Shrinkhla Singh vs State of Chhattisgarh and Another

Manindra Mohan Shrivastava, J.—By this writ petition under Article 226/ 227 of the Constitution of India, the petitioner challenges the validity of letter dated 09-01-1975 and amendment in Ordinance No. 14 & 18 framed by the respondent No. 2-University vide amendment dated 29-02-2004 in so far as the scheme of revaluation is concerned. The following reliefs have been prayed in the writ petition:-

(i) That the Hon''ble Court may kindly be pleased to allow this petition by quashing Annexure P-1 and P-2 so far it refers that 10% will be of maximum marks instead of increased marks obtained by the petitioner in the interest of justice and consequently the result of petitioner be modified and the respondent No. 2 be directed to issue fresh mark-sheet in accordance with it.

(ii) Cost of the petition be awarded and;

(iii) Any other relief or direction which the Hon''ble Court may deems fit, be also awarded.

Brief and necessary facts for decision of the controversy involved in the writ petition are in narrow encompass. The writ petitioner appeared in MA Final examination, 2009 conducted by respondent No. 2. Upon declaration of result, the petitioner was declared pass with First Division, obtaining 68.67% (537 Marks out of 750 total marks). The petitioner was however not satisfied with the marks awarded to her in IInd paper of the subject "Folk Song", in which, the petitioner was awarded 39 out of 100 marks. The petitioner therefore applied for revaluation of answer copy in that subject, by submitting an application for revaluation. Vide letter dated 29-11-2006 (Annexure P-6), the petitioner was informed by the University that upon revaluation, the marks obtained by the petitioner in the concerned subject remained unchanged. The petitioner, however, was not satisfied and made representation and also requested for supply of answer copy under Right to Information Act. Answer copy was also supplied to the petitioner. The petitioner requested one retired Professor, who revaluated the answer copy and according to him, the petitioner was entitled to 89 marks. Based on such revaluation, the petitioner represented to the University authorities to award her proper marks. After several correspondences between the parties, vide letter dated 04/06-03-2010 (Annexure P-19), the Public Information Officer finally intimated the petitioner that there was no increase in the marks because as per the rules of revaluation, upon revaluation done by the examiners, difference was not to the extent of the 10% of total marks. Along with the covering letter dated 27-03-2010 (Annexure P-20), the petitioner was also supplied relevant extract and the rules relating to revaluation. Thereafter, the petitioner collected information with regard to examiners, their qualifications, etc.

Dissatisfied with the mode and manner of revaluation under the relevant provisions of the Ordinance governing revaluation, the petitioner filed a writ petition [W.P.(C) No. 6667/2010], which was however dismissed as withdrawn with liberty to file another petition with more facts and documents. Thereafter, the present writ petition has been filed praying for the reliefs as reproduced hereinabove.

Though the writ petition, seeking to challenge the validity of the provision contained in Ordinance relating to revaluation, is quite vague, learned Senior counsel for the petitioner vehemently contended that the provision relating to revaluation of answer copies as contained in sub clause-9 & 10 of Clause B of Ordinance No. 14 is highly arbitrary, unreasonable and irrational and therefore violative of Article 14 of the Constitution of India. In his submission, in the matter of revaluation of answer copies, the only relevant consideration ought to be as to whether upon revaluation of answer copies by the revaluers, there has been any change in the marks as has been awarded by the original valuer and one awarded by the revaluers. The bone of contention is that once there is a difference found upon revaluation and higher marks are awarded by the revaluers, candidate is entitled to award of higher marks, irrespective of whether the difference of marks satisfies any percentile of the maximum marks allotted for that particular subject. It was also urged that the rules relating to revaluation arbitrarily provide that even if there is change of marks and in the revaluation, higher marks are given, change in result would not be permitted unless the difference of the marks earlier awarded and average of marks awarded after revaluation is at least 10% of the total marks awarded. This policy of revaluation engrafted in the Ordinance, denies a student, benefit of higher marks on irrelevant and extraneous consideration requiring that the difference should be at least to the extent of 10% of the total marks. In substance, the submission is that reference to 10% of the total marks has no nexus with the exercise of revaluation, therefore, concerned rule contained in the Ordinance is arbitrary, irrational and unreasonable and deserves to be struck down as being ultra vires Article 14 of the Constitution of India.

