Ramesh Vyas v. University of Rajasthan — 1980 DIGILAW 40 (RAJ)

S.K. MAL LODHA, J. — These three writ petitions under Article 226 of the Constitution of India have been filed by the petitioners. As some of the points involved in the writ petitions are common, they were heard together and it will be convenient to dispose them of by a common order. 2. S.B. Civil Writ petition No. 1385 of 1979 was filed by Ramesh Vyas under Art. 226 of the Constitution, The petitioner Ramesh Vyas appeared at -the Pre-medical Test, 1979 He secured 78. 60 and 21 marks in Chemistry, Biology and Physics respectively out of LOO. The petitioner has submitted paper of Physics marked as Annexure 2. His case is that out of the questions of the Physics paper, questions No. 1(e), 2(a), 2(c), 3(c), 4(b) (c), 5(a) (b) and 6(b) (d) were all numerical ones and carried 4 marks each and that he solved these question absolutely correct and, therefore, was bound to secure atleast 40 marks for these questions alone and surely a few marks more he would have got for the remaining questions. He is not satisfied with 21 marks, which are said to have been obtained by him in the Physics paper. On the basis of Note 2, mentioned in the marks sheet (Anx,2), the petitioner has contended that the University of Rajas-than (respondent No.l) would not undertake scrutiny of marks as the system of automatic scrutiny has been introduced. The case of the petitioner is that he appeared at the test on the belief that scrutiny of marks would be permitted, which was prevailing hitherto before as is borne out from the marks-sheet (Anx. 3) of Shri Harigorlal, who appeared at the Pre-medical Test, 1978. In para 5 of the writ patitiotn, the petitioner has stated that in Anx. 4, which contains ins-tructions for the guidance of candidates intending to appear at the Pre-medical Test, 1979, nothing has been said in regard to the introduction of the so-called system of automatic scrutiny. 3) of Shri Harigorlal, who appeared at the Pre-medical Test, 1978. In para 5 of the writ patitiotn, the petitioner has stated that in Anx. 4, which contains ins-tructions for the guidance of candidates intending to appear at the Pre-medical Test, 1979, nothing has been said in regard to the introduction of the so-called system of automatic scrutiny. As scrutiny of result has been discontinued after introducing system of automatic scrutiny and further as the petitioner has rea-son to believe that there was some mistake on account of which he was awarded 21 marks only in Physics paper, he has filed this writ petition, inter alia, for the following reliefs: "I. By an appropriate writ order or direction the respondents may be directed to produce before the Court the answer-book of the petitioner for the paper of Physics of the Pre-medical Test, 1979 and the Honble Court may be pleased to direct that the same may be re-examined under / or re-evaluated as the Honble Court may consider proper. II. In the alternative and without prejudice to the aforesaid, even if it be considered that the petitioner is not entitled to the aforesaid relief, the Honble Court may be pleased to declare that stoppage of the system of re-scrutiny of marks is illegal and, further direct the respondent to get the marks of the paper of Physics scrutinised all over again on the petitioner paying the requisite fee in this behalf as per the direction of this Court." 3. S.B. Civil Writ Petition No. 1405 of 1979 was filed by the petitioner Hemraj Soni, and the facts stated therein are substantially the same except that he obtained 60,48 and 22 marks in Chemistry, Biology and physics respectively out of 100. He was declared failed as he did not secure 50% marks in the total aggregate for admission in M.B.B.S. course. 4. S.B. Civil Writ Petition No. 1531 of 1979 was filed by Praveen Garg. He secured 45, 80 and 39 marks in Physics, Chemistry and Biology respectively cut of 100. In aggregate, he secured 164 marks out of 300 marks He has taken objections in regard to introduction of automatic scrutiny of marks in his writ petition. 4. S.B. Civil Writ Petition No. 1531 of 1979 was filed by Praveen Garg. He secured 45, 80 and 39 marks in Physics, Chemistry and Biology respectively cut of 100. In aggregate, he secured 164 marks out of 300 marks He has taken objections in regard to introduction of automatic scrutiny of marks in his writ petition. The additional point taken by him is that there were 22 students, who obained 164 marks in aggregate in the Pre-medical Test, 1979 and that some of the students secured 164 marks have already been admitted while the petitioner was not given admission. He has stated according to r. 4 (2) of the Rules of Admission to the Medical Colleges in Rajasthan for the Session 1979-80 in case of candidates securing equal number of marks in Pre-medical Test, it has been mentioned that preference will be given to the persons, who have secured more marks in Science subject to 1st year examination of the Three Years Degree Course and that out of 22 persons, who obtained 164 marks in the Pre-Medical Test, the petitioner is only the person who passed the 1st year Three years Degree Course examination in the year 1979 when there was no internal assessment while all other candidates who passed their 1st year T.D.C. examination prior to 1979 there was internal assessment of about 90 marks. The case of the petitioner is that this has abversely affected the case of the petitioner, and, therefore this rule should be declared bad, for, it was not considered that prior to 1979 marks were given for internal assessment and that this was not so in 1979 assessment. He has, therefore, inter alia, prayed that a writ, direction or order in the nature of mandamus may be issued against the respondents directing them to admit the petitioner to the Medical College in the 1st year M.B.B.S as he is eligible for the same, having secured 164 marks these writ petitions were opposed by the Universtiy of Rajasthan. 