Sakti Pada Jana v. University of Calcutta — 1994 DIGILAW 164 (CAL)

Judgment : This Civil Order arises out of an application under Article 226 of the Constitution of India. The petitioner appeared in the final examination of Law (3 years) of the respondent university under the revised Regulations consisting of six papers, namely, (1) Public International Law, (2) Drafting of Pleadings and Documents. (3) Equity and Trust, (4) Company law and other two elective papers of 100 marks each. The petitioner opted to take Labour Law and Taxation as his elective papers. In order to pass the said examination one candidate is required to obtain an aggregate of 270 marks in the minimum and thereby get a 2nd Class. A photo-copy of the Admit Card given to the petitioner by the University of Calcutta has been annexed with the writ petition and marked as Annexure "A". When the result of the examination was published to his utter surprise, the petitioner found that he had failed to obtain the minimum pass marks. After taking delivery of the Mark-sheet from his college, namely, Surendranath Law College, Calcutta, the petitioner came to learn that be had been given 37 marks in public International Law (paper 1st), 50 marks in Drafting of Pleadings and Documents (paper 2nd), 42 in Equity and Trust (paper Third), 47 in Company Law (paper Fourth), 35 in Labour Law (elective paper Fifth) and 42 in Taxation (elective paper Sixth), totalling 253 marks. A copy of the mark-sheet issued by the Controller of Examination of the Calcutta University (respondent No.3) has been annexed with the writ petition and maked "B". Within the prescribed time, the petitioner took the decision to apply for re-examination of the answer-scripts in all the six papers but be came to know that existing rules did not permit re-examination in more than 2 papers. So he deposited the prescribed fees at the rate of Rs. 20/- per paper for re-examination of the answer-scripts of paper 1st and paper 5th. The challan showing the deposit has been annexed and marked "C". The Rules for Post Publication Re-examination of answer papers for the relevant examination has been marked as Annexure "D" to the writ petition. When the result of the re-examination prayed for by the petitioner was published he found that he got 7 marks more in paper 1st and 5 marks more in paper 5th. So his total marks came up to 265. When the result of the re-examination prayed for by the petitioner was published he found that he got 7 marks more in paper 1st and 5 marks more in paper 5th. So his total marks came up to 265. The contention of the petitioner is that if other papers could also be re-examined then the petitioner marks would have definitely exceeded the minimum 270 marks. According to he petitioner, there is no justification and reasonable cause on the part of the University for not re-examining all the papers which on the face of the record were not correctly assessed either due to nonfeasance or mis-feasance on the part of the examiners. 2. Under the existing Rules of the University, an examinee cannot claim re-examination in more than two papers comprising of 200 marks. The petitioner submits that the said Rule is arbitrary, unreasonable and unjust, particularly when it is detected that the result originally declared were erroneous and there bad been gross under-assessment of the answer-scripts. The petitioner is sure and confident that if re-examination is allowed in respect of the other four papers he will secure the required marks of 270 in total. 3. Being aggrieved by and dissatisfied with the University in not permitting the petitioner, the review of more than 2 subjects, he moved a writ petition before this Court on 28th July, 1993 and the Hon'ble Judge after hearing both the parties was pleased to allow the prayer made in the writ petition with a direction upon the petitioner to make a representation for review before the Pro-Vice-Chancellor (Academic). The relevant portion of the order reads as follows :- "The petitioner is directed to make a representation for review before the Pro-Vice-Chancellor (Academic) and the Pro-Vice-Chancellor (Academic) will consider the said representation sympathetically and review the other four papers and dispose of the same. Such decision will be taken within 2 weeks from date. It is expected that the Pro-Vice-Chancellor (Academic) will allow such review of all the four papers, in view of the peculiar facts and circumstances of the case. This, however, will not be treated as a precedent". 4. In pursuance of the said order dated 6th September, 1993, the petitioner made a representation to the Pro-Vice-Chancellor (Academic) on 13th September, 1993 for review of four other papers. A copy of the said representation has been annexed with the writ petition and marked "F". This, however, will not be treated as a precedent". 