Per contra, learned counsel appearing for the respondents would submit that the provision relating to revaluation has been framed by the experts in the field of education and its comprehensive rule and the provision lays down a very comprehensive policy of revaluation by taking into consideration the marks obtained in original valuation, marks awarded by two revaluers, averaging and the difference in the valuation by different examiners. According to him, the scheme of revaluation does not permit change of marks merely because there is some change in the marks upon revaluation, but permits benefit of higher marks upon revaluation only when there is substantial change upon revaluation. He submits that a substantial change in the award of marks, upon revaluation, has been provided by prescribing 10% of the total marks, which cannot be said to be either irrational or arbitrary. He further submits that the ordinance makers exercise much greater latitude in laying down the policy and unless, provisions relating to revaluation violated, statutory provisions under the enabling statute or the Constitution of India, merely because there could be another formula or scheme of revaluation, provision of rule cannot be termed as violative of Article 14 of the Constitution of India warranting judicial review of the provision of Ordinance which have the force of law.

Before we take up trio issue as contended before us, we have to say at the cost of repetition, in the writ petition, pleadings are quite vague. In para 8.21 of the writ petition, it has beer, pleaded, as under:-

further more rule for revaluation Annexure P-1 and P-2 are wrong, illegal and ultra vires therefore liable to be struck down because it has no nexus with the maximum marks on the contrary it should have been nexus with marks obtained or marks increased after revaluation. Therefore, those rules Annexure P-1 and P-2 are not sustainable in law and therefore liable to be struck down.

Further, the grounds urged in the writ petition, in para 9.1 & 9.2 are reproduced below:-

9.1 Because the Annexure P-1 and P-2 says about 10% increase of marks as per maximum marks of the paper has no nexus with the revaluation because increased marks must be referable to the marks increased after revaluation therefore the provision of Annexure P-1 and P-2 are illegal and liable to be quashed.

9.2 Because the non grant of revised mark sheet is illegal particularly when 10% of increased marks has been obtained after revaluation by the petitioner therefore also the difference of maximum marks instead of marks obtained after revaluation is illegal and therefore Annexure P-1 and P-2 to that extent are liable to be quashed being arbitrary and illegal.

From the submission of learned Senior Counsel for the petitioner, we could gather during the course of arguments, that the constitutional validity of the Ordinance is sought to be challenged on the ground that it is violative of Article 14 of the Constitution of India mainly on the submission that the prescription of 10% of maximum marks "allotted in a given subject has no rational nexus with the exercise and ultimate result of revaluation. During the course of arguments, learned Senior counsel repeatedly referred to the extract from letter dated 09-01-1975 of the Secretary to the Governor of State of Madhya Pradesh, Bhopal, addressed to the Vice Chancellor of all the Universities of the State, which contains the proposals for amendment of rules regarding revaluation. However, after going through the other documents attached along with the petition, we find that the relevant rules of revaluation are contained in Ordinance No. 14, annexed along with the petition, collectively as Annexure P-2.

The respondent No. 2-University has also placed on record the amendments in Ordinance No. 14 & 18 as duly approved. The provisions relating to revaluation are contained in Ordinance No. 14, which has been framed by the University in exercise of statutory powers conferred u/s 33 & 34 of Indira Kala Sangit Vishwavidyalaya Act, 1956 (For short "the Act of 1956"). Section 34 of the Act of 1956 provides that all Ordinances except the first Ordinance shall be made by the Karyakarini Samiti which shall be submitted to the Kuladhipati for his approval and he may either sanction or disallow. It further provides that every Ordinance approved by the Kuladhipati shall be laid before the Vishwavidyalaya Sabha. The provisions contained in Section 33 & 34 of the Act of 1956 are enabling provisions conferring powers on the University and its authorities to frame their own Ordinances in respect of the matters enumerated in various clauses contained in Section 33 of the Act of 1956. This power is, therefore, not an administrative one but is in the nature of delegated legislation. The enabling Act enacts provisions relating to broad scheme by the legislature while it leaves the power of subsidiary legislation in the hands of the University and its authorities constituted under the act. Therefore, framing of Ordinance is in the nature of delegated legislation. The ordinance, so framed, have u.e. same force and effect as an Act passed by the competent legislature. (Please see St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another,

It is well settled that grounds of judicial review of legislative action are much more restricted then those of the judicial review of administrative action. In the case of Bhim Sen Vs. The State of U. P., it was held that judicial review is permissible to examine whether rules and regulations made by the executive or any other are within their statutory power.

