Sunita Singh vs King George’S Medical University, Lucknow and Others

Devi Prasad Singh, J.—Heard learned counsel for the parties.

Oh! Et tu Brutus, while putting these words in the mouth of Julius Caesar, Shakespeare, must have known that to what extent the persons holding high office may also go down. This is a case where a disciple or shisya has charged his own Guru (teacher) for fabrication and manipulation of copies by downgradation of marks. It is not easy to unveil the truth, but within the ambit of law and extraordinary power conferred by Article 226 of Constitution of India, this Court is always dutybound to unveil the truth while dispensing the justice to the peoples of the country.

The petitioner who is the final year student of King George Medical University, Lucknow (in short hereinafter referred as KGMU), was pursuing her final year BDS course and approached this Court assailing the conduct of opposite party No.3, who is the Head of the Department of Operative Dentistry, with the allegation that inspite of giving of correct answers and performing fairly good practical works, she has been failed in the theory and practical paper of operative dentistry for extraneous reasons by adopting immoral, unethical and unwarranted methods.

According to petitioner''s counsel, petitioner was admitted for BDS course at Jawaharlal Nehru Medical College, Belgaum through competitive test. In the first professional examination of the said college, she has obtained 67.7% marks and thereafter, transferred to KGMU, Lucknow, now King George Dental University, Lucknow (in short hereinafter referred as KGDU). The petitioner had joined the second professional course of KGMU in the year 1991. She had passed first professional course of BDS with 67.3 marks and stood third in her batch. The petitioner had also got �Certificate of Honour� in three subjects namely, Human Dental Anatomy, Dental Histology and General Dental Materia Medica. The petitioner had passed third professional examination of BDS course with 66.3% marks and ranked second position in her batch. She was awarded with �Book Prize�.

The present controversy relates to result of final year professional examination of BDS course. In the final year professional examination, the percentage of marks as obtained by the petitioner in various subjects, as mentioned in Para 7 of the writ petition, is reproduced as under:

�(I) Orthodontics 65%

(II) Pedodontics 58.5%

(III) Oral Surgery 66%

(IV) Prosthodontics 57%

(V) Periodontics 60%

(VI) Operative Dentistry 41%

50% marks in all the subject is necessary to declare a candidates successful in the examinations.

The submission of the learned counsel for the petitioner is that the opposite party No.3 is the Head of the Department of Operative Dentistry. According to learned counsel for the petitioner and pleading on record, (though it has been denied by the opposite party No.3), the opposite party No.3 was annoyed with the petitioner as she has raised voice against the opposite party No.3 by disclosing the fact that he had not taught certain important topics in the paper of Operative Dentistry resulting in resentment amongst the students of her batch.

It has been further submitted by the learned counsel for the petitioner that feeling aggrieved by the raising of voice, the opposite party No.3 had manipulated the records and lowered down the petitioner''s marks by cutting, erasion and use of whitener in the answersheets and copies of the examination of Operative Dentistry.

After declaration of result, when the petitioner does not find her name in the list of successful candidates, she has submitted various representations to the Vice Chancellor of KGMU for redressal of her grievance and revaluation of copies. Copies of representations dated 4th April 2004, 13th April 2004, 15th April 2004 and 19th April 2004 have been filed as Annexure Nos. 1, 2, 3 and 4 to the writ petition.

In the counter affidavit, the opposite party No.3 had denied the allegations and submitted that since the petitioner had received less than 30 marks in practical and theory papers, she has been rightly failed in the examination. It has been further submitted by opposite party No.3 that she had valuated the copies meticulously and since the theory and practical examinations were conducted by external examiner alongwith opposite party No.3, the allegation of manipulation of records is not sustainable. According to opposite party No.3, no tampering of record was done by her. It has further been submitted by opposite party No.3 that the mother of petitioner is the Professor in the Department of Pediatrics, KGMU, Lucknow who had contacted the opposite party no.3 alongwith her husband for increasing of marks and when the opposite party No.3 had declined to do so, the present writ petition has been filed. Opposite party No.3 had also casted aspersion on the Vice Chancellor of the KGMU.

The opposite party No.3 further submits that even she does not recognise the petitioner physically and all the allegations levelled against her are frivolous and baseless. However, the reply submitted by opposite party No.3 in the counter affidavit has been categorically denied by the petitioner through rejoinder affidavit.

It has been submitted by the petitioner that being a brilliant scholar and on account of holding position in the merit list, it is incorrect to say that the opposite party No.3 does not know the petitioner.

In counter affidavit filed by the opposite party No.1 and 2, the marks received by the petitioner in various examination as discussed hereinabove, has been admitted in para ''6''. It has been further submitted by the opposite party no.1 and 2 that after receipt of petitioner''s representation, the Vice Chancellor had considered the petitioner''s case and after scrutiny of papers, the petitioner was found to have received sufficient marks in theory papers to declare her as a successful candidate. The petitioner''s copies were sent for revaluation or reexamination by the two examiners of outside the State who after examining the theory papers, found that the petitioner had received sufficient marks and got success in the theory paper of Operative Dentistry. A practical examination was held on 8th May 2004 on the direction of Vice Chancellor by two examiners of other Universities situated in the State of U.P. but in the presence of Dean of the Faculty of Dental Department. However, in the said practical examination, petitioner could not succeed to get sufficient marks to pass the practical paper of operative dentistry. Admittedly, vice Chancellor has taken this step with no jurisdiction, as a relevant rule does not contain a provision for revaluation.

In pursuance to order passed by this Court, records were produced on 24th May 2004. After perusal of original record, it was found by this Court that cutting and overwriting were done in each and every question of theory paper. In the award sheet also, overwriting and cutting as well as erasion were found.

From the perusal of original record it was found that in the practical paper of Operative Dentistry petitioners had received more than 50 marks but it was reduced to 42 marks. Similarly in copies also marks were changed by interpolation, overwriting, erasion and by use of whitener.

On 24th May 2004, it has come to light that KGDU has been constituted. Hence, the petitioner was permitted to implead the newly constituted University as opposite party No.4 and notice was served accordingly and counter affidavit was filed by Opposite Party No.4.

During the course of hearing on the next date, it was submitted by the petitioner''s counsel that the petitioner had passed the examination at the face of record and there seems to be interpolation and fabrication in the copies and award sheet of theory and practical papers. It was further submitted by the petitioner''s counsel that so far as theory paper is concerned, since it is based on revaluation of same copies of operative dentistry by the examiners of other university or college situated outside the State of U.P., it may be relied upon for declaration of result. But, so far as the practical examination conducted afresh on the order of Vice Chancellor, it was held in the presence of Dean of Faculty of KGMU and influenced by opposite party No.3. The petitioner was informed regarding the fresh practical examination almost 48 hours before the due date. It was further submitted by petitioner''s counsel that the Vice Chancellor had not taken any action to search out as to what was the original marks granted to the petitioner in the practical examination of operative dentistry. Learned counsel for the petitioner, alongwith rejoinder affidavit had filed the news items published in Times of India dated 8th May 2004 and 9th May 2004 which reveals that there was resentment amongst the faculty members of the KGMU against the decision taken by the Vice Chancellor for reexamination of the petitioner''s copies. The news item dated 9th May 2004 as published in Times of India further reveals that the names of two professors were given who conducted the fresh practical examination of the petitioner on the direction of Vice Chancellor.

Under the facts and circumstances and news item published in the newspapers, it can not be ruled out that the holding of practical examination was very well known to all, who are concerned with the present controversy. Though, the Vice Chancellor has taken step to unveil the truth by revaluation of copies, but no steps were taken to work out as to what were the actual marks which the petitioner had received in practical as well as theory paper of Operative Dentistry. Moreover, holding of fresh practical examination under the convenorship or coordination or in the presence of Dean of the faculty should not have been done, as the fabrication in copies were detected by the Vice Chancellor himself, alleged to be committed by the examiner of the University itself.

The opposite party No.4 had also filed counter affidavit and submitted that since after revaluation of copies and fresh practical examination, petitioner had not succeeded in the examination, present writ petition fails and liable to be dismissed. It has been further submitted by opposite party No.4 in his counter affidavit that it will set a wrong trend and wrong signal to the students to challenge each and every examination. Learned counsel for the petitioner submits that opposite party No.4 had relied upon various judgments of Apex Court and submits that the interference by this Court in examination matter will open front gate of litigation. Petitioner as well as the students who failed in the examination, are generally prone to make allegation that the assessment of answer scripts are defective, arbitrary or partial to explain their valuation. It has been further submitted by the opposite party No.4 that in the academic matters normally court should not interfere.