5. It was stated in the reply that all the answer-books were examined by the competent examiners appointed by the University of Rajasthan and the marks awarded by the examiners are final and they cannot be challenged. It was pleaded that the University of Rajasthan has introduced the scheme of automatic scrutiny. 5. It was stated in the reply that all the answer-books were examined by the competent examiners appointed by the University of Rajasthan and the marks awarded by the examiners are final and they cannot be challenged. It was pleaded that the University of Rajasthan has introduced the scheme of automatic scrutiny. It was admitted that formerly the candidate desirous of scrutiny of marks could have applied in a prescribed form within a week from the date of issue of marks-sheet along with a fees of Rs. 10/- but for making convenient to the candidates, the formalities of making an application within a week and deposit of Rs. 10/-have been dispensed with by introducing the scheme of automatic scrutiny. The facility of scrutiny has now been extended to every candidate without any application and the fee. The method which was adopted in getting the answer-books evaluated was stated in the reply as follows: 6. The Answer-books supplied to the candidates contained a flap on which the candidate was required to writ his or her roll number. After the examination of the particular paper was over, the Centre Superintendent was required to send the answer-books in the sealed packets to the University on the same day or latest by the following day by special messenger. These sealed packets of answer books were received by the Senior Officers of the University. A team of the senior officers allotted fictitious roll numbers to every answer book and the record of the same was carefully maintained. The team wrote and checked the fictitious roll numbers allotted to the answer books. They were again checked by an officer of the cadre of Deputy Registrar and the flaps were removed by the officers of the aforesaid team. Thereafter, the incharge of the team prepared the packets, each containing 30 answer books for assessment. These packets contained no particulars on the wrapper. These packets were handed over to the Head Examiner. The Head Examiner and all the other examiners assembled in a closed hall of the University, which was not approachable to any outsider. The Head Examiner then gave each packet containing 30 answer-books to the individual co-examiner at random. The examiner had to evaluate all the answer books as the very day. He returned all the answer books to the Head Examiner duly examined along with the award-sheet. The Head Examiner then gave each packet containing 30 answer-books to the individual co-examiner at random. The examiner had to evaluate all the answer books as the very day. He returned all the answer books to the Head Examiner duly examined along with the award-sheet. This process was adopted every day till the work of assessment of the answer books was completed. After the receipt of the marked answer books a scrutinise the second process started and the Head Examiner gave a packet of 39 marked answer books to a scrutiniser The scrutinisers scrutinised the answer books given to them. This was being done to ensure that there had been no error in the totalling of marks secured by the individual candidate. Thereafter, the answer books and the award lists were handed over to the University office for further action. Subsequent to this, the Controller of the Examinations, as per allotment, distributed the awarded sheets to the Tabulators for tabulating the results. Two responsible persons were appointed to tabulate the result independently and to prepare a merit list of the candidates. After the process of evaluation of the answer books and tabulation was over both the copies and the tabulation registers were given to a set of two responsible persons of the University to check them again. 7. On the basis of the aforesaid procedure and method of examining the answer-books, it was pleaded on behalf of the University of Rajasthan that there were no chance of error or manipulation at any stage. It was stated that the answer books of the petitioners were evaluated by the competent examiners and marking was done by them on the basis of the answers given to the questions and that there was no scope of any error in totalling as there was automatic scrutiny. It was also submitted in the reply that the petitioners have absolutely no right of re-evaluation of the answer-books. The only facility extended was of the scrutiny i.e. re-totalling of the marks awarded by the Examiner and this was done in the case of all the candidates, who appeared at the Pr>m-dical Test, 1979 inclusive of the petitioners. It was mentioned