S. Sudarshan Kumar vs University of Madras and Another

K. Sampath, J.—The prayer is for a mandamus to the respondents herein to produce the answer paper 6L.C. ""Instrumentation System"" with

Registration No. 8707336 of April, 2000 Examination of Engineering Course for verification as to whether all the answers were valued and

correctly totalled and order evaluation of unvalued answers and award marks.

The case of the petitioner is as follows:

The petitioner is a student of Electrical and Electronics Engineering (EEE) in Sri Venkateswara College of Engineering, having joined the course in

the year 1997. He has been rated as one of the best students in the College. He has secured 83.8% in the first year, 87% in the III semester,

80.75% in the IV semester and 83% in the V semester. In the VI semester, he wrote six papers and he wrote them well. But when he received the

mark-sheet, he found to his shock that he had been awarded only 30% marks in Instrumentation System. He had answered all the questions and

the answers which he had given in the answer book would entitle him to secure more than 80%. He approached the College Authority through his

father and sought an audience with the Principal. He also gave an application for rescrutiny. The Principal of the College was also surprised of the

marks given to the petitioner in the said subject. He went to the extent of making an endorsement in the application given on his behalf on

12.7.2000 seeking revaluation on the following lines:

Submitted to the Controller of Examination. Sir, Mr. Sudarshan Kumar''s academic record is brilliant and first in the College so far. Hence, he may

be first in the University also. There seems to be a clerical/data entry error. I request you to give your personal attention so that an excellent student

does not lose faith in our Educational system.

He made a further endorsement in the application for revaluation/retotalling as ""Strongly Recommended.

The petitioner was one of the few candidates selected in the campus interview held by I Nautix Technologies India Private Limited. His

appointment being a conditional one, that the offer was revocable if all the subjects had not been cleared in the first attempt. Either the valuation of

the paper does not refer to the answer book of the petitioner or an omission to value certain answers and in this case, a mistake could not be a

mere mistake in totalling. The very system of evaluation and rechecking required to be reconsidered for the purpose of ensuring justice and fair

play as otherwise students similarly placed like the petitioner would be left with no other effective way of redressal of their grievance. In the

TOEFL examination, the petitioner has secured 647 out of 677 marks and in GRE examination, he has secured 2260 out of 2400. The marks in

Instrumentation System in the VI semester would be an obstacle for the petitioner to take further studies abroad. Indeed, there is no provision for

revaluating the answer papers as per the Regulations. However, if there had been no assessment, a direction could be issued after calling for

rescrutiny. In W.P. No. 8835 of 1996, this Court found that the answers given for some questions had not been valued and a direction was issued

to award marks for the said answers also. Similarly in W.P. No. 10321 of 1998, similar directions were issued. The petitioner has applied for the

examination to be held in October, 2000 and he has also paid the necessary fees. But his passing in the subsequent examination will not delete the

records that he had failed once. It is under these circumstances that the writ petition came to be filed.

P.D. Dinakaran, J. ordered notice of motion returnable in one week on 29.8.2000. Mr. B. Ramamoorthy, learned standing counsel for the

University entered appearance on behalf of the respondents. On perusal of the allegations in the affidavit as also the academic record of the

petitioner found in the typed set of papers, I was satisfied that the petitioner had been more than an average student, his, performance had been

uniformly good and that it was very likely that some mistake had happened somewhere. I gave an oral direction for the production of the answer

paper for the subject Instrumentation System. When Mr. Ramamoorthy produced the answer paper, I found that some of the answers had not

been valued. Therefore, I directed Mr. Ramamoorthy to have the paper revalued, unofficially.

This revaluation gave 78% to the petitioner in the subject. Seeing the wide gulf between the officially declared marks namely 30% and

unofficially revalued marks, I directed official revaluation. This was also done and this came to 69%. Thereafter, I directed the University to get the

average of these two figures. The University has done this and the petitioner has secured 74%.

I am aware of the legal position that ""it is not expedient to extend the horizon of natural justice involved in the audi alteram partem rule to the

twilight zone of mere expectation, however"" great they might be. Union of India (UOI) Vs. Mohan Lal Capoor and Others, . I am equally aware

that ""the principle of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried out to such absurd lengths as

to make it necessary that candidates who have taken the public examination should be allowed to participate in the process of evaluation of their

performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of their answer books

and determining whether there has been a proper and fair valuation of the answers by the examiners. Maharashtra State Board of Secondary and

Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, .

The rules of the University do not provide for revaluation. On first blush, decisions also appear to spell out a clear embargo against revaluation

Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, , B.