The action taken by the Vice Chancellor of KGMU was not approved by the executive council of the University in its emergent meeting held on 13th May 2004 on the ground that under rule there is no provision for revaluation of copies. Accordingly, the action taken by Vice Chancellor of revaluation of copies or holding afresh practical examination was annulled by the executive council of the KGMU.

It is not disputed by the parties'' counsel that under the U.P. State Universities Act or the First Statute of the University there is no provision for revaluation of copies or holding of fresh practical examination. The decision taken by the Vice Chancellor to revaluate the petitioner''s copy seems to be an effort to unveil the truth, though, it was done against the statutory provisions. Accordingly, the holding of fresh practical examination on the order of Vice Chancellor was against the statutory provisions. However, the conduct of the Vice Chancellor in revaluation of copies seems to be a bonafide act to extend justice to petitioner. But, from the records as well as pleadings of the parties, it is evident that no action was taken by the Vice Chancellor to search out as to what was the actual marks in the practical or theory papers of the Operative Dentistry. Vice Chancellor has not taken care to hold the fresh practical examination by keeping away the Dean or teaching staff of the KGMU, from the practical examinations. The practical examination could have also been held at other University or in an affiliated college of KGMU itself but it was not done for the reasons best known to authorities.

Keeping in view these facts and circumstances, by order dated 25th May 2004, the original theory paper as well as award sheet of practical examination of the paper of operative dentistry was sent to the Director, Government Forensic Laboratory, Mahanagar, Lucknow to submit a report after scientific investigation and analysis.

In pursuance to order passed by this Court, the Joint Director, U.P. Vidhi Vigyan Prayogshala, Mahanagar, Lucknow had sent a report dated 28th May 2004. According to report of Forensic Laboratory of the State Government, the interpolation, alteration and erasion and change of marks in each and every answer were found and established. The petitioner was found to obtain sufficient marks in both theory and practical papers, sufficient to declare her pass in the final year examination.

From the perusal of the report dated 24th may 2004 sent by Joint Director, Vidhi Vigyan Prayogshala, Mahanagar, Lucknow, the petitioner had received sufficient marks to declare her pass. The entire report dated 28th May 2004 sent by the Joint Director, Vidhi Vigyan Prayogshala, Mahanagar, Lucknow is reproduced as under:

One of the arguments advanced by the opposite parties is that the Court should not interfere in such matters where academic standards are to be maintained by the experts of the field. It has been further submitted by learned counsel for the respondents that opposite party No.4 as well as other persons associated with the present controversy hold highest posts in the academic field and accordingly, it can not be expected that they will do wrong to the petitioner. The arguments advanced by the opposite parties may be considered by taking notice of the present state of affair in the society where morality, honesty and integrity is falling towards downwards with fastest speed being influenced by caste, creed, religion and western culture. This fact has been noticed from a poem of a Poet and freedom fighter of District Faizabad, State of U.P. Pt. Ambika Prasad Tripathi (Matwala), to quote Matwala from his own Poem:

Accordingly, on account of deterioration of morality and character it can not be said that the persons holding high offices may not commit any wrong. Once a citizen approaches this Court to ventilate his/her grievance to protect his fundamental rights or the statutory rights then this Court is duty bound to consider the grievance of such persons even if a petition has been filed against a person holding a very high office in the Government or in an institution. This Court can not shirk from its responsibility to preserve the rule of law under the constitutional frame, being last resort to the peoples.

Shri Umesh Chandra, learned Senior Advocate as well as Shri Abid Ali while appearing on behalf of opposite party No.3 had submitted that no relief for the revaluation of the copies may be granted by this Court and this Court cannot direct the University to pass the petitioner in the examination in question. It has been further submitted by learned senior Advocate Shri Umesh Chandra that the averments contained in the writ petition are vague and not specific. Paras 1 to 12 and 17 have been sworne on the basis of personal knowledge and paras 16 and 18, 19 on the basis of record. It has been not indicated in the writ petition as to how the allegations of fabrication in record has come into petitioner''s knowledge and from which record the petitioner has come to know relating to the interpolation or fabrication done in the copies or award sheet. While assailing the order passed by the Vice Chancellor dated 17th May 2004, learned counsel further submits that how the Vice Chancellor had made an adverse observation in the impugned order when record was not in his possession. Opposite party No.3 had never come in contact of the petitioner and both are not known to each other. He further submits that in the original representation filed as Annexure No.1 and 2, there is no allegation against the opposite party No.3 and for the first time allegation has been raised on 15th April 2004. Learned Senior Advocate Umesh Chandra further submits that since the source of knowledge has not been disclosed in the writ petition hence either the petitioner has himself stolen the copies or someone within the University had helped the petitioner to know the factum relating to the grant of impugned marks. He further submits that an affidavit has been filed by Dr. Ravi Kapoor who was the external examiner and the petitioner had not rebutted the statement contained in the affidavit of Shri Ravi Kapoor. Shri Umesh Chandra further submits that no verification or revaluation of copies can be done in violation of rules. The rules do not provide for revaluation of copies. Alternatively he further submits that since in accordance to revaluation done by Vice Chancellor petitioner could not get success and she has been failed in examinations, the chapter should be closed and writ petition may be dismissed.

During the course of argument it has been submitted by learned counsel for the opposite party No.3 that in the copies over each and every cutting the opposite party No.3 had put his signature. The places where the signature of opposite party No.3 does not exist, they were not interpolated by opposite party No.3. This might have been done by some other persons. Shri Umesh Chandra learned Senior Advocate submits that Dr. Ravi Kapoor was an external examiner for practical paper as well as for the first paper theory paper of operative dentistry. It has been submitted by counsel for the opposite party No.3 that Dr. Ravi Kapoor had indicated in his affidavit that marks were correctly granted by the opposite party No.3 as well as Dr. Ravi Kumar in practical examination. However, the deep scrutiny of the affidavit filed by the Ravi Kapoor reflects that he admits that the award sheet were corrected by cutting or overwriting as well as by using whitener and the award sheet has been duly signed by both the examiners but nothing has been said relating to overwriting or cutting and interpolation or use of whitener in theory copy. Para 7 of the affidavit of Dr. Ravi Kapoor which has been filed by respondents, University with the counter affidavit as well as by the opposite party No.3 himself alongwith his application for dismissal of writ petition, is reproduced as under:

�that at the time of transferring the marks finally in the Award list, two award list were initially taken up by, we two examiners i.e. the deponent and the internal examiner. It is relevant to point out that out of three �three paged sets� of Award list were provided by the Controller Examination. The deponentvividly remembers that one Roll No. was completely missing on the 2nd page of the Award sheet. We individually had entered these marks on the two Award Sheets, but after coming to the bottom of 2nd page of the list, it was realized by us jointly that on Roll No. was missing. In order to correct the mistake the award sheets were corrected by cuttings/over writings (whereever it was necessary and by using whitener, where it was completely impossible to recorrect the marks entered against the right roll numbers. Therefore, if there are corrections, cuttings in the �2nd page of the two sets of Award list� one is entered by the deponent and second by the internal examiner, in order to maintain correctness of the examinations. Thereafter all the sheets of Award list were duly signed by both the examiners.�

Thus at the face of record the cutting and overwriting have been admitted by Dr. Ravi Kapoor atleast in the Award sheet.

The further submission of opposite party No.2 is that the petitioner was not known to opposite party No.3 and the opposite party No.3 was never introduced by her Mother. It has been further submitted that the petitioner had not passed in the pre professional examination conducted just before 15 or 20 days of the final examination. However, during the course of argument it was submitted by petitioner''s counsel that majority of the students failed in the pre professional examination. It has been further submitted that in practice the University normally does not qualify the students in pre professional examinations. However, both the parties admit that these pre professional examinations are held internally but does not get support from university rules or regulations.

So far as the contention of opposite party No.3 that she does not know the petitioner, seems to be unbelievable. In the supplementary counter affidavit filed by opposite party No.3 dated 6.7.2004 in para 19 it has been admitted that the Mother and Father of the petitioner were patient of opposite party No.3 who were treated by her. In case, the petitioners'' mother is a teacher of same university and also she has been the patient of opposite party No.3 then it is unbelievable that opposite party no.3 was not knowing the petitioner before filing of the present writ petition.

