This clause was struck down to that extent. This was decided in one bunch of writ petitions. In the second group of writ petitions it was held that clause 1 of Regulation 104 that no revaluation of the answer books or supplement shall be done is ultra vires of the regulationmaking power of the Board. The matter went up to the Supreme Court. In that case Section 36 (2) (f) was considered which dealt with the arrangement for conduct of final examinations by the Board and for declaration of results. Regulation 104 (clauses 1 to 3) provided that verification be allowed for the purpose of scrutinising where there is any mistake, for each question in that subject. It subsequently said that no revaluation of the answer book or supplement shall be done. In subclause (3) it was specifically mentioned that no person shall be entitled to disclosure or inspection of answer books or other documents as the same are treated to be most confidential. On these facts the Hon''ble Supreme Court came to the conclusion that there is a comprehensive provision in the regulation and that a complete procedure for conduct of the examinations has also been given in the regulations. In the present case it has not been argued by the learned counsel for the appellant that provision regarding complete procedure for conduct of examinations has not been provided in the Regulation or the Statute and the same discriminates against the different examinees. In the above noted case the Hon''ble Supreme Court has come to the finding that these provisions in the Act provide enough to cover the prescription of the examination based on the evaluation of the answers of the candidates who have appeared for the examinations, as well as the laying down of the restrictive provisions relating to verification of marks, prohibition against disclosure and inspection of answer books and denial of any right or claim for evaluation. It was further held as under :

"We fail to see how it can be said that these are not matters pertaining to the conduct of the final examination and the publication of the results of such examination."

In the same para 15 of the above judgment the Hon''ble Supreme Court held as under :

���.it was perfectly within the competence of the Board, rather it was its plain duty to apply its mind and decide as matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are undoubtedly matters which have an intimate nexus with the objects and purposes of the enactment and are, therefore, within the ambit of the general power to make regulations......."

Commenting on the judgment of the High Court in para 16 the Hon''ble Supreme Court has said that the Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulationmaking body. 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 regulationmaking 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. It has also been held in para 20 of the above decision by the Apex court that:

"The right of verification conferred by cl. (1) is subject to the limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and the further restriction imposed by cl. (3) prohibiting disclosure or inspection of the answer books."...... "There is no scope at all for invoking any such implied power or imputing to the regulationmaking authority an intention to confer such power by implication when there is an express provision contained in the very same regulation (clause (3)) which clearly manifests the contrary intention and states in categorical terms that there shall be no claim or entitlement for disclosure or inspection of the answer books."

The apex court then considered the question as to whether prohibition about revaluation of the answer books is valid or not. On this point the apex Court held as under :

"While discussing the scope of the said regulation, we have pointed out that its purpose and effect is only to confer a suo moto power on the Board to correct errors in cases where irregularities like malpractices, misconduct, frud etc. are found out and it does not confer any right on the examinees to deemand any correction of the results. In the scheme of the regulations after the publication of the results, the only right which the examinees have in relation to this matter is to ask for a verification of the results under cl. (1) of Regn. 104 and the scope of such verification is subject to the limitations imposed in the said clause as well as in cl. (3) of the very same regulation."

In para 27 of the above decision the Hon''ble Supreme Court has further held :

"Further, it is in the public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process.

The apex Court, in para 28 of the above decision further held as under:

"The inevitable consequence would be that there will be no certainty at all regarding the results of the competitive examination for an indefinite period of time until all such requests have been complied with and the results of the verification and revaluation have been brought into account."

Applying the aforesaid principles laid down by the Hon''ble Supreme Court it will be clear that the examination results when published should have some finality attached to it and if verification or revaluation is allowed then there will be no end to it and the University or the institution conducting the examination shall be burdened with innumerable requests from the candidates who appeared in the examinations for revaluation etc. Keeping in view the larger interest of the public and the time which will be taken in conducting revaluation the institutions have been given power to provide for the revaluation etc. and this power is not to be controlled by any outside agency and no grievance can be made if the revaluation facility given by the institution is withdrawn. No student can be permitted to take advantage of revaluation facility saying that it is his substantive or fundamental right to avail this facility which is provided in the Statute or the Regulations of the institution. It is not a substantive right as has been held by a Division Bench of this Court in the case of Ram Bilas v. University of Allahabad (supra). As this is not a substantive right therefore this Court will not sit in judgment over the wisdom of the Lucknow University by which the facility of revaluation has been withdrawn. No doubt, as mentioned in the earlier part of this judgment the facility of revaluation was provided by the University through Ordinance but later on the same was withdrawn. In the Ordinance there is a specific provision regarding withdrawal of the facility of revaluation. There is an Ordinance of the University which was approved by the Executive Council on 2441990 in supersession of the earlier Ordinance approved by the Executive Council of the University on September 26, 1988. The ordinance was given effect from the examinations of 1990. A photo copy of this ordinance is annexure19 to the affidavit accompanying the application for amendment in Writ Petition No. 27 (M/S) of 1994. It provides for the facility of back paper. In clause 9 of the above Ordinance it is specifically mentioned that with the implementation of the back paper facility, the facility for revaluation and the provision of supplementary examination stands withdrawn. It has been tried to argue that back paper facility is not the substitute of revaluation and back paper and revaluation are not one and the same things and they operate indifferent fields and one cannot be withdrawn and the other provided. It has further been argued by the learned counsel for the respondent petitioner that there is no prohibition for revaluation in the Act and the University has to show that there is a bar for revaluation. No doubt, it is true that there in no prohibition for revaluation in the Act but the University has been given power under the Statute, Ordinance and Regulations to provide for certain matters. Section 51 of the Act provides for Ordinance and subclause (m) of this section provides for conduct of the exminations. As seen in the earlier part of this judgment the Hon''ble Supreme Court has held that revaluation is a matter pertaining to conduct of final examinations and publication of results of such examinations. When revaluation is a matter pertaining to conduct of examinations then the University has a right under Section 51(m)of the Act to issue Ordinance with regard to conduct of examinations including the facility of back paper, revaluation, verification etc. The University which had provided the facility of revaluation in the past has power to withdraw that facility and introduce another facility in lieu of revaluation and that act of the University cannot be challenged. It is immaterial whether back paper facility is a substitute for the revaluation facility or not. This Court will not sit in judgment over the wisdom of the University authoritie who have provided for back paper facility in place of revaluation. The position is that the revaluation facility stands withdrawn with effect from the examinations of 1990. The petitioner in the present case appeared in the examination after the above revaluation facility had been withdrawn, therefore, the petitioner cannot have any grievance against the University if the revaluation asked for by the petitioner was refused by the University.

Learned counsel for the respondentpetitioner has argued that some of the questions in the answer books of Mathematics I, II, III and IV papers of the petitioners have not been evaluated. For ascertaining this fact the Court summoned the answer books of the petitioner from the University through the learned counsel for the University. These answer books were placed before the Court and the Court examined each and every question and found that every question has been examined and evaluated. The marks which have been awarded to the petitioner on the answers were also brought on the first page of the answer books correctly. Thus we find that it cannot be said that any question which was attempted to by the petitioner was not evaluated and marks awarded to the petitioner. This contention of the learned counsel for the respondentpetitioner fails. Thus we find that the writ petition was liable to be dismissed.

The Special Appeal is allowed and the order of the learned Single Judge of this Court dated 611994 is set aside and Writ Petition No. 27 (M/S) of 1994 is dismissed. There will be no order as to costs.

Special appeal allowed.