4. In pursuance of the said order dated 6th September, 1993, the petitioner made a representation to the Pro-Vice-Chancellor (Academic) on 13th September, 1993 for review of four other papers. A copy of the said representation has been annexed with the writ petition and marked "F". The Pro-Vice-Chancellor (Academic) (vide its letter dated 16th September, 1993) informed the petitioner as follows : "In compliance of the order of the Hon'ble High Court, I considered the representation of Shri Shaktipada Jana. The University regulations allow a candidate to review not more than two papers only, provided, he/she secures 45% in the aggregate in other four papers. There is no provision in the rules for reviewing more papers. Hence, Shri Jana cannot be allowed to review his other four papers. If allowed to do so, there will be gross violation of the Calcutta University Rules. Considering the facts and circumstances of the case, there is no other alternative than to regret the prayer". This letter has been marked as Annexure "G" to the writ petition. 5. The petitioner has submitted that the Pro-Vice-Chancellor (Academic) has deliberately and wilfully rejected the prayer to review the other four papers on the plea that there is no provision in the Rules for reviewing more than two papers. The petitioner submits that unless the respondents are directed to produce the other four papers of the petitioner before this Court and those papers are reviewed by a competent examiner appointed by this Court, the petitioner will suffer irreparable loss and injury. 6. Being aggrieved by and dissatisfied with the letter dated 16th September, 1993 passed by the respondent No.2, (Annexure "G") to the writ petition, the petitioner has come before this Court for appropriate reliefs. 7. The following prayers have been made in the writ petition:- "(a) Issue a writ in the nature of Mandamus commanding the respondents, their agents and/or subordinates and each of them to rescind, recall and cancel the impugned order dated 16th September, 1993 passed by the respondent No.2 and issued a further writ of Mundamus commanding the respondents to act in accordance with law and give full effect to the order dated 6.9.1993 and-issued a further writ of Mandamus commanding the respondent No.2, the Pro-Vice-Chancellor (Academic) to carry out the positive direction/order of the Hon'ble Mr. Justice Shyamal Kumar Sen passed in the instant matter on 6.9.1993 (Annexure "E") and to get the petitioner's Answer scripts in Drafting of Pleadings and Documents, Equity and Trust, Company Law and Taxation, reviewed by competent examiner and to publish the final Mark Sheet on the basis of the results of such review. (b) Issue a Writ of Certiorari commanding the respondents to certify and transmit to this Hon'ble Court all records including the original Rule prohibiting the examinee candidate to allow to review more than two papers in LL. B. (3 years) Examination of the Calcutta University and the answer script papers so that this Hon'ble Court may peruse and consider the same and on such consideration do conscionable justice and quash the Rules; etc." 8. In the affidavit-in-opposition filed on behalf of the respondent No.1, it has been stated that the petitioner had appeared at the final examination in law (under revised Regulations), 1985 held in June, 1991 by the University and his Roll No. was Roll Cal. No. 1226. All the Material allegations made in the writ petition against the University and other respondents have been denied. It has been stated in the A/O that the petitioner applied for re-examination of the answer scripts of papers 1st and 5th and under the Rules he was entitled to apply for re-examination of the answer-script of two papers as he had obtained 45% marks on an average in respect of the remaining four papers. Originally in paper 5th, the petitioner have obtained 35% marks and on re-examination 7 marks have been added to the original marks. Originally in paper 1st, the petitioner obtained 37 marks and on re-examination 5 marks were added to the original marks. The hypothetical analogy drawn by the petitioner is based totally on speculation and imagination. The analogy of the petitioner if accepted as correct would lead to an un-ending process of indiscipline and chaos. The writ jurisdiction of this Court cannot be invoked because of the speculation of the petitioner. It has been denied that the Rules for Post-Publication Review of Answer Scripts are arbitrar or unreasonable. The power to frame its Rules and Regulations is fully within the domain of the University, the petitioner has no right whatsoever to claim re-examination of his answer papers. It has been denied that the Rules for Post-Publication Review of Answer Scripts are arbitrar or unreasonable. The power to frame its Rules and Regulations is fully within the domain of the University, the petitioner has no right whatsoever to claim re-examination of his answer papers. It has been stated that by the order dated 6th September, 1993 the Hon'ble Court expressed an expectation and the Pro- Vice-Chancellor (Academic) considered the representation and passed an order in accordance with the Rules and Regulations in compliance with the direction of the Hon'ble Court. It has been stated that the grounds are wholly mis-conceived and based on speculative, and wild imagination and unfounded allegations. The petition should be dismissed with costs. 