Shri Umesh Chandra, representing opposite party No.3 as well as Shri S.K. Kalia, representing K.G.M. University submits that there is no specific provision of revaluation. It has been further submitted by Senior Advocates that the Forensic report submitted by Government Forensic Lab is opinion and it may not be relied upon. It has been reasserted by Senior Advocates that there should be presumption in acting fairly on the part of University authorities as well as opposite party No.3. Moreover it has been further submitted that in case even if the examiner had made a mistake it can not be interfered while exercising jurisdiction under Article 226 of the Constitution of India. Both the Senior Advocates submit that the petitioner has not disclosed how she has come to know regarding the fault with the answer book as well as award sheets.

An objection has been filed by opposite party No.3 against the report sent by the Government Forensic Laboratory, Mahanagar, Lucknow through a counter affidavit dated 8th July 2004. According to learned counsel for the opposite party No.3 the report does not contain demonstrative photograph or reason for reaching conclusion. From the report it also does not come out as to who has initialed the copies or award sheets. It has been further submitted in the objection that three award sheets were not entered into by one hand.

While assailing the action of opposite parties, Learned counsel for the petitioner, Shri S.P. Singh, Advocate submits that when this Court itself has perused the records and opinion has been obtained from the office of Director, Government Forensic Laboratory, Mahanagar, Lucknow and primafacie it has been found that there was interpolation and manipulation and erasion in copies and awardsheet coupled with the use of whitener, no technicalities should come in the way to dispense justice to the petitioner. He had further invited attention to para 17 of the rejoinder affidavit dated 9th July 2004 and filed in response to short counter affidavit and submits that after receipt of petitioner''s representation, Vice Chancellor had examined the copies personally and found that interpolation, cutting and overwriting were done coupled with use of whitener. Vice Chancellor had convened a meeting of the Head of Departments and higher authorities on 7th April 2004 in which the entire controversy was discussed and after said discussion, each and every fact relating to present controversy has come into knowledge of all concerned persons. Petitioner''s counsel further submits that the Vice Chancellor himself in his order dated 17th April 2004 observed that interpolation has been done. He further submits that the Vice Chancellor acted in compliance of interim order dated 26th April, 2004 passed by this Court while deciding the petitioner''s representation. The interim order dated 26th April, 2004 is reproduced as under:

�Heard Shri Shashi Prakash Singh learned counsel for the petitioner and Shri S.K. Kalia Senior Advocate assisted by Sri K.K. Singh, learned counsel appearing on behalf of opposite parties 1 and 2.

The petitioner has alleged that Dr. K.K. Wadhwani, opposite party No.3 became vindictive to the petitioner and has awarded only 41 percent marks in operative Dentistry. The petitioner has further alleged that she is an outstanding student of her batch.

In view of aforesaid fact, the petitioner is directed to make a fresh representation before the Vice Chancellor, King George''s Medical University, Lucknow within three days from today who shall consider and decide the same, in accordance with law, within ten days thereafter. In the meantime the petitioner shall also make an application for scrutiny by depositing the requisite charges before the authority concerned.

List this petition on 10.5.2004.�

SdU.K.Dhaon�

Learned counsel for the petitioner further submits that Dr. Ravi Kapoor was the external examiner of the first paper of operative Dentistry. In the first paper also admittedly illegal and fraudulent act was detected. In the first paper the petitioner was originally granted 20 marks, as obvious from award sheet, but after receipt of petitioner''s complaint when copies were rescrutinised the petitioner''s marks were found to be 28. Consequently the petitioner had passed the first paper. Accordingly, the submission of the learned counsel for the petitioner is that from the very beginning the opposite party No.3 was in process with predetermination not to permit the petitioner to get success in the examination on one or other grounds.

During the course of hearing learned counsel for the petitioner had moved an application with the prayer that the petitioner may be declared pass on the basis of report submitted by Government Forensic Laboratory, Mahanagar, Lucknow, which has been reproduced in the preceding para.

Petitioner''s counsel further submits that cutting and overwriting and the places where whitener has been used in the award sheet there is no signature of Ravi Kapoor who was the external examiner. The result of pre professional examination was never communicated to the petitioner as well as other students.

PROCEDURE FOR REVALUATION AND PREPARATION OF TABULATION CHART

After hearing the parties'' claim and counter claim it is necessary to understand the procedure adopted by the University to examine the copies as well as for preparation of tabulation chart. Opposite party No.3 alongwith her supplementary counter affidavit dated 6th July, 2004 has filed an affidavit circular of K.G.M. University, Lucknow as Annexure CA1 with the caption �examiners are particularly requested�. On the order of Court, Smt. Tanuja Somwansi, learned counsel for the University has also filed the same circular which was taken on record on 16th July 2004. For convenience the said circular is reproduced under:

�K.G.Medical University, Lucknow

CONTROLLER OF EXAMINATIONS

INSTRUCTIONS TO EXAMINERS

For preparing B.D.S. 1st Professional (main/Supplementary) Examinations

Examiners are particularly requested:

(a) To writ out the total number of marks clearly in figures in the columns indicated.

(b) Not to over write or apply white ink on any marks

(c) Any correction if required should be made after crossing the marks with a single line.

(d) To initial all corrections without exception.

(e) Not to give any fractional marks.

(f) To sign each page of the result sheet collectively.

(g) To prepare three copies of the award list.

GENERAL SCHEME OF MARKS

Theory Theory Total of Oral & Total of

Part1 PartII theory pract theory/Pract

Max 50 50 100 100 200

Min 50 50 100

Smt. Tanuja Somwansi, learned counsel for the respondents K.G.Dental University has also filed a circular containing the procedure for grant of marks in award sheet or tabulation chart with the caption �process for interim marks and award sheet and tabulation chart�, which is being reproduced as under:

KING GEORGE''S MEDICAL UNIVERSITY

LUCKNOW

Process for entering Marks in Award Sheet and Tabulation Chart

The process that is followed is as follows:

The head examiner, usually the Head of the Department, is asked to enter marks awarded to students in award sheets. The award sheets are to be prepared in 3 copies and are to be sent to.

a. Tabulator 1

b. Tabulator 2

c. Officer I/c Results

Copy of letter to Head examiner and instructions to examiners is enclosed.

The marks are entered into the computer program from the copy that has been sent to the Officer I/c Result. The computer Program automatically prepares tabulation charts.

Two sets of Tabulation Chart with marks entered on them are printed and sent to the Tabulators. Copy of letter to Tabulators and instructions are enclosed.

Both Tabulators independently verify the correctness of the tabulation chart and point out any discrepancy.

In case of discrepancy in marks entered into the computer, the computer entry is corrected.

In case of discrepancy in marks awarded by the examiners in 3 sets of award sheets the marks common in two out of three award sheets are taken as final and corresponding correction is made in the entry of marks in the computer if required.

In case of discrepancy in marks awarded by the examiners in all 3 award sheets the matter is referred to the Head examiner, and corrections made accordingly.

Once the tabulators are satisfied with entry of marks in their tabulation chart, they sign their tabulation charts and return them to the officer I/c Results.

The two tabulation charts are checked for any discrepancies by the collators, who sign both the tabulation chart.

Both the tabulation charts are counter signed by the Officer I/c Result, Controller of Exams & vice Chancellor.�

Provision relating to preparation of tabulation chart has been also provided. Format of letter has been also sent to all the head of departments of the University which directs all the examiner to submit three copies of award sheet. A format of letter is reproduced as under:

�CONTROLLER OF EXAMINATION

KING GEORGE''S MEDICAL UNIVERSITY,

LUCKNOW.

Ref. No�........��

Dated.................

To,

Prof. Head, Dept. of

K.G.''s Medical University,

Lucknow.

Ref. BDS������Professional�����..Regular Examination in�����..under Your supervision

Dear Dr������

Please find enclosed 3 copies of the award sheet for marking students. The award sheets duly completed may please be forwarded in sealed cover to the following by name. The result should be sent within 48 hours of completion of the examination.

Prof. R.K.Singh, Prof. Department of Oral & Maxillofacial Surgery (Tabulator).

Prof. Kapil Loomba, Prof. Department of Operative Dentistry (Tabulator)

Prof. S.K. Das, Officer Incharge Results, Prof. Department of Medicine.

Please make sure that no copies of result rough or final are kept by you. The Examination answer books may also be sent alongwith to the controller of Examination.