in the reply that the petitioners have no vested right of getting the answer books scrutinised. The only facility extended was of the scrutiny i.e. re-totalling of the marks awarded by the Examiner and this was done in the case of all the candidates, who appeared at the Pr>m-dical Test, 1979 inclusive of the petitioners. It was mentioned in the reply that the petitioners have no vested right of getting the answer books scrutinised. It was stated that there was no contravention of any statute, Rule, Ordinance or Regulation and as such the petitioners are not entitled to maintain the writ petitions. It was also stated that the scheme of automatic scrutiny was introduced after realising the defects, viz delay in finalising the list of eligible candidates to be admitted in the Medical Course inconvenience to the candidates sitting at distant places etc. and that the scheme ensures equality to all and rules out any hypothesis of error or manipulation. 8. Reference hereinafter to the various documents will be as made in S.B. Civil Writ petition No. 1385 of 1979. 9. A rejoinder was filed to the reply by the petitioners Ramesh Vyas and Hemraj Soni stating that scruting of marks in mass in qualitatively quite different from the scrutiny of individual answer books and that if the University wanted to change the system it should have notified the same. 10. I have heared learned counsel for the petitioners, Mr. N.N. Mithur for the University of Rajasthan (respondent No. 1) and Mr. H.N. Calla, Deputy Govt. Advocate. 11. I will examine two writ petitions: S B. Civil Writ Petitions No. 1385 and 1409 of 1979 on merits. In view of the statement made by Mr. B.R. Arora, learned counsel for the petitioner in S.B. Civil Writ Petition No. 1531 of 1979, it is not necessary to decide it on merits. 12. Learned counsel for the petitioners contended that when the petitioners filed the form for taking the pre-medical test and when they appeared at the Pre-medical Test, it was never notified that scrutiny of result will not be permitted. On the contrary, as is evident from Annexure 3. scrutiny of marks was permissible and the petitioners in absence of anything contrary thereto appeared in the examination under the belief that at least scrutiny of marks will be permitted. On the contrary, as is evident from Annexure 3. scrutiny of marks was permissible and the petitioners in absence of anything contrary thereto appeared in the examination under the belief that at least scrutiny of marks will be permitted. The discontinuance of system of scrutiny is an act of a retrospsc-tive character which cannot be done by any executive or administrative order as the same will amount to divesting the petitioners of the vested or at least a valuable right. Learned counsel for the petitioners on the basis of the decisions reported in Govt. Press. Vs. D. Belliappa (1) and Ramana Vs. LA. Authority of India (2), contended that the instructions relating to the scrutiny of the marks, which were in force upto the Pre-medical Test, 1978, could not be discontinued without prior information, though they may be administrative in character. In Govt. Branch Presss case (!), it was held that the executive, no less than the judiciary, is under a general duty to act fairly and that indeed, fairness founded on reason is the essence of the guarantee epitomised in Arts. 14 and 16 of the Constitution. In that case, the services of a temporary Government servant were terminated without giving any reason and it was held that the termination of service was made arbitrarily and not on the ground of unsuitability or other reason. So far as Ramans case (2) is concerned, it was observed that it is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual and that every action of the executive Government must be informed with reason and should be free from arbitrariness. 13. Regulation 38 of the Jodhpur University Act, camp up for consideration before a Full Bench of this Court in Virendra Kapur Vs. the University of Jodhpur (3). The contention raised, in that case, was whether the new Regulation Ex. 1 did not repeal its old counter-part and both can stand together and the petitioners case was properly governable by it and in any event it could not be given retrospective effect so as to adversely effect the rights of the petitioner who had already taken his Second year B.E. Examination when the old Regulation was in force. 1 did not repeal its old counter-part and both can stand together and the petitioners case was properly governable by it and in any event it could not be given retrospective effect so as to adversely effect the rights of the petitioner who had already taken his Second year B.E. Examination when the old Regulation was in force. Modi J., speaking for the Court, summed up the position as under: "The correct position, therefore, is that whether we call a right like this a vested right of the student or not in the state of things which existed at the time he took his admission in the University or at any like juncture may be a matter of mere terminology; but the point of substance is that he had joined the University or taken an examination on the faith of a certain state of things and the University as a statutory body was and would be under a duty to act upon that faith and if it commits a breach of that faith, then the aggrieved party would have a