AJAY BANSAL v. BANGALORE UNIVERSITY — 1989 DIGILAW 398 (KAR)

BALAKRISHNA, J. ( 1 ) THE petitioner has sought for quashing of the Notification dated 9-8-1985 issued by the bangalore University partially to the extent that it prohibits revised ranking in respect of those examinees who derive benefit in the revaluation save the declaration of class. ( 2 ) ACCORDING to the aforesaid Notifica tion, it is provided as follows (only therelevant portion of the Notification is reproduced):-"in supersession of earlier notification nos. SYN. 4. Order 80/83 dated 22-9-1983, 27-4-1984 and 16-10-1984 and in exercise of the powers conferred on it under Section 38 of the Karnataka State universities Act, 1976, the Syndicate of the Bangalore University at its meeting held on 25-7-1985 has been pleased to make amendment, to the Ordinances published in earlier notification cited above. With the amendments to the said ordinances the following shall be the ordinances regarding revaluation (review) of Answer Scripts;- xxx XXX XXX 7. No revised rank will be declared in respect of those who get benefit in the revaluation (review) and no incidental benefit which accrue due to the revaluation (review) will be granted, except declaration of class. XXX XXX XXX". ( 3 ) THE material facts are that thepetitioner being a student of Seshadripuram college, Bangalore, appeared for the final b. Com. degree examination of the Bangalore university under Register No. 8627371 in the month of April 1988 and passed in his first attempt. In the said examination, the petitioner was declared to have passed in II class with the total marks of 355 having been scored by him out of possible 600 marks. ( 4 ) THE petitioner claims to be a good studentwth a consistent performance all along in his academic career. According to the petitioner, his performance in the examination merited aware of higher marks than awarded to him and this he attributes to negligent valuation of answer scripts and/or compilation of marks awarded. According to the marks card issued to him, the petitioner is stated to have secured 44% marks in Mercantile Law, 60% marks in business Organisation and Marketing and 40% marks in Auditing and Taxation. It is stated that, in 1982, the petitioner was awarded prizes for his outstanding performance in Mathematics, Accounts, Science and Social Studies and similarly in 1984 for his performance in Accountancy, Economics and Commerce. It is stated that, in 1982, the petitioner was awarded prizes for his outstanding performance in Mathematics, Accounts, Science and Social Studies and similarly in 1984 for his performance in Accountancy, Economics and Commerce. There are other achievements to his credits which may not be neces sary to be adverted to. ( 5 ) THE petitioner is aggrieved by what hecalls as "undeserved devaluation of the petitioner's performance by the respondent" and, therefore, he submitted a comprehen sive representation to the respondent, a copy of which is Annexure-G dated 8-7-1988. In the representation, the petitioner indicated his consistently good performance all along upto final B. Com. degree examination, point ing out the damage likely to be caused to his future academic career and future prospects if the wrong done to him was not set right. Therefore, the petitioner prayed for a proper revaluation of his performance in the said subjects. ( 6 ) ON revaluation of the answer scripts, asagainst 355 total marks awarded to him originally, the petitioner's marks rose to 384 out of possible 600 marks. The petitioner was, therefore, placed in I Class after revaluation, he having scored a total of 834 marks being the aggregate for I, II and III year B. Com. examinations. ( 7 ) UNDER letter dated 1-9-1988 which isannexure-I, before revaluation the respondent notified the names of candidates who secured the first ten ranks at the B. Com. final examination of Bangalore University taking into account the aggregate of marks secured in all the three years consisting of I year, II year and HI year B. Com. examina tions. According to the petitioner, respondent-2 scored 831 marks in the aggregate, whereas the petitioner secured 834 marks after revaluation. Therefore, according to the petitioner, he is entitled to be placed in the tenth rank in the place of respondent-2. Respondent-2 had been placed tenth in the ranking list. ( 8 ) ON 3-9-1988, the petitioner submitted arepresentation, a copy of which is Annexure-J, with a request to respondent-I to award him the rank to which he became entitled consequent to the petitioner having secured 834 marks over and above respondent-2. However, the representation of the petitioner did not meet with any response. ( 8 ) ON 3-9-1988, the petitioner submitted arepresentation, a copy of which is Annexure-J, with a request to respondent-I to award him the rank to which he became entitled consequent to the petitioner having secured 834 marks over and above