Yours Sincerely

(S.K. Das)

Officer I/c Results�

The opposite party No.3 had not denied that cutting overwriting was forbidden by the aforementioned circular of respondent university. However it has been stated in para 22 of the counter affidavit dated 6th July 2004 that it was introduced for the first time in the University that overwriting and whitener shall not be used. In para 3 of the affidavit dated 6th July 2004 it has been submitted by opposite party No.3 that prior to issuance of said circular there was no restriction on the examiners to do overwriting or cutting or use whitener. However, it is not disputed that the aforementioned circulars and letters were very well applicable in the present examination the result of which has been impugned by the petitioner.

It was argued learned counsel for the opposite parties that the affidavit has been incorrectly sworne on the basis of personal knowledge. It has been further submitted by respondents'' counsel that in the absence of disclosure of source of knowledge writ petition must fail. Rebutting at the allegations Shri S.P. Singh, Advocate, had submitted that when in pursuance to order passed by this Court Vice Chancellor himself had examined the copies and thereafter he had called a meeting on 7.7.2004 all the Head of Department where the matter was discussed then factum relating to interpolation etc. came into knowledge of every concerned person. It is apparent from the order dated 17th May 2004 passed by the Vice Chancellor. Relevant portion of the said order is reproduced as under:

�I have gone through the record and informations placed before me in respect of examination of Operative Dentistry theory paper and award sheet. Scrutiny revealed that total marks of the student change theory paper in partIA perusal of the answer book partII and award sheet reveals that cutting and over writing has been done by the examiner. In the light of the legal opinion from the Senior Advocate, I was satisfied that it was a fit case that the Vice Chancellor should take steps for correct assessment of the theory paper and also reexamination of practical, if necessary.�

The submission of the learned counsel for the petitioner has got force. Once while deciding the representation the Vice Chancellor had seen the copies and discussed the matter in the meeting of all head of the Departments and at later stage it was placed before the executive council then it can not be said that the factum relating to tempering or overwriting or cutting or use of whitener in the copies and awards sheet could not have been known to petitioner or the persons who were concerned with the University. Accordingly I do not find any reason to throw away the writ petitioner on this ground. Moreover, once in pursuance to order passed by this Court the records were produced and perused by the court as well as parties'' counsel and their Photostat copies were given to the petitioner counsel as well as to the counsel of opposite parties No.3, then raising of such objection as a ground for dismissal of writ petition shall not be sustainable.

MATERIAL AND EVIDENCE RELATING TO INTERPOLATION, CUTTING, ERASION AND USE OF WHITENER IN THE COPIES AND AWARDSHEET.

It has been categorically pleaded by learned counsel for the respondent No.3 that firstly no cutting or erasion was done by him and secondly wherever the cutting or overwriting was done the relevant portion were duly signed by opposite party No.3. Contrary to stand taken by opposite party No.3 Dr. Ravi Kapoor had admitted that the cutting, overwriting and erasion were done by the examiner and whitener was also used atleast on award sheet. Thus at the face of record the pleading of opposite party No.3 is not specific and is conflicting in nature.

From the pleading on record as well as on the basis of perusal of original record the following material proof beyond doubt that cutting, erasion and overwriting were done in the copies as well as in the award sheets, whitener was used in violation of universities'' circular and order reproduced in the presiding para.

The following facts and material prove beyond doubt that the opposite party No.3 had not examined the copies with prescribed standard and in accordance to circular of the University reproduced hereinabove.

(a) The Vice chancellor of the King George Medical University himself after perusal of record had given a finding that cutting, overwriting were done by the examiner and whitener was used. The relevant portions were not signed by the examiner.

(b) When this Court on 24.5.2004 had examined the copies in the presence of parties'' counsel it was found that at several places where cutting and overwriting were done the examiner had not signed, erasion was done and whitener was used without any counter signature of examiner.

(c) In the practical paper of operative dentistry petitioner has been awarded 42 marks after use of whitener/erasion when the award sheet was perused by placing it before lamp light. It reflects that in the practical examination of operative dentistry the petitioner was awarded 52 marks which has been later on changed to 42.

(d) The original marks granted in the practical paper of operative dentistry is visible from original record i.e. award sheet. The forensic expert of Government Laboratory, Mahanagar, Lucknow has also given a finding that the petitioner was originally given 53 marks in the practical examination of operative dentistry.

(e) In first theory paper of operative dentistry the petitioner was originally granted 20 marks, and 20 marks has been entered in the award sheet. When after receipt of petitioner''s representation the first paper of operative dentistry was placed for scrutiny, the marks were increased from 20 to 28. This was done while considering the petitioner''s application for scrutiny in pursuance to order passed by this Court. This reflects that for some extraneous purpose the petitioner''s marks were not correctly recorded in the award sheet.

(f) Interpolation, overwriting and cutting has been done on the marks granted against each and every question of the second paper of operative dentistry, which can not be done in normal circumstances.

(g) In the second paper of operative dentistry according to report of forensic expert in question No.1 the petitioner was originally awarded 12 marks which has been changed by overwriting to 8 marks in question No.2 she was awarded 10 marks which has been changed to 8 marks. In question No.3a the marks have been changed by overwriting or erasion to ''0'' but it could not be deciphered. In question No.3b the petitioner has been granted originally 4 marks which has been changed to ''0'' marks and question No.3c the petitioner has granted 4 mark which has been changed to 2 marks. Accordingly, originally petitioner was granted not less than 30 marks (since originally marks in question No.3a could not be deciphered by the Laboratory). However as per result declared by opposite party No.3 in second paper of operative dentistry the petitioner has been given only 21 marks.

(h) The finding given by the Government Forensic Laboratory, Mahanagar, Lucknow got support from the perusal of original record itself.

(i) The perusal of front page of the copy of IInd paper of operative dentistry speaks volume. It reflects marks have been lowered down by overwriting and interpolation.

(j) Affidavit of Dr. Ravi Kapoor does not inspire confidence. He had stated that initially only two award sheets were prepared and every cutting was signed by both examiners. But according to circular of the University three identical award sheet should have been prepared from very beginning and the record shows that both the examiner had not signed at each and every place where cutting, erasion interpolation has been done or whitener has been used.

(k) Cutting, overwriting, erasion or whitener has been used, though these are prohibited by circulars of respondent University.

Accordingly interpolation overwriting and cutting in the second paper of operative dentistry as well as award sheet at the face of record shows that the petitioner was not dealt with fairly by the examiner while evaluating the copies of both the theory paper of operative dentistry as well as during the preparation of award sheet.

JURISDICTION UNDER ARTICLE 226

Under the above facts and circumstances and material on record now the question arises what is the extent of power under Article 226 of the Constitution of India to decide the controversy where injustice has been caused to a student more so when right of education has been declared as a fundamental right by Hon''ble Supreme Court (J.P. Unni Krishnan and others v. State of Andhra Pradesh and others, 1993 (1) SCC 645), subject to financial constraint. It was submitted by learned counsel for the petitioner that there is no provision for evaluation of copies hence this Court can not interfere with the present controversy or may pass an order declaring the petitioner as successful candidate or to direct for revaluation of copies. Accordingly, it is necessary that the scope of ambit of power conferred under Article 226 of the Constitution of India should be discussed in nutshell.

A writ lies not only for issuance of prerogative writs but also for other purposes.

Hon''ble Supreme Court in a case reported in AIR 1959 SC 149, Basheshar Nath v. Commissioner of Income Tax and another held as under:

�Para 21: The preamble to our Constitution, Article 13 and the language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America, no distinction can be drawn here, as has been attempted in the United States of America, between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy, Ours is a nascent democracy and situated as we are, socially economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution.�

�Para 25: The object sought to be achieved was as the preamble to the Constitution states" to secure to all its citizens; JUSTICE social, economic an political; LIBERTY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation�: and Article 13 provided:

�13. (1) all laws in force in the territory of India immediately before the commencement of this constitution in so far as they are inconsistent with the provision of this part, shall, to the extent of such inconsistency, be void.

(2) The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void��..�.

�Laws in force� were defined in Article 13(3) to include;

�Laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.�

and they were declared void, in so far as they were inconsistent with the provisions of this Part, to the extent of such inconsistency. As regards laws to be enacted after the commencement of the Constitution, the State, in the wider significance of the term as including �the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India� (vide Article 12) was enjoined not to make any law made in contravention of this clause was to the extent of the contravention declared void. It will be seen that the prohibition was thus effective both against past laws as well as future laws and both were equally void in so far as they were �inconsistent with� or �in derogation of� the fundamental rights enshrined in Part III of the Constitution. No distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention as the case may be leaving the unoffending parts thereof untouched.�

�Para 90: A large majority of our people are economically poor, ''educationally backward and politically not yet conscious of their rights. Individually or even collectively, they can not be pitted against the State organizations and institutions, nor can they meet them on equal terms. In such circumstances, it is the duty of this Court to protect their rights against themselves. I have, therefore, no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature, conceived and enacted in national and public interest, and therefore can not be waived.