Rajappa Vs. The Addl. Controller of Examination, University of Madras and Another, and Minor P. Navinnath, etc. and Ors. v. Secretary

Selection Committee I year M.B.B.S. Course, etc. (2000) Writ L.R. 119. However, we have to get over the inhibitions and impediments

obstructing the adoption of a just course in the instant case. Let us now first date the case decided by the Supreme Court in Maharashtra State

Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, . After observing:

It is common experience that whenever the results of public examinations conducted by school Boards and Universities or by other bodies like the

Public Service Commission are announced, amidst the rejoicings of successful candidates who have secured the grade of marks anticipated by

them, it also inevitably brings with it a long trail of disappointments and frustrations as the direct outcome of the non-fructuation of hopes and

expectations harboured in the minds of the examinees based on the candidates'' own assessment of their performance and merit. Labouring under a

feeling that there has not been a proper evaluation of their performance in the examination, they would naturally like to have a revaluation of the

answer books and even a personal inspection and verification of the answer books for finding out whether there has been a proper evaluation of

the answers to all questions, whether the totalling of marks has been correctly done and whether there has been any tampering with the seat

numbers written on the answer books and the supplementary sheets,

the Supreme Court rejected such a demand, holding that under law as abiding by the Regulations of the Maharashtra State Board of Secondary

and Higher Secondary Education governing the subject categorically stating as they had that there should be no right to demand such an inspection,

verification and revaluation of answer books, set aside the decision of the Bombay High Court taking a contrary view and holding that Maharashtra

Regulation was ultra vires the regulation making power conferred by Section 36 of the Maharashtra Secondary and Higher Secondary Education

Boards Act (41 of 1965) and was also illegal and void on the ground of its being manifestly unreasonable. The Supreme Court observed in

paragraph 14 as follows:

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 on 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 take 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.

The Supreme Court further observed in paragraph 16 as follows:

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 drawbacks 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.

In the view of the Supreme Court none of the vitiating factors was shown to exist in the case decided by it. In paragraph 26, the Supreme Court

proceeds to say as follows:

What constitutes fair play depends upon the facts and circumstances relating to each particular given situation. If it is found that every possible

precaution has been taken and all necessary safeguards provided to ensure that the answer books inclusive of supplements are kept in safe custody

so as to eliminate the danger of their being tampered with and that the evaluation is done by the examiners applying uniform standards with checks

and crosschecks at different stages and that measures for detection of malpractice, etc. have also been effectively adopted, in such cases it will not

be correct on the part of the Courts to strike down the provision prohibiting revaluation on the ground that it violates the rules of fair play.

A contrary view in the opinion of the Supreme Court would result in uncertainty regarding the results of the Competitive Examinations for an

indefinite period of time until all such requests have been complied with and the results of verification and revaluation have been brought into

account. The Supreme Court concluded as follows:

Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly

defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to

what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical

expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong

for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass-root

problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a

pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of

a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice.

Needless to say that the question canvassed before the Supreme Court was for the extreme position. Very wide and extraordinary remedies

were prayed for. In those circumstances, the Supreme Court held that the rule relating to prohibition against revaluation cannot be stated to be ultra

vires; the candidates demanding verification and revaluation as they did and even inspection of all answer books. Such an extreme prayer would

never have been decided in favour of the candidates.

The next decision is the decision of a Division Bench of this Court in Maharashtra State Board of Secondary and Higher Secondary Education

and Another Vs. Paritosh Bhupeshkumar Sheth and Others, . Here also, the candidate opened his mouth too wide. The prayer in the writ petition

decided by the Bench was for a certiorarified mandamus calling for the records from the University and quashing the memorandum issued by the

Additional Controller of Examinations, Madras University dated 6.3.1990 in his official Memorandum No. E6/B.Arch/1980 and directing the

Additional Controller of Examinations to arrange for revaluation, by objective and dispassionate examiners of the petitioner''s answer papers in

B.Arch (Final) Examination, 1979 in Advanced Architectural Design, Thesis, Town Planning and Advanced Structural Design on a fair comparison

with the answer papers of other candidates who had been declared successful in the same B.Arch (Final) Examination, 1979. It is to be noted that

in the case dealt with by the Bench, the rules provided for revaluation. The Bench held that, ""the petitioner could not be allowed to travel beyond

them and suggest a mode which according to him was reasonable and a fair one and once this approach is countenanced, it is not possible to draw

any line anywhere, and suggestions after suggestions on the concept of proper, fair and reasonable method of revaluation are likely to be placed

before Courts and the Courts would be obliged to substitute and support their views on the methodology of revaluation. That is a field, better left

to the professional acumen of personnel, possessing technical expertise and wide experience on those aspects, and Courts would do well not to

superimpose their views and to restrain themselves from doing it."" The Bench referred to the decision of the Supreme Court in Maharashtra State

Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, . The Bench went by the strict

construction of the rule.