respondent-2. However, the representation of the petitioner did not meet with any response. It is stated that the petitioner was told by the officials of respondent-1 that in accordance with para-7 of the impugned notification, no revised rank shall be declared in respect of those who get benefit in the revaluation and no incidental benefit which accrued due to the revaluation will be granted except declaration of class. The petitioner was informed that relying on the said Notification, the, petitioner was denied the tenth rank in the place of respondent-2. Therefore, the petitioner is aggrieved and has approached this Court. ( 9 ) I have heard the arguments of thelearned Counsel for the petitioner Col. V. K. K. Nair (Retired), Sri Shivraj Patil, learned standing Counsel for the Bangalore Univer sity and Sri B. K. Chandrashekar, learned counsel appearing for respondent-2. ( 10 ) ACCORDING to the learned Counsel forthe petitioner, respondent-1 is not justified in denying the tenth rank to the petitioner since the marks awarded to the petitioner on the basis of revaluation is, in turn, based on the actual performance of the petitioner on merits. The learned Counsel contended that revaluation cannot be equated to a re-ex amination, but it was only an opportunity for rectifying any error committed in the valua tion by revaluing the answer scripts and, therefore, the marks secured by the petitioner ultimately should be regarded as the marks awarded for his performance. It was argued that since the petitioner has secured more marks than respondent-2 who has been conferred with the tenth rank, the petitioner is entitled to be awarded tenth rank in the place of respondent-2. The other contention is that the impugned portion of the Notification is discriminatory and unconstitutional since it offends Article 14 of the constitution. It was also argued that the notification is severable and, therefore, it is permissible to quash only the relevant portion which is assailed in this wirt petition. The other contention is that the impugned portion of the Notification is discriminatory and unconstitutional since it offends Article 14 of the constitution. It was also argued that the notification is severable and, therefore, it is permissible to quash only the relevant portion which is assailed in this wirt petition. ( 11 ) THE learned Counsel appearing forthe 1st respondent submitted that the petitioner having agreed for revaluation sub ject to the conditions embodied in the notification, it is not open to the petitioner to resile and to choose only what is con venient to him in the Notification which governs the conditions of revaluation. ( 12 ) THE learned Counsel for respondent-2pleaded that respondent-2 having already been awarded the tenth rank, will be exposed to substantial injury to her prospects if the petitioner is permitted to be substituted to her place as the tenth rank holder of Ban galore University. It was also pleaded that the petitioner cannot be given the benefit of the tenth rank since, according to the original valuation, respondent-2 had secured higher marks than the petitioner. ( 13 ) THAT the petitioner secured a total of834 marks in the aggregate for the I, II and iii year B. Com. examinations on revaluation of the answer scripts, is not in dispute. Whereas the petitioner is relying on his legal right in laying claim to the tenth rank, both the respondents are relying upon the im pugned Notification which denies any rank to the petitioner even if the petitioner has scored higher marks than any of the rank holders declared on the basis of the original valuation. ( 14 ) THE impugned Notification is issuedunder Section 38 of the Karnataka State universities Act, 1976 by the Syndicate of the bangalore University at its meeting held on 25-7-1985 as an amendment to the Ordinan ces published in earlier notifications referred to in the impugned Notification. The said notification is stated to be the ordinance regarding revaluation (review) of answer scripts. According to para-7 of the im pugned Notification, no revised rank will be declared in respect of those who get the benefit of revaluation (review) and no in cidental benefit which accrue from revalua tion (review) will be granted except declaration of class. Whereas the petitioner was declared to have passed in II Class before revaluation, he was declared to have passed in I Class subsequent to revaluation. Whereas the petitioner was declared to have passed in II Class before revaluation, he was declared to have passed in I Class subsequent to revaluation. If the petitioner had secured 834 marks in the aggregate before the revaluation, there can be no doubt that he would have been awarded tenth rank instead of respondent-2. The petitioner is now denied the benefit of tenth rank not because the petitioner has scored less marks than respondent-2, but because para-7 of the impugned Notification stands as an impediment to the