In the case of M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, ], it was held that a delegate acts ultra vires when it acts in excess of his power or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant consideration or with gross unreasonableness.

In the case of AIR India Vs. Nergesh Meerza and Others, ], it has been held that provision in the rule is liable to be struck down, if it is unreasonable or absolutely arbitrary.

In the case of State of Madhya Pradesh and Another Vs. Bhola @ Bhairon Prasad Raghuvanshi, , the scope of judicial review, while dealing with challenge to the validity of a sub-ordinate legislation, came up for consideration. It was held that a delegated legislation can be declared invalid by the Court mainly on two grounds. It was held:-

A delegated legislation can be declared invalid by the court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be he''d to be in violation of the enabling Act.

The submission made by learned counsel for the petitioner are, therefore, required to be tested on the touchstone of the principles laid down by the Supreme Court in the aforementioned decisions defining contours and scope of the judicial review of subsidiary legislative function as contradistinguished from administrative action.

The relevant provision dealing with the revaluation of the answer sheet of a candidate, are contained in Clause B of Ordinance No. 14 (as amended). Copy of the said Ordinance is placed on record, collectively as Annexure P-2. Sub clause (9) & (10), which is relevant for our discussion in the light of the challenge made, is extracted herein below:-

Where a candidate applied for revaluation, the answer book, in which, the revaluation is sought to be sent for valuation by the Kulpati to two examiners (other than the one who initially valued it) at least one of whom shall be from a place outside the State of Chhattisgarh. Five Answer Books valued by the same examiner and a copy of the Memorandum of instructions for the guidance of examiner if prepared by the paper Setter shall be sent to each of the examiners to enable them to evaluate the answer book concerned in the tight of the standard set by the examiner and the memorandum or instructions. If less than five candidates had appeared at the examination in the paper concerned, the answer books of all the candidates shall be sent to each of the examiners. Each of the two examiners shall receive remuneration for the revaluation of an answer book as declared by the Vishwavidyalaya from time to time.

If the marks awarded in the paper by any of the two examiners varies from the marks given by the original examiner by more than 10% of the maximum marks in the paper, the average of the marks awarded by two of the examiners, the original examiner and the two revaluers and nearest to each other will be taken to represent the correct valuation. This revision of his/her result provided that subject to the condition that at lest one of the variations from the original marks is more than ten percent of the maximum marks in the paper. If two differences in marks allotted by the three examiners are equal, the two marks to the best advantage of the candidate shall be taken into the account for arriving at the correct valuation.

A perusal of the aforesaid provision reveals that a very comprehensive scheme of revaluation with great deal of objectivity and fairness has been framed. Where candidate applies for revaluation of answer book, the same is required to be sent for revaluation to two examiners other than the one who initially valued it. It further provides that at least one of them should be from a place outside the State of Chhattisgarh. Moreover, five answer books valued by the same examiner and a copy of the Memorandum of instructions for the guidance of examiner, if prepared by the paper Setter, shall be sent to each of the examiners to enable them to evaluate the answer book concerned in the light of the standard set by the examiner and the memorandum of instructions. Sub-clause 10 provides that if the marks awarded in the paper by any of the two examiners varies from the marks given by the original examiner by more than 10% of the maximum marks in the paper, the average of the marks awarded by two of the examiners, the original examiner and the two revaluers and nearest to each other will be taken to represent the correct valuation. The rule further provides that such revision of result will be subject to the condition that at lest one of the variations from the original marks is more than ten percent of the maximum marks in the paper, if two differences in marks allotted by the three examiners are equal, the two marks to the best advantage of the candidate shall be taken into account for anteing at the correct valuation.