legitimate cause of grievance calling for redress." The Full Bench was of the opinion that having had the benefit of the old regulation 38, which was indeed undeniable, the petitioner had acquired a valuable right or what might be called a privilege to be governed by the same and that right or privilege was certainly not without value and, therefore, could not be interfered with by a subsequent notification to his disadvantage which disadvantage certainly consists in his being asked to revert to the 2nd year B.E. Examination and to take entire written exaimination over again which he would not be required to do under the old regulation. It was further held that even accepting that the old regulation 38 stands by necessary implication replaced by the new regulation Ex.1, the latter should be given a prospectiv effect only. For deciding the question of validity of system of automatic scrutiny in Pre-medical Test, 1979, Virendra Kapurs case (3) is of no avail and it is clearly distinguishable. In the facts and circumstances of the cases in hand, I am unable to come to the conclusion that the observations made in Virendra Kapurs case (3 ) are attracted. In that case, Virendra Kapur was admitted to the 1st year B.E. Class of Engineering College at Jodhpur in July, 1962. In the facts and circumstances of the cases in hand, I am unable to come to the conclusion that the observations made in Virendra Kapurs case (3 ) are attracted. In that case, Virendra Kapur was admitted to the 1st year B.E. Class of Engineering College at Jodhpur in July, 1962. At that time, the Engineering College was affiliated with the Rajasthan University. In 1962, Jodhpur University was established and the Engineering College became a college of that University. In April, 1963 Virendra Kapur appeared at the 2nd year B.E. examination and secured 55% marks in the aggregate but failed in one paper only, being mathematics second paper. Regulation No. 38 of the Rajasthan University, which was then in force, permitted candidates securing in aggregate 55%, but who had failed in one written paper only, to join the next higher class and also to take the supplementary examination in the subject in which the candidate had failed, along with the next higher examination but the condition of his being declared to have passed the next higher examination was that he should pass the examination1 of the subject in which he had failed at the lower class. ...The Jodhpur University on June 12, 1963. Thus, it was a case of a candidate, who had studied in the third year class for some months but was being asked to-come back to the lower class and study in all the subjects once again. It was in those facts and circumstances and in that context that the learned Judges of the Full Bench observed that the right or privilege given by the old Regulation No. 38 could not be interpered with by any subsequent notification to the students disadvantage which consisted in his being asked to revert to the 2nd year B.E. and take the entire written examination over again. The Full Benchs decision was considered by a Division Bench of this Court in Kuntal Gupta vs. the Board of Secondary Education (4). In that case, the Regulation of the Board, with which the Division Bench was concerned, did not contain any provisions regarding the candidates age at any examination. A subsequent amendment brought in Regulation No 11. imposed an age ban for examination for the first time. In that case, the Regulation of the Board, with which the Division Bench was concerned, did not contain any provisions regarding the candidates age at any examination. A subsequent amendment brought in Regulation No 11. imposed an age ban for examination for the first time. While Considering the proper interpretation of Regulation No. 11, the Division Bench was of the opinion that there is no vested right created by the unamended regulation as such and if that were so, it would lead to absurb results, for, in that event no regulation could be amended subsequently because it can always be urged by persons, who commenced their study when the regulation or law was unamended, that the amendment changes the state of things under which they commenced their studies for a particular course. In the cases before me, the question of acquiring valuable right relating to scrutiny of marks does not at all arise. I adopt the reasoning given in Kuntal Guptas case (4). In the instructions for the guidance of candidates intending to appear at the Pre-medical Test, 1979 (Anx.4) nothing has been said about the scrutiny of marks or re-evaluation of the answer books. There is nothing in regard to this in the instructions to the candidates, which were printed on the first page of the Answer-Books. From the documents, that have been placed on the record by the petitioners, there are no instruction for adherence to the system of scrutiny of results, which was done upto the Pre-medical Test, 1978. In other words, there are no instructions for the Pre-medical Test, 1979 relating to the scrutiny of marks or re-evaluation of the questions that the system in vogue for scrutiny of result upto Pre-medical Test, 1979, would be adhered to. A perusal of Ann-exure 1 shows that system of scrutiny of marks has not been completely done away with. What was introduced is that there would be automatic scrutiny of marks and that having been introduced, the provision of getting the result scrutinised after its declaration was discontinued with effect from the Pre-medical Test, 1979. In these circumstances, it cannot be said that facility of scrutiny of marks has been discontinued. 