petitioner. ( 15 ) THE declaration of ten ranks in theb. Com. degree examination is a declaration of academic distinction of far reaching benefits to the recipients in recognition of the meritorious and outstanding performance in degree. The ranking is exclusively based on performance in the examination not only in the final year, but also in the earlier examinations of I and II year B. Com. The sum total of the performance in all the three examinations determines the calibre of the examinees. In other words, the toil of three years and the creditable performance therein are reflected in the first ten ranks awarded to the students in B. Com. In my opinion, by the process of revaluation of the answer scripts, what is determined is the merit of the examinee concerned in his performance and there can be no distinction between original valuation and subsequent revaluation for the purpose of award of rank to the concerned examinee. What ultimately is discovered upon revaluation is the actual performance of the candidate and if the actual perfor mance of the candidate fetches higher marks than what was awarded in the -original valua tion, it must hold good for the purpose of ranking. The artificial barrier created be tween valuation and revaluation does not stand the test of either fairness or reasonableness. If actual performance is the criteria, the petitioner should be entitled to the award of tenth rank no matter whether the marks secured by him were higher in revaluation when compared with the marks awarded to him under wrong valuation earlier. What is relevant for consideration is not the expression "review", but the actual per formance of the candidate on merits. What is relevant for consideration is not the expression "review", but the actual per formance of the candidate on merits. After revaluation, it is conceded beyond dispute that the petitioner by his performance is entitled to an aggregate of 834 marks and this aggregate is higher than the aggregate marks secured by respondent-2. In my opinion, the declaration of the marks of the petitioner on review stands on firm ground and cannot be defeated by the unconscionable condition stipulated in the impugned Notification. The petitioner in relation to the ten rank holders including the 2nd respondent arc persons who are similarly situated and belong to the same class and there can be no discrimination among them. There is no intelligible dif ferentia tor the discrimination between the petitioner and respondent-2 to exclude the petitioner for the benefit of ranking based on marks obtained in revaluation. The im pugned portion of the Notification is ar bitrary and unreasonable. I, therefore, hold tthat the impugned Notification to the extent to which it has been challenged is not valid in law and is unconstitutional, and violative of article 14 of the Constitution, ( 16 ) THE Supreme Court held in the caseof Bashesharnath v Income Tax Commis sioner, AIR 1959 SC 149 , that Article 14 is more in the nature of an admonition to the state and does not directly purport to confer any right on any person as some of the other articles, example Article 19 do. Article 14 is an injunction to both the legislature and the executive. There can be no waiver of fun damental rights. In the said case, S. A. Das, CJ and Kapur, j stated in their opinion:-"article 14 is, in form an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other articles, e. g. Article 19, do. The obligation thus imposed on the state, no doubt, enures for the benefit of all persons for, as a necessary result of the operation of this article, they all enjoy equality before the law. That is, however the indirect, though necessary and inevitable, result of the mandate. The obligation thus imposed on the state, no doubt, enures for the benefit of all persons for, as a necessary result of the operation of this article, they all enjoy equality before the law. That is, however the indirect, though necessary and inevitable, result of the mandate. The command of the article is directed to the state and the reality of the obligation thus imposed on the slate is the measure of the fundamental right which every person in the territory of India is to enjoy. The next thing to notice is that the benefit of this article is not limited to citizens but is available to any person within the territory of India. In the third place, it is to be observed that by virtue of article 12, 'the state', which is, by Article 14 forbidden to discriminate between persons, includes the government and parliament of India and the government and legislature of each of slate and all local or other authorities within the territory of India or under the control of the Government of India. Article 14 is, therefore, an injunction to both the legislative as well as the execulive organs of the slate and the other subordinate authorilies. The Article 14 protects us from both legislative and executive tyranny