The next decision is the one reported in Minor P. Naveen Nath, etc. and Ors. v. Secretary Selection Committee, 1st Year M.B.B.S. Course,

etc. 2000 Writ L.R. 119. In that case, the problem arose this way. The petitioners claimed that after passing the X standard examination in 1995,

they joined XI standard i.e., I year of the Higher Secondary Course. They secured good marks in the I year examination and earlier too. After the

results of the Final year examination of the Higher Secondary Course were declared, there was a murmur among the students community and the

parents as well as in the media through representations, proclaiming that there were variations in the marks obtained by the students in various

subjects and the variation was in some cases to the extent of even 100 marks. Thus, there was no proper evaluation of their answer sheets. Two

questions arose for consideration by the Bench.

(i) whether in the matter of admission to Professional Courses like Medicine, etc., the authorities could admit the students as per the merit list made

on the basis of the total marks obtained in the eligibility qualifying examination and the marks in the Common Entrance Test;

(ii) whether the candidates either in the eligibility qualifying examination or in the Entrance Test could have inspection or revaluation of their answer

scripts. After referring to a number of decisions, the Bench laid down certain guidelines in matters like this and they are as under:

(1)That the relief in exercising the writ jurisdiction cannot be extended to nondiligent persons i.e., no relief can be granted to those who approach

the Court at their sweet-will.

(2) The Courts cannot assume the role of an appellate authority. Courts should only interfere with the decisions falling within the jurisdiction of the

educational institutions when it must do so in the interest of injustice.

(3) Rules provide for the limited scrutiny of answer scripts post publication and not providing for re-evaluation or re-examination.

(4) Candidates cannot be allowed to participate in the process of evaluation of their answer sheets or verify the evaluation made by the examiners.

(5) Finality is the virtue of the public interest, otherwise it would lead to uncertainty especially when it involved the relative merit.

(6) The students having applied under the rules set out in the Prospectus, appeared and took a chance, cannot now challenge the very rule

contained in the Prospectus. Petitioners are estopped by their own act and conduct.

(7) Where there is no rule for re-evaluation no writ can be issued for the same. Re-scrutiny or re-examination of papers can be made to a limited

extent provided by the rules for limited post-publication scrutiny of papers.

(8) Petitioners have no right for re-evaluation or for production of answer sheets. Reference may be made to Maharashtra State Board of

Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, .

(9) Courts should give effect to the plain meaning to the regulations irrespective of its consequences.

(10) The judgment of the Madras High Court in T. Rajappa v. Additional Controller of Examinations, Madras University 1989 Mad. 242 : 1989

Writ L.R. 55 runs counter to the view taken by the Hon''ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary

Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, , where it was observed that it will be wholly wrong for the Courts to make

a pedantic and purely idealistic approach to problems of this nature isolating from actual realities and grass-root problems involved in the working

of the whole system and unmindful of consequences which would emanate if purely idealistic view as opposed to a pragmatic one were to be

propounded. It is not permissible for the Courts to bring in a new theory and have that incorporated in the rules pronounced. After observing the

same, the Hon''ble Supreme Court rightly declined to countenance the proposition of re-evaluation by comparison.

(11) It is not for the courts to decide whether the remedies provided by the Act are sufficient or not. All restrictions have to be considered in public

interest in order to advance public purpose or the object to be carried out and should not be excessive and disproportionate to the needs of the

situation.

So far as the tenth guideline is concerned, the Bench in my view has made a mistake in observing that the earlier Bench in Rajappa''s case AIR

1989 Mad. 242 : 1989 Writ L.R. 55 had taken a view contrary to the one taken by the Supreme Court in the Maharashtra State Board of

Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, . In fact, the Bench in Rajappa''s case

has specifically referred to the earlier Supreme Court judgment and has followed the same. The Bench found that the allegations of the students or

parents had hardly any basis and an error here and there or in one or two cases or in fifty cases out of 347000 candidates could hardly be the

basis to assume and lend credibility to their apprehensions and if this was permitted, the system would itself be bogged down. The Courts could

not assume the role of an Appellate Authority. The students could not be allowed to participate in the process of re-evaluation or verifying the

marks of evaluation. Finality and certainty was in the public interest.