Hon''ble Supreme Court in a case reported in AIR 1966 SC 81, Dwarka Nath v. Income Tax Officer and another, while pronouncing the scope of Article 226 of Constitution of India held as under:

�Para 4: We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads:

����every High Court shall have power throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including in appropriate cases any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.�

This Article is couched in comprehensive phraseology land it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It 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� for the said 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 Court can also issue directions, orders or writs other the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this Country. Any attempt to equate the scope of the empower of the High Court under Article 226 of the Constitution with that of the English Courts to issued 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 defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the Article and others may be evolved to direct the Article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa, 19551 SCR 250: (AIR 1954 SC 440) and Irani v. State of Madras, 1962(2) SCR 169: (AIR 1961 SC 1731).�

In the famous Minerva Mills Ltd. v. Union of India, case reported in AIR 1980 SC 1789, the Apex Court held that the High Court can substitute its own finding in case an action is found to be wrong. The controversy was relating to Government right to exercise power under Article 352 of the Constitution of India but the Supreme Court had given emphasis to exercise power to preserve the constitutional rights of the people of country. For convenience relevant portion from Minerva case (supra) is reproduced as under:

�Para 79: Three Articles of our Constitution, and only three stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Article 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this Country an assurance that the promise held forth, by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.�

�Para 103: It will be convenient at this stage to consider the question as to whether and if so to what extent, the Court can review the constitutionality of a procalamation of Emergency issued under Article 352 Cl. (1). There were two objections put forward on behalf of the respondents against the competence of the Court to examine the question of validity of a proclamation of Emergency. One objection was that the question whether a grave emergency exists whereby the security of India or any part thereof is threatened by war or external aggression or internal disturbance is essentially a political question entrusted by the Constitution to the Union Executive and on that account, it is not justiciable before the Court. It was urged that having regard to the political nature of the problem, it was not amenable to judicial determination and hence the Court must refrain from inquiring into it. The other objection was that in any event by reason of Cls. (4) and (5) of Article 352, the Court had no jurisdiction to question the satisfaction of the President leading to the issue of a proclamation of Emergency or to entertain any question regarding the validity of the Proclamation of Emergency or its continued operation. Both these objections are in my view unfounded and they do not bar judicial review of the validity of the Proclamation of Emergency issued by the President under Article 352 Cl. (1). My reasons for saying so are as follows.�

�Para 104: ��So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so, I have said before, I repeat again, that the Constitution is suprema lex, the paramount, law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority and whether it has done so or not for the court to decide. The Court is the ultimate interpreter of the Constitution and when there is manifestly unauthorized exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of constitutional values. The Court''s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. �Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too.� The Court can not be and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this Country�������.�

In a case reported in 1965 SC 1150, Devilal v. Sales Tax Officer, Hon''ble Supreme Court held that an application under Article 226 of Constitution of India can not be refused on mere ground that application is not in proper form. The relevant portion from the Apex Court judgment is reproduced as under:

�There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Article 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Article 226 in support of a citizen''s fundamental rights, the High Court will not hesitate to exercise that jurisdiction.�

Hon''ble Supreme Court in a case reported in AIR 1981 SC 344, Fertiliser Corporation Kamagar Union (Regd.). Sindri and others v. Union of India and others, while considering the power under Article 32 as well as 22 of the Constitution of India held that the power under Article 32 can be used for enforcement not only fundamental right but also for any other purpose. For convenience, relevant portion from Fertiliser''s case is reproduced as under:

�Para 10: Article 32 of the Constitution which guarantees by Clause (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, provides by Clause (2) that:

�The Supreme Court shall have power to issue direction or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.�

It is manifest that the jurisdiction conferred on this Court by Article 32 can be exercised for the enforcement of the rights conferred by Part III and for no other purpose. Clause (1) as well as Clause (2) of Article 32 bring out this point in sharp focus. As contrasted with Article 32, Article 226(1) of the Constitution provides that:

�Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of then, for the enforcement of any of the rights conferred by Part III and for any other purpose.�

The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Article. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.�

In case reported in 1999 (6) SCC 464, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, Hon''ble Apex Court while exercising the power of High Court relating to the judicial review held as under:

�Para 59����..Every decision of the authority except the judicial decision is amenable to judicial review and reviewability of such a decision can not now be questioned. However, a judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. On the principle of good governance reference was made to a decision of the Division Bench of the Bombay High Court in State of Bombay v. Laxmidas Ranchhoddas (AIR Bom at p. 475) (Para 120). It was submitted that bad governance sets a bad example��..�

NON AVAILABILITY OF ALTERNATIVE REMEDY

There is one more reason while this Court should interfere in the present controversy while exercising jurisdiction under Article 226 of the Constitution of India. Section 69 of the U.P. States Universities Act bars jurisdiction on Civil Court. For convenience Section 69 of the States Universities Act is reproduced as under:

�69. Bar of suit No suit or other legal proceedings shall lie against the State Government or the Director of Education (Higher Education) or the Deputy Director (as defined in Section 60A) or the authorized Controller or the University or any officer, authority or body thereof in respect of anything done or purported or intended to be done in pursuance of the Act or the Rules or the Statutes or the Ordinance made thereunder.�

In view of above, the petitioner''s claim should not be thrown out by accepting the submission of the learned counsel for the respondents not to exercise jurisdiction under Article 226 of the Constitution of India.

From the proposition of law discussed hereinabove pronounced by Hon''ble Supreme Court as well as in view of bar provided by Section 69 of the U.P. States Universities Act, this Court should not decline to interfere with the present dispute where overwriting, cutting, erasion has been done in petitioner''s theory papers as well as award sheet in violation of circular issued by the University. The opposite party No.3 had not followed the circular issued by the University and it appears that for extraneous reasons the examiner has used whitener as well as erased the theory copies as well as the petitioner''s award sheet of practical examination. He had not signed the places where cutting and overwriting have been done in the copy. Instead of submitting fair reply and accepting wrong done to the petitioner a defence was taken during the course of argument that wherever a cutting or overwriting, erasion exists or whitener has been used and have been not signed by opposite party No.3 they were not done by the opposite party No.3. The opposite party No.3 may not be given an option to blow hot blow cold while defending his cause. The conflicting pleading and argument of opposite party no.3 itself speaks volume.

Whenever young generation particularly the students come to this Court, this Court is always slow to interfere in the examination matter. The petitioners had raised allegation against examiners relating to the incorrect granting of marks. In the present case prima facie evidence on record shows that the student has been not dealt with by the examiner fairly. This Court while exercising jurisdiction under Article 226 of the Constitution of India can not shirk from his responsibility to interfere and provide justice to the young generation. The passage of justice can not be blocked for the students to save the prestige of higher authorities or institution or the Universities. In case prima facie material on record shows unfair and unethical practice on the part of examiner or University the noninterference by this Court will increase the unfair activities and corruption to manifold creating injustice to the people as well as young generation and also result into chaos in the society, more so when the morality is deteriorating day by day to lowest ebb.

Time has come when this Court should exercise its jurisdiction to scrutinize the activities of higher authorities more closely then earlier time to check and tone up the administration to meet constitutional goal as per preamble and Directive Principles of State policy.

Shri Umesh Chandra, learned senior Advocate while defending the cause of respondent No.3 had relied upon the judgment of Apex Court reported in (1984) 4 SCC 27, Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth and submits that this Court can not direct for revaluation of copies nor can sit in the judgment over the wisdom of policy evolved by University through subordinate legislation.