1 am of the opinion that by introduction of the automatic scrutiny, nothing has been done in detriment to the interest of the candidates, who appeared at the Pre-medical Test, 1979. In these circumstances, it cannot be said that facility of scrutiny of marks has been discontinued. 1 am of the opinion that by introduction of the automatic scrutiny, nothing has been done in detriment to the interest of the candidates, who appeared at the Pre-medical Test, 1979. It is pertinent to mention here that the facility of scrutiny i.e. ire-totalling of marks awarded by the examiner was adopted in the cases of all the candidates, who appeared at the Premedical Test, 1979 inclusive of the petitioners. 14. A contention was raised in Padmraj Samarendra v. The State of Bihar (5), that mechanical device is not foolproof and human factors outweigh the correctness of the results. It was observed as follows: "This by itself would not prove that whatever device has been used must be considered to be incorrect and ineffective." 15. Regarding the prospectus, it was held in the aforesaid case that prospectus issued by any educational institution is merely a document giving information and direction to candidates who wish to apply and that it is not a document of title nor an instrument of law which creates rights to the intending candidates. The conclusions to which I have arrived at is that there is absolutely no question of taking any vested or valuable right of the petitioners and that absence of notifying changed system of scrutiny of marks is not bad so as to vitiate the assessment of questions attempted by them in Physics papers. am also satisfied that by automatic scrutiny there is no question of hardship to the candidates, who appeared at the examination, for only the manner of scrutiny had been changed. 16. In para 8/1 of the writ petition, the petitioners Ramesh Vyas and Hemraj Soni have stated that Both of them attempted the Physics paper in two answer books and it is impossible to conceive that having done so well, they would secure only the marks, which have been mentioned in their respective mark-sheets and that their answers books may be summoned and get scrutinised by this Court. In its reply, the University of Rajasthan has stated that under the old method the petitioners were required to submit applications for the scrutiny with a separate fee but how their answer books had been scrutinised without applications and the fee and the University is satisfied that there is no mistake in the answer books. Mr. In its reply, the University of Rajasthan has stated that under the old method the petitioners were required to submit applications for the scrutiny with a separate fee but how their answer books had been scrutinised without applications and the fee and the University is satisfied that there is no mistake in the answer books. Mr. N.N. Mathur, learned counsel for the University of Rajasthan showed the answer books of Physics paper of Ramesh Vyas and Hemraj Soni to me during the course of arguments. With his assistance, I had gone through them. In case of each of the aforesaid two petitioners, there was no mistake in totalling of the marks and further all the questions attempted by them have been assessed by the examiner. This being so, it cannot be said that there was any error in regard to the totalling of the marks or that any question has been left unassessed. So far as the re-evaluation is concerned, no substantial averments have been made in this regard. 17. Learned counsel for the petitioners faintly suggested that marking in the answers of Physics paper, as apparent from the marks-sheets, is mala fide mala fide in the sense of malice in fact and /or malice in law or at least malice in law if not malice in fact. As stated above, there is no mistake in totalling of the marks nor any answer has been left unassessed. There is no allegation of mala fide against the University or the examiner who has evaluated the answer books of Physics paper and, therefore, the question of any mala fide or malice does not arise. The change of manner of scrutiny, therefore, cannot lead to the conclusion that the petitioners have been awarded low marks in the Physics paper. 18. No other point survives from my consideration, in the writ petitions of Ramesh Vyas and Hemraj Soni. 19. Mr. B.R. Arora, learned counsel for the petitioner in S.B. Civil Writ Petition No. 1531 of 1979 stated that in view of the undertaking given by the Deputy Government Advocate on January 10, 1980 as modified on January 18, 1980, for admission of Praveen Garg, he does not want to press the writ petition. 20. 19. Mr. B.R. Arora, learned counsel for the petitioner in S.B. Civil Writ Petition No. 1531 of 1979 stated that in view of the undertaking given by the Deputy Government Advocate on January 10, 1980 as modified on January 18, 1980, for admission of Praveen Garg, he does not want to press the writ petition. 20. The result is that S B. Civil Writ Petitions No. 1385 of 1979 and 1405 of 1979 are dismissed without any order as to costs and S.B. Civil Writ Petition No 1531 of 1979 is also dismissed as not pressed.