There is no escape from the principles laid down by the Division Bench. So far as the principles go, they have to be followed. However, in the

present case, it is established that there is violation of statutory duty and when it is so found, the Court has no alternative other than to interfere

under Article 226 of the Constitution. In Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, , a three-Judges

Bench of the Supreme Court has held as follows:

Article 226 is couched in comprehensive phraseology and its ex facie confers a wide power on the High Court to reach injustice wherever it is

found. A wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised

was designedly used by the Constitution. The High Court can issue writs in the nature of prerogative writs as understood in England; but the scope

of those writs also is widened by the use of the expression ""nature"", which expression does not equate the writs that can be issued in India with

those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the

prerogative writs. The High Courts are enabled to mould the reliefs to meet the peculiar and complicated requirements of this country. To equate

the scope of the power of the High Court under Article 226 with that of the English Courts to issue prerogative writs is to introduce the

unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast

country like India functioning under a federal structure. Such a construction would defeat the purpose of the article itself. But this does not mean

that the High Courts can function arbitrarily under this article. There are some limitations implicit in the article and others may be evolved to direct

the article through defined channels.

In Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, , the Supreme Court held that the expansive and

extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person

even a private individual - and be available for any (other) purpose - even one for which another may exist. The amendment to Article 226 in 1963

inserting Article 226 (1-A) reiterate the targets of the writ power as inclusive of any person by the expressive reference to the ''residence of such

person''. The Supreme Court has spelt out wise and clear restraints on the use of this extraordinary remedy and high Courts will not go beyond

those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or

mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous

prospect, the writ power has, by and large, been the people''s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril

to human rights. Again, in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R.

Rudani and Others, . it has been held as follows:

Under Article 226, writs can be issued to ""any person or authority"". It can be issued ""for the enforcement of any of the fundamental rights and for

any other purpose."" The term ""authority"" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12

is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs

for enforcement of the fundamental rights as well as non-fundamental rights. The words ""any person or authority"" used in Article 226 are, therefore,

not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty.

The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be

judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a

positive obligation exists mandamus cannot be denied.

In Union of India (UOI) and Others Vs. R. Reddappa and Another, , relied on by the learned Senior Counsel, Mr. G. Subramaniam, the

Supreme Court has observed that once the Court is satisfied of injustice or arbitrariness, then the restriction, self-imposed or statutory, stands

removed and no rule or technicality on exercise of power, can stand in way of rendering justice. In B.C. Chaturvedi Vs. Union of India and others,

, the Supreme Court approving the decision of the Orissa High Court in Krishna Chandra Pallai Vs. Union of India (UOI) and Another, held as

follows:

High court being a Court of plenary jurisdiction has inherent power to do complete justice between parties similar to Supreme Court''s power

under Article 142.

In Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], , the Supreme Court has reiterated the Court''s power

under Article 226.

No limitation except self imposed - the arm of Court long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to

mete out justice in given facts.

With regard to the facts of the case and the position of law with regard to exercise of powers under Article 226, this Court is clearly of the

view that none of the decisions poses a veto on the exercise of the power under Article 226. This is a case where the University had not ensured

that the evaluation was done by the examiners applying uniform standards with checks and crosschecks at different stages as pointed out by the

Supreme Court in the Maharashtra case, 1984 S.C. 1543. This is therefore an exceptional case where if the power under Article 226 is not

exercised, the future of a bright student will be in shambles and it will be an eternal blot on the system. In view of the extraordinary circumstances

of the case and at the same time without making it a precedent, I hold that the petitioner is entitled to have the relief to the extent of rescrutiny and

allotment of marks for answers not actually valued. The same having been done pursuant to the directions of this Court, what further remains is to

direct the University to give the revised mark-list incorporating the petitioner''s score as 74% in Instrumentation System. The learned Counsel for

the University has got the revised mark-list and the same is handed over to the learned Senior Counsel for the petitioner. The learned Senior

Counsel has also returned the old mark-list to be passed on to the University. There will be a further direction to the University to publish the result

of the petitioner as having passed in the examination. The writ petition is disposed of as above. No costs. Consequently, W.M.P. No. 21208 of

2000 is closed.

I will be failing in my duty if I do not place on record the valuable service rendered by Mr. Ramamoorthy appearing for the University. He has

been very fair in getting the paper revalued and I place this fine gesture on record. Perhaps he was motivated by the fact that the future of a brilliant

student should not suffer.

I should also observe that situations like this should not recur and the University should ensure that the examiners appointed by it discharged

their duties properly with dedication and a consciousness that they are dealing with the future of students.