by way of discrimination. It seems to be absolute clear on the language of article 14 that it is a command issued by the constitution to the state as a mailer of public policy with a view to implement its object of ensuring the equalily of status and opportunity which every welfare state, such as India, is by her constitution expected to do and no person can by any act or conduct relieve the stale of the solemn obligation imposed on it by the conslilulion. Whatever breach of other fundamental right a person may or may not waive, he cannot certainly give up or waive a breach of the Fundamental Right that is indirectly conferred on him by this constitutional mandate directed to the state. "in the same decision Subbarao, J points out:-"part III is therefore enacted for the benefit of all citizens of India, in an attempt to preserve to them their fundamental Rights against infringement by the instilutions created by the constitution, for without that safe-guard, the objecl adumbrated in the constitution could not be achieved. "in the same decision Subbarao, J points out:-"part III is therefore enacted for the benefit of all citizens of India, in an attempt to preserve to them their fundamental Rights against infringement by the instilutions created by the constitution, for without that safe-guard, the objecl adumbrated in the constitution could not be achieved. For the same purpose, the said chapter imposes a limitation on the power of the state lo make laws in violation of those righls. The enlire part in my view has been introduced in public inlerest and it is not proper that the Fundmental Rights created under the various articles should be dissecled to ascertain whether any or which part of [hem is conceived in public interest and which part of them is conceived for individual benefit. Part III reflects the attempt of the constitution makers to reconcile individual freedom with state control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions, in India the Fundamental Rights and their limitations are crystallised and embodied in the constitution itself. . . . I would, therefore, hold that the Fundamental rights incorporated in Part III of the constitution cannot be waived". He added:-"if the doctrine of waiver is engrafted to the said fundamental principles, it will mean that a citizen can agree to be discriminated. When one realises that unequal positions are occupied by the state and the private citizen, particularly in India where illiteracy is rampant, it is easy to visualise that in a conflict between the state and a citizen, the latter may, by fear of force or hope of preferment give up his right. It is said that in such a case, coercion or influence can be established in a court of law, but in practise it will be well nigh be impossible to do so. The same reasoning will apply to Articles 15 and 16. Article 17 illustrates the evil repercussions of the doctrine of waiver in its impact on fundamental rights. That article in express terms forbids untouchability and obviously, a person cannot ask the state to treat him as an untouchable".- AIR 1959 SC 149 (181 ). The same reasoning will apply to Articles 15 and 16. Article 17 illustrates the evil repercussions of the doctrine of waiver in its impact on fundamental rights. That article in express terms forbids untouchability and obviously, a person cannot ask the state to treat him as an untouchable".- AIR 1959 SC 149 (181 ). ( 17 ) THEREFORE, it cannot be said thatnerely because the petitioner has obtained he benefit of review subject to the condition mposed in the impugned Notification, it is lot open to the petitioner to seek the benefit of ranking also which is not available to him under the conditions imposed in the said notification. There can be no waiver of the fundamental right of the petitioner. ( 18 ) THE classification made on the basisof review is unreasonable and offends Article 14 of the Constitution. I do not see any force in the contention that the impugned portion of the Notification is not severable. On the other hand, it is possible to give effect to the notification without enforcing that portion of the Notification which is challenged in this writ petition without doing violence to the remaining parts of the same Notification. It is made clear that the petitioner is entitled not only to the declaration of class, but also to the declaration of his rank, if he falls within the first ten ranks of B. Com. degree examination of the Bangalore University. ( 19 ) THE learned Counsel for thepetitioner relied on the decision in Bhagat ram v H. P. University, AIR 1987 Himachal pradesh 21. In this case, the appellant had joined law classes in the H. P. University. Though he was declared successful in the fourth semester examination, he was not satisfied with the marks awarded in certain papers and, therefore, applied for revaluation in terms of the rule framed by the h. P. University. On revaluation, the