The proposition of law as advanced by learned Senior Advocate is not a disputed question, ofcourse this Court can not sit in the judgment over the policy makers or the University which prohibits revaluation of copies but the question survives for consideration in case the authorities does not act fairly and indulged in fabrication of records then whether this Court should be moot spectator. Of course the answer will be negative. One other judgment relied upon by the learned counsel for the respondents is Division Bench Judgment of this Court reported in 1994 LCD 349, Lucknow University v. Sanjay Sharma, an issue before the Division Bench in the said case was relating to withdrawal of facility of revaluation. The Division Bench of this Court while dismissing the writ petition had upheld the right of University to withdraw the facility of revaluation. However, while dismissing the writ petition the Division Bench itself had perused the records of the petitioner''s of that case and nothing adverse was found. The relevant portion from Division Bench judgment in a case of Sanjay Sharma (supra) has held as under:

�Learned counsel for the respondentspetitioner 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 cosunsel for the respondentpetitioner fails. Thus we find that the writ petition was liable to be dismissed.�

Smt. Tanuja Somwansi, learned counsel for the respondents, King George Dental University while defending the action of opposite parties, submitted that the present writ petition is not maintainable and disputed question of fact can not be adjudicated upon.

The submission of the learned counsel for the respondent does not impress under the facts and circumstances of the case, once prima facie interpolation, manipulation of record and fraudulent acts are found by this Court, not only on the basis of perusal on record but also from other material on record like observation of Vice Chancellor of University itself and the report submitted by Forensic lab of the Government Forensic Laboratory, Mahanagar, Lucknow. The denial to interference in the present case will result into serious miscarriage of justice and shall give wrong signal to the entire society and country.

Hon''ble Supreme Court in the case reported in 2003 (8) SCC 311, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and others, proceeded to held as under:

�13. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by works or letter. Although negligence is not fraud but it can be evidence on fraud.

In lazarus Estates Ltd. v. Beasley, the Court of appeal stated the law thus:

�I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.�

In S.P. Chengalvaraya Naidu v. Jagannath, this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.�

In one another case reported in 2003 (8) SCC 319, Ram Chandra Singh v. Savitri Devi and others, Hon''ble Supreme Court proceeded to hold as under:

�Para 15: Commission of fraud on Court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.

Para 16: Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.

Para 17: It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

Para 18: A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

Para 23: An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.

Para 33: Once it is held that a judgment and decree has been obtained by practicing fraud on the court, it is trite that the principles of resjudicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of the appellant for all times to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.�

In one another case reported in (1994) 1 SCC 1, S.P. Chengalvaraya Naidu v. Jagannath and others, Hon''ble Supreme Court held that a fraud is an act of deliberate deception for some extraneous reasons. A decree or judgment obtained by fraud is nullity and nonest.

In view of settled proposition of law and on account of prima facie material on record relating to interpolation, fabrication and changing of marks the writ petition deserves to be decided on the basis of material on record and it can not be thrown out for any hypertechnical ground.

Hon''ble Supreme Court in similar circumstance in a case reported in 1987 (1) SCC 227, Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others held that it shall be in public interest to investigate an allegation of fraud etc. in educational institutions. For convenience para 36 and 37 is reproduced as under:

�The allegations made in the petition disclose a lamentable state of affairs in one of the Premier Universities of India.The petitioner might have moved in his private interest but enquiry into the conduct of the examiners of the Bombay University in one of the highest medical degrees was a matter of public interest. Such state of affairs having been brought to the notice of the Court, it was the duty of the court to the public that the truth and the validity of the allegations made be inquired into. It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumes the character of public interest litigation and such an enquiry can not be avoided if it is necessary and essential for the administration of justice.

The allegations of the petitioner have been noted about the role of the Chief Minister. It is well to remember that Rajagopala Ayyangar, J. speaking for this Court in C.S. Rowjee v. APSRTC observed at page 347 of the report that where allegations of this nature were made, the Court must be cautious. It is true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. This Court made these observations as early as 1964. It is more true today than ever before. But it has to be borne in mind that things are happening in public life which were never even anticipated before and there are several glaring instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice. In the said decision the Court noted that it is possible to decide a matter of probabilities and of the inference to be drawn from all circumstances on which no direct evidence could be adduced. The court further noted that it was somewhat unfortunate that allegations of mala fide which could have no foundation in fact were made and several cases which had come up before this Court and other courts and it had been found that these were made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of which might at least stick. It is therefore the duty of the Courts, warned this Court in the said decision, to scrutinize these allegations with care so as to avoid being in any manner influenced by them in case where they have no foundation in fact. In this task which is cast on the courts it will be conducive to have disposal and consideration of them if those against whom allegations are made came forward to place before the court either the denials or their version of the matter so the courts might be in a position to judge whether the onus that lay upon those who make allegations of mala fides on the part of the authorities had been discharged in proving it. Ofcourse, the facts in the instant case are different. It is true that the basis of the allegations being the affidavit of Dr. Mishra was considered by the learned Single Judge as well as the Division Bench to be thoroughly unreliable. In this case there was specific and categorical denial by the erstwhile Chief Minister that tampering was done at his behest. Therefore, while the court should be conscious (siccautious) to deal with the allegations of mala fide or cast aspersions on holders of high office and power, the court can not ignore the probabilities arising from proven circumstances.�

There are catena of decisions where while exercising extraordinary jurisdiction of Article 226 of the Constitution of India this Court and other High Courts interfered with the marks granted by the examiners on the ground that in spite of giving correct answers the examinees were not awarded correct or actual marks by the examiner for various reasons. Some of the cases have been reported in:

AIR 1981 Allahabad 287, Krishana Kumar Roy v. State of U.P. and others.

AIR 1983 SC 1230, Kanpur University v. Sameer Gupta.

(1998) 2 UPLBEC 1501, Vaibhav Pandey v. Board of High School.

1989 (2) UPLBEC 205, Pankaj Bhalla v. State of U.P. and others.

2001 (19) LCD 598, Aastik Kumar Pandey v. Director/Chairman, Board of High School and Intermediate Examination.

(2001) 1 UPLBEC 31, Saurabh Kumar Gupta v. State of U.P. and others.

1985 UPLBEC 734, Km. Renu Sharma v. Madhyamik Shiksha Parishad and others.

AIR 1990 Patna 196, Shivdhari Prasad Shah v. State of Bihar and others.

The opposite party No.3 while defending his action had proceeded to submit that she had not done any interpolation or manipulation and where cutting or overwriting has been done it has been initialed by her. She had further proceeded to blame the petitioner herself that interpolation and manipulation were done by her. For convenience, para 9 and 10 of the supplementary counter affidavit dated 6th July 2004 filed by petitioner is reproduced as under:

�9. That the petitioner has alleged manipulation and interpolation of marks in Operative Dentistry and verified this averment to the best of her knowledge, which means that she has had access to answer books at some point of time.

The deponent is advised to state that unless the petitioner was shown the answer books by someone the petitioner could not make any averment that there was any manipulation and interpolation in awarding marks to her.

The answer books after the examination is over are sealed by the Examiners and the deponent submits that here was no manipulation and interpolation if there is any wrong overwriting or cutting in any of the answer books and any manipulation and interpolation done, it may be attributed to the petitioner''s mother and father. The mother of the petitioner is a professor of Paediatrics in the KGMU, Lucknow.�

That the deponent has not made any manipulation and interpolation and if any cutting has been done by the deponent the same should have been initial by her. The general practice of the deponent has been is that either she would initial all the cuttings or not at all.�

A defence taken by opposite party No.3 seems to be in conflict with the statement made by Dr. Ravi Kapoor in his affidavit. No signature or initial has been found in theory copy of the IInd paper of Operative Dentistry where cutting, overwriting interpolation have been done.

Thus from the perusal of original record of the petitioner it is borne out that even in first paper of Operative Dentistry marks were increased from 20 to 28 then what was the reason that no step was taken by the respondents University to correct the marks as per original performance of the second paper of operative dentistry?

Why during the course of practical examination held by Vice Chancellor of the KGMU, Dean Faculty of same department was directed to be present as convenor or supervisor? Whether the practical examination could not have been held in an affiliated College or other University?

From the material and facts on record though not necessarily but inference may be drawn that no effective step was taken by the respondent University resulting in serious miscarriage of justice committed to the petitioner to save the prestige of the University.

Next question arises what step should be taken to provide justice to the petitioner. Whether action taken by the Vice Chancellor should be accepted or respondents may be directed to declare the petitioner''s result on the basis of report submitted by Government Forensic Laboratory, Mahanagar, Lucknow or respondents may be directed to hold fresh examination by independent agency or as prayed writ petition may be dismissed as no revaluation can be done.

So far as the reliance over the result prepared by the Vice Chancellor on the basis of subsequent examination is concerned may not be acted upon mainly for following reasons:

(i) Though the Vice Chancellor had held fresh examination of theory papers by outside agency where none of the member of petitioner''s own department was involved but a fresh practical examination was held at short notice in the presence of Dean Faculty of Dental Sciences of the University itself. The holding of fresh practical examination seems to be known to all the concerned.