The aforesaid analysis of the rule of revaluation reveals that while ensuring that a candidate appearing in examination gets fair assessment of his answer, the policy of the Ordinance makers is that change of marks would not be allowed only because there is some change upon revaluation. The policy seems to be that unless there is substantial change, change of marks upon Revaluation, would not be permissible. Such a scheme of Ordinance permitting change of marks only when there is substantial change upon revaluation, in our considered opinion, can neither be said to be arbitrary or unreasonable. Valuation of answer books is essentially a matter of subjective satisfaction of the examiner who evaluates answer books. There are always possibilities of some change in the marks, if the answer books are valued by another examiner. Therefore, mere difference in the total numbers awarded by the original examiner and those awarded by revaluers by itself would not mean that the candidate''s right of fair assessment has been denied. However, where the difference in the marks as awarded by the original examiner and the examiner upon revaluation is substantial, it may entitle a candidate to award of higher marks awarded upon revaluation by the revaluers. Therefore, the scheme of revaluation is only to ensure that a candidate should not be deprived of proper marks, to which, he is entitled upon proper valuation and not award of higher marks, merely because, there is some change, because in subjective assessment, such changes are bound to occur.

Ordinance makers, who are experts in the field of education, in their wisdom, have provided that difference of marks, at least to the extent of 10 % of the total marks, would be regarded as substantial change. Such prescription, in our opinion, only adds objectivity to the exercise of revaluation.

Present is not a case, as submitted by learned counsel appearing for the petitioner, that while framing Ordinance governing revaluation, marks awarded by the original examiner and marks awarded by the examiners upon revaluation, have no relevance or reference. As discussed above, the provision regarding revaluation is a comprehensive one and not only takes into consideration the marks awarded by the original examiner but also the marks awarded by two examiners upon revaluation, averaging all the total marks, awarded by two of the examiners and the original examiner and the two revaluers and nearest to each other. The exercise contemplated in the provision is aimed to arrive at correct valuation, as far as possible. The provision, therefore, provides that if two of marks allotted by the three examiners are equal, the two marks to the best advantage of the candidate shall be taken into account for arriving at correct valuation. Therefore, the contention of learned counsel for the petitioner that the rule relating to revaluation has no nexus with the marks originally allotted and marks awarded upon revaluation, is factually incorrect. The policy of the Ordinance makers that the change in the marks would be permissible only when there is substantial change upon exercise of revaluation in the manner prescribed in the provision, does not suffer from arbitrariness or unreasonableness, but only recognizes the probabilities that every valuation is bound to have some change or difference. Prescription of 10% of total marks is a parameter of substantial change, which, in our opinion, only provides objectivity to the rule eliminating discrimination or arbitrary exercise in the hands of the authorities and application of uniform rule to all the candidates applying for revaluation.

As held in the case of Public Services Tribunal Bar Association Vs. State of U.P. and Another, ], there is always presumption regarding constitutional validity of law and heavy burden lies on one, who challenges it. The pleadings which we have referred to, are quite vague and there is hardly anything to demonstrate why we should be inclined to hold the rule as arbitrary or unreasonable.

The scope of judicial review in the matter of subordinate legislation, challenged on the ground of arbitrariness, has been explained by the Supreme court in the case of Sharma Transport Rep. by D.P. Sharma Vs. Government of Andhra Pradesh and Others, , as under:-

The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.

The landed scope or judicial review in such cases was again examined by the Supreme Court in the case of Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat and Others, ], as under-

We have recently held in Govt., of A.P. v. P. Laxmi Devi that the court should exercise judicial restraint while judging the constitutional validity of statutes. In our opinion, the same principle also applies when judging the constitutional validity of delegated legislation and here also there should be judicial restraint. There is a presumption in favour of the constitutionality of statutes as well as delegated legislation, and it is only when there is a clear violation of a constitutional provision (or of the parent statute, in the case of delegated legislation) beyond reasonable doubt that the court should declare it to be unconstitutional.

As an upshot of the above discussion and the analysis of the provisions relating to provisions contained in Ordinance No. 14, we have to hold that there is no merit in the petition. The petition, is therefore, liable to be dismissed and is accordingly dismissed. No orders asto cost.