appellant was awarded 822 marks out of 1300 marks in the four semesters and he also completed his examination in the first attempt. As a result of the marks scored by the appellant on revaluation, the appellant claimed a scholarship and gold medal. But the University resisted and denied the same, to the appellant. It was held:-"in view of the aforesaid discussion, we are of the view that the appellant who had secured more marks than respondent no. As a result of the marks scored by the appellant on revaluation, the appellant claimed a scholarship and gold medal. But the University resisted and denied the same, to the appellant. It was held:-"in view of the aforesaid discussion, we are of the view that the appellant who had secured more marks than respondent no. 4 after revaluation was entitled to the grant of scholarship and the gold medal. We are informed that the same has not so far been given to respondent No. 4 by the h. P. University and, therefore, the university can easily award the scholarship as well as the gold medal to the appellant. "in the said case, it was also held:-". . . . . . . . HENCE the result declared upon the re-valuation of certain papers of a candidate will date back to the date upon which the result of all the candidates including the appellant (whose papers had been revaluated) and others who had taken the examination with him, was declared. The Executive Council of the university had no authority to amend the ordinances retrospectively. It could only make alter or amend the Ordinances prospectively. " ( 20 ) IN Manoj Kumar v Ravishankaruniversity, Raipur, AIR 1989 Madhya pradesh 1, it was held as follows:-". . . . . . . There is no reason why after revaluation, if the petitioner is found to have obtained 'first position', he should be continued to be ranked in 'third position'. This would be rank injustice to a student devoted to studies with meritorious performance. The object behind revaluation is that every man should get his due which he deserves. That is the rule of law and also equity. This appears so be a case where the position in the merit-List entails consequential benefits also. Generally the toppers have further benefits not only of Division and Merit, but often Medals and Prizes. If that be so, it is all the worst that the petitioner is deprived of his legal right to such benefits. There is no reason why the petitioner should suffer for the fault of the university. There is no question of any legal injury to the other two respondents just because under the rules relating to revaluation, they would be relegated from their positions Nos. 1 and 2, to positions nos. 2 and 3. There is no reason why the petitioner should suffer for the fault of the university. There is no question of any legal injury to the other two respondents just because under the rules relating to revaluation, they would be relegated from their positions Nos. 1 and 2, to positions nos. 2 and 3. If the relegated No. 3 had any grievance, he could have availed of the provisions regarding revaluation within 30 days. It is not correct to say that amendment in the impugned Merit List would not be in the interest of public at large. " ( 21 ) THE learned Counsel for respondent-2attempted to draw support from Maharashtra s. B. O. S. and H. S. Education v Paritosh, AIR 1984 SC 1543 . The decision relates to two groups of writ petitions, the first group consisting of cases where the right of inspection alone was claimed and the second group comprising of cases where the petitioners had claimed also the further right to dem and a revaluation of the answer papers. It is in this context, the Supreme Court had occasion to consider the vires of a regulation made by the rule making authority and upheld the regulation expressing the following view :-"in our opinion, the a fore said approach made by the High Court is wholly incorrect and fallacious. The court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the constitution. . . . . . . . . . . . "neither on facts, nor on law, there is analogy between the above decision relied upon and the instant case. In my opinion, the said decision is inapplicable to the facts of the case. ( 22 ) IN the result, for the foregoingreasons, I pass the following :-ORDER (1) Rule is issued and made absolute; (2) The Writ Petition is allowed; (3) The following portion in para 7 of the impugned Notification only is quashed :- "no revised rank will be declared in respect of those who get benefit in the revaluation (review) and no incidental benefit which accrue due to the revaluation (review) will be granted'' (4) A direction is issued to respondent-1 to award the tenth rank to the petitioner in the place of respondent-2 in B. Com. degree examination held in April 1988 within thirty days from the date of receipt of a copy of this order, (5) A copy of this order shall be com municated to respondent-! forthwith. Writ Petition allowed. --- *** --- .