(ii) The Vice Chancellor had not taken any step to work out what was the original marks granted to petitioner in theory and practical papers of operative dentistry.

(iii) The Vice Chancellor had acted without jurisdiction by holding a fresh examination and action taken in violation of law in normally should not be approved by this Court in case there is way out to provide justice.

(iv) The decision of Vice Chancellor was rejected by the Executive Counsel of the University, which is the Apex Body. However in such circumstances it was the duty of Executive Counsel to take suitable steps to impart justice to the petitioner.

(v) Perusal of original copy and award sheet speaks volume and actual marks can be noticed or deciphered.

(vi) Prima facie evidence shows that the examiner had acted for some extraneous reasons and in violation of University circular by doing cutting and overwriting in the copies as well as award sheet and used whitener coupled with erasion at various places.

Under the above facts and circumstances the only reasonable option seem to be before this Court is to accept the report dated 28.5.2004 sent by the Government Forensic Laboratory reproduced in the presiding para. The report of the Government Forensic Laboratory got support from the perusal of original record as well as observation made by the Vice Chancellor of the respondents'' University in his letter dated 26.5.2004.

Section 56 of the Indian Evidence Act, 1872 provided that the facts which are judicially noticeable need not be proved. For convenience Section 56 of the Act is reproduced as under:

�Fact judicially noticeable need not be provedNo fact of which the court will take judicial notice need be proved.�

Moreover, Section 73 of the Indian Evidence Act, 1872 empowers the court to ascertain certain signature, writing etc. on its own by perusal of record.

Needless to say that the perusal of original records by this Court support the finding given by Government Forensic Laboratory, Mahanagar, Lucknow hence, requires no further proof.

The material on record, like observation of Vice Chancellor in his order dated 17.4.2004 as well as the observation of Court by perusal of record are relevant factors which are consistent with the opinion of the Government Forensic Lab, Mahanagar, Lucknow. Accordingly, in pursuance to provision contained in Section 46 of the Indian Evidence Act, the report of the Government Forensic Laboratory can be validly accepted. Section 45 and 46 of the Evidence Act are reproduced as under:

�Opinions of experts When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in question as to identity of handwriting] [or finger impressions] are relevant facts.

Such persons are called experts.

Facts bearing upon opinions of experts facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.�

This Court while exercising jurisdiction under Article 226 of the Constitution of India may draw inference relating to the existence of certain facts from the material placed before it by the parties. The report submitted by the Government Forensic Laboratory, Mahanagar, Lucknow seems to be correct one and got support from perusal of original record.

Hon''ble Supreme Court in a case reported in AIR 1967 SC 450 Srichand K. Khetwani v. State of Maharastra, held that in case from the material on record High Court can simply draw an inference then even the opinion of expert was not necessary. For convenience para 8 and 9 of the judgment of Srichand (supra) is reproduced as under:

�(8). Karmik''s statement that the appellant had written the endorsement on the postal receipt has been accepted by the High Court. It is not necessary to examine an handwriting expert in every case of disputed writing. The investigating officer stated that he did not send the specimen writing of the appellant for comparison with the endorsement on the postal receipt as he could not secure admitted writing of the appellant though he tried his best to obtain his admitted handwritings. He was... no further question to explain why he considered it necessary to have admitted writings of the appellant in order to obtain the opinion of the handwriting expert about the disputed writing when specimen writing of the appellant were available. The explanation of the investigating officer seems to have been on account of practice. It appears from his statement that he sent certain questioned documents along with the admitted handwritings and specimen handwritings, signature and initials of accused Nos.1 and 2 the Government Examiner of questioned documents. The practice may be sound or not but the bona fides of the conduct of the investigating officer cannot be questioned. The High Court, however further considered that the material provided by the writing on the acknowledgement receipt was very scanty and the investigating officer might have felt that the subsequent handwriting would be feigned or disguised and that any comparison with the same would be deceptive. Such considerations might have been in the mind of the investigating officer but he had to state them to be his reasons for not obtaining the opinion of the hand writing expert. The High Court can not be said to have been in error in taking these further reasons into consideration in holding that no adverse inference can be drawn against the prosecution of the fact that the opinion of the handwriting expert has not been obtained with respect to the endorsement on the acknowledgement receipt.

(9). Further, an adverse inference against the prosecution can be drawn only if it withheld certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence would have been and, therefore, no question to presume that evidence would have been against the prosecution, under Section 114, Illustration (g) of the Evidence Act, can arise.

MARKS IN THEORY AND PRACTICAL PAPERS OF OPERATIVE DENTISTRY

According to report dated 28.5.2004 sent by Joint Director, Government Forensic Laboratory, Mahanagar, Lucknow, petitioner''s marks deciphered in the three award sheets and the second paper of operative dentistry are discussed hereinafter.

There are three award sheets supposed to be identical:

(a) In award sheet marked by Forensic Expert as Q 1 original marks allotted in the theory second paper to the petitioner was 30 converted into 20 marks. Total marks granted in theory paper was 50 converted into 40 marks. Total marks in the practical of operative dentistry was 53 converted into 42. Total marks in the paper of operative dentistry including theory paper and practical paper was 103 converted into 82. Conversion has been done by erasion and use of fluid as well as overwriting after obliterating the original record.

(b) In the Award sheet marked by Forensic Expert as Q 2 total marks in second theory paper of operative dentistry was 30 converted into 20 marks. Total marks in theory paper of operative dentistry (Ist and IInd paper) was 50 converted into 40. Total marks in practical paper of operative dentistry was 53 converted into 42. Total marks in both the paper of Operative Dentistry including practical paper was 103 converted into 82. Conversion has been done by erasion and use of fluid as well as overwriting after obliterating the original entry.

(c) In the Award sheet marked as Q 3 by the expert total marks in second paper of operative dentistry was 30 converted into 20. Total marks in theory paper of operative dentistry (Ist and IInd paper) was 50 converted into 40. Conversion has been done by erasion and use of fluid as well as overwriting after obliterating the original marks.

According to report of Forensic Expert the original marks granted by examiner at the time of evaluation of copy in the IInd paper of operative dentistry are as under:

(a) At front page of the copy where marks are to be entered in respective column erasion has been done by the use of fluid. Original marks have been obliterated in Q No.1 and 2, 8 marks have been awarded after erasion and use of whitener which can not be deciphered by the expert.

In the column of Q No.3 the original 8 marks has been changed by use of fluid and erasion to 4 marks.

(b) At the front page of the copy total marks entered by the examiner was 30 which has been changed by overwriting to 20. Accordingly, the original marks have been obliterated by overwriting and cutting. No signature on the overwritten portion.

(c) In the copy in Q No.1 the total marks granted to the petitioner was 12 which has been changed to 8 marks. Similarly in Q No.2 the total marks granted was 10 which was changed to 8. Expert could not deciphered the marks granted to the petitioner in Q No.3A because of erasion or overwriting. In Q No.3B petitioner was granted 4 marks which was changed to 2 marks by the examiner. In Q No.3C petitioner was granted 4 marks which has been changed to 2 by the examiner.

Thus the original marks granted each and every question has been changed by cutting, overwriting and interpolation.

From the perusal of original record by the Court the following facts came into light.

(a) In the award sheet which was marked by the expert as Q No.1, original marks granted to the petitioner in theory second paper seems to be 30 and total marks in theory paper seems to be 50 which has been converted into 20 and 40 respectively. The total marks in practical examination has been originally recorded 53 which has been changed to 42. This have been done by overwriting. 30 marks in theory second paper and total 50 marks in theory paper (Ist and IInd paper) as well as 53 marks in practical paper of operative dentistry can be noticed by careful scrutiny of award sheet marked as Q 3 by the examiner. The total marks in the paper of operative dentistry (which includes theory and practical paper) was originally recorded as 103 marks but it has been changed by erasion or use of whitener to 82. These facts can be noticed by careful scrutiny of marks through naked eye or by use of magnifying glass or by looking the award sheet from back side in the lamp light.

(b) In the award sheet which has been marked by Forensic Expert as Q 2 the original marks as per observation made hereinabove relating to award sheet marked as Q 1 is affirmed again by careful perusal of award sheet by naked eyes as well as by magnifying glass or in the lamp light from back side. The report given by the Forensic Expert seems to be correct.

(c) In the award sheet marked as Q 3 by the expert, in theory second paper erasion has been done with the use of fluid and 30 marks seems to be converted into 20. Similarly the total marks of the theory paper has been made 40 by use of fluid and erasion. Though by naked eye the original marks is not identifiable. Similarly the total marks granted in practical paper in the award sheet as Q 3 is not identified by the naked eye.

(d) In the second paper of operative dentistry when the copies are perused it has been found that at front page the original marks recorded in Q No.1 and 2 has been erased and thereafter recorded 8 marks in each question. Adjacent to Q No.3 fluid has been used. However by naked eye it can be seen that the petitioner was granted in Q No.3, 8 marks.

The total marks in the second paper of operative dentistry has been recorded as 20 by overwriting and cutting. A careful scrutiny of the total marks shows that originally petitioner was granted 30 marks but by cutting and overwriting it has been converted in to 20. There is no signature of the examiner over the total marks recorded in the front page of operative dentistry. However, total marks seen by magnifying glass or in the lamplight it can be deciphered to 30.

(e) While perusing the copy it was found that while granting the marks in Q No.1 the original marks have been erased and overwriting has been done and rewritten as 8 marks. Similarly Q No.2 interpolation and overwriting has been done and there is no signature over the cutting marks has been changed to 8 marks. In Q No.3 A the original zero marks have been granted but at the face of original record seems to be manipulation and no signature found over the cutting an original marks. In Q No.3B there is overwriting and cutting over the original marks seems to be 4 marks but petitioner has been granted 2 marks. In Q No.3 C there is overwriting and cutting in the original marks which seems to be 4 marks in case carefully scrutinize in the lamp light or with the use of magnifying glass, but the examiner had granted 2 marks. There is no signature over cutting or overwritten at the relevant place.

Thus on the basis of report sent by Forensic Laboratory, Mahanagar, Lucknow and from the perusal of record petitioner''s total marks at the face of record seems to be as under:

Subjects Marks granted

Theory First Paper 20

Theory Second Paper 30

Total in theory First and Second paper 50

Oral and Practical 53

Total marks in theory and practical 103

In the first theory paper of operative Dentistry the petitioner''s total marks was recorded as 20 but from the original copy of the first theory paper of the operative dentistry and as per own admission of respondents, after scrutiny correction has been done and the petitioner has been granted 28 marks. Accordingly on the basis of report submitted by Government Forensic Laboratory, Mahanagar, Lucknow and material on record the petitioners marks in the paper of operative dentistry comes as under:

Subjects Marks granted

Theory First Paper 28

Theory Second Paper 30

Total in theory First and Second paper 58

Oral and Practical 53

Total marks in theory and practical 111

Thus on the basis of original record and the report of forensic expert the petitioner is entitled for total 111 marks in the paper of operative dentistry in view of discussion and finding recorded hereinabove.

Hon''ble Supreme Court in a case reported in (2003) 9 SCC 237, Union Public Service Commission v. Jagannath Misra, held that the conclusion of expert should not be ordinarily interfered by the Court. In a case reported in (1996) 2 SCC 428, State v. S.J. Choudhary, the Apex Court held that whenever the court is of confirm opinion upon the point relating to an aspect of science or art the opinion of the expert in reference of science is admissible under Section 45 of the Indian Evidence Act. For convenience Para 8 of the S.J. Choudhary''s case is reproduced as under:

�It is clear from the meaning of the word ''science'' that the skill or technique of the study of the peculiar features of a typewriter and the comparison of the disputed typerwriter with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a scientific study of the two typewriting with reference to the peculiarities therein and the opinion formed by an expert is based on recognized principles regulating the scientific study. The opinion so formed by a person having the requisite special skill in the subject is, therefore, the opinion of an expert in that branch of the science. Such an opinion is the opinion of an expert in a branch of science which is admissible in evidence under Section 45 of the Indian Evidence Act.�

In a case of Pankaj Bhalla (supra) a Division Bench of this Court had relied upon the opinion of expert who had submitted their report on the basis of various books. Division Bench of this Court had proceeded to award marks to the examinees who appeared in the Combined Pre Medical Test of the respective year.

In a case of Shivdhari Prasad Shah (supra) Patna High Court had issued a mandamus directing the authorities to provide average marks on the basis of marks obtained in other subjects as copies of the examinees were said to be not traceable.

In a case of Aastik Kumar Pandey (supra) this Court had directed the respondents Board to award 40 marks to the petitioner of that petition alongwith compensation of Rs.20,000/, as the petitioner of that case was not awarded marks as per his performance which was noticed by the Court from the original copies. A Division Bench of this Court in a case of Renu Sharma (supra) also proceeded to direct the respondents board to provide certain marks were the copies were lost by the Board on account of no fault on the part of petitioner. In a case of Saurabh Kumar Gupta (supra) after perusal of record this Court had directed the respondents of that case to grant 18 marks after perusal of original record.

One heart pinching material on record is that the marks of each and every question of the second paper of operative dentistry were changed by the examiner by cutting, overwriting or interpolation in violation of the circular of the University. Cutting, overwriting, erasion and interpolation in the award sheets have not been signed by both the examiners. Only opposite party No.3 seems to have signed. The first page of answer book of second paper of operative dentistry also speaks volume which contains the entry of marks of various questions including the total marks. The use of whitener, erasion to the extent it has created perforation on the first page of the copy, interpolation and overwriting done in violation of the circular of University indicates towards the existence of one and only one action i.e. deliberate act on the part of examiner to prevent the petitioner to pass the examination in question. Even in the first paper of operative dentistry, in the original award sheet only 20 marks was entered by the examiner which has been admittedly changed to 28 marks. It is unfortunate that in the University like erstwhile Lucknow University such things had happened, which shows the downgradation of morality to lowest ebb in the highest academic field.

In view of settled law relying upon the report submitted by Government Forensic Lab, petitioner is entitled for 111 marks in the light of observation made in the (sicpreceding) para. Undoubtedly, in case 111 marks are granted to the petitioner she shall pass and qualify the examination.

Accordingly, writ petition deserves to be allowed.

Relying upon the Apex Court judgment in a case of Dwarka Nath (supra) and other cases and material on record, no purpose will solve by sending the copies for revaluation, hence the relief is moulded under the facts and circumstance discussed hereinabove.

Writ petition is allowed with cost in the following manner:

(I) Writ petition is allowed with cost quantified to Rs.25,000/ which shall be payable by respondent No.3 within a period of one month from today. The cost shall be deposited in this Court within the said period of one month out of which Rs.15,000/ shall be payable to petitioner for her suffering on account of present controversy. Rs.10,000/ shall be deposited in the legal aid cell of the High Court. In case the cost is not deposited within a month from today the Vice Chancellor of the respondents'' University shall recover the same from the respondents'' salary and send to this Court immediately within a period of one month after lapse of period provided to respondent No.3. Registrar shall ensure the compliance of order.

(II) Respondents Universities are directed to prepare fresh award sheet/tabulation chart and declare the petitioner''s result within a period of two weeks from the date of receipt of certified copy of this judgment on the basis of observation made in the present writ petition and keeping in view the report sent by Government Forensic Lab, Mahanagar, Lucknow, a copy of which has been provided to the parties counsel during the proceeding of present writ petition.

(III) The entire original records except the three award sheets and the copy of second paper of Operative Dentistry bearing marks/seal from the office of Government Forensic Laboratory, Mahanagar, Lucknow shall be retained by the Registrar of High Court for the period of three months so that in the event of filing of special appeal in the High Court or an appeal under Article 136 of the Constitution of India in the Supreme Court this Court as well as Apex Court may have opportunity to peruse the original records i.e. award sheet and copy, in the event of application moved by the parties'' counsel or suo moto while exercising jurisdiction. Though the Photostat copy of the award sheet as well as the Photostat copy of the copy of second paper of operative dentistry have been provided to the counsel for the parties during the course of proceedings but it shall be open to the respondents University to obtain another Photostat copy of the three award sheets and copy of second paper of operative dentistry for the purpose of preparation of petitioner''s result or others result, if any, in compliance of present judgment. However, in any case, the Registrar of the respondent University shall keep the entire original record in their personal custody at least for the period of one year from today.

(IV) In case no appeal is filed it shall be open to the respondents'' University to get back the award sheets and original copy of the second paper of operative dentistry with prior permission of the High Court.

Writ petition is allowed accordingly.

(Petition allowed)

(Ed. Note: This judgment has been affirmed in Special Appeal by the judgment printed below)