9. In the affidavit-in-reply the petitioner has denied the material allegations made in the A/O. He has reiterated the position taken by him in the original writ petition. 10. The learned Lawyer of both the sides have addressed this Court at length. It appears that the main contention of the learned Lawyer of the petitioner is that the University-respondent has not complied with the direction of this Hon'ble Court passed on 6th of September, 1993 in the earlier writ petition by the petitioner. The contention of the learned lawyer for the petitioner is that the Pro-Vice-Chancellor (Academic) has in a sense over-ridden the direction of this Hon'ble Court passed in the said order. If the question is that there was a mandatory direction by this Hon'ble Court in its order dated 6th September, 1993 then it is clear that the petitioner ought to have moved the proper Court for contempt of the order of this Court. The learned Lawyer for the petitioner has submitted that the said course would be certainly open to his client but the alternative course to file a fresh writ petition was also open to him. Therefore, his writ petition cannot be refused on that ground alone. It has been submitted by the learned lawyer of the University-respondent that the order dated 6th September, 1993 was not mandatory but only contained an expectation by the Hon'ble Court about what the Pro-Vice-Chancellor (Academic) would have to do on a fresh application for review of four papers being made. The order has got to be read as a whole to ascertain its true nature. 11. The order has got to be read as a whole to ascertain its true nature. 11. It appears that in paragraph 1 of the order dated 6th of September, 1993 a direction has been given to the petitioner to make a representation for review before the Pro-Vice-Chancellor (Academic) who was to consider the said representative sympathetically and review the other four papers and dispose of the representation. In the 2nd paragraph it has been stated that the decision will have to be taken within a particular time. In the said paragraph there is an expectation by the Court that the Pro-Vice-Chancellor (Academic) would allow such review of all the four papers in view of the peculiar facts and circumstances of the case. The whole exercise would not be treated as a precedent. 12. It is palpably clear from the order read as a whole that the language used by the Hon'ble Court conveyed an expectation that the Pro-Vice-Chancellor (Academic) would allow the review of all the four papers in the facts and circumstances of the case. In the 1st paragraph of the order the words "the Pro-Vice-Chancellor (Academic) will consider the said representation sympathetically and review the other four papers" has got to be construed in the context of the entire order specially when in the second paragraph it has been specially stated that the Court only "expected" that the Pro-Vice-Chancellor (Academic) would allow the review of all the four papers. It would be redundant to use the words "it is expected" in the second paragraph if there was a mandatory direction given in the first paragraph by the words as quoted above. This view is also strengthen by the fact that the learned Court did not consider it necessary to pass any view about the legality of the rules for Post-Publication Re-examination of answer-scripts and was very careful to indicate that the order dated 6th September, 1993 should not be treated as a precedent. In the considered view of this Court, the said order did not issue any mandate upon the Pro-Vice-Chancellor (Academic) to allow the representation for review in other four papers. The matter was left to the discretion of the authority concerned under the law. 13. The main use of mandamus in this country has been to enforce statutory duties. In the considered view of this Court, the said order did not issue any mandate upon the Pro-Vice-Chancellor (Academic) to allow the representation for review in other four papers. The matter was left to the discretion of the authority concerned under the law. 13. The main use of mandamus in this country has been to enforce statutory duties. In such cases mandamus can be issued only to exercise discretion when occasion arises and to exercise it according to proper legal principles. A distinction is made in this context between a power coupled with duty, and a complete discretion. In the former case, enabling words are compulsory. Reference has to be made in this context to the famous case of (1) Julius v. Biship of Oxford, (1890)5 AC 214. It has been stated therein :- "There may be something in the nature of the thing empowered to be done, something in the object for which it has to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person to whom the power is reposed to exercise that power when called upon to do so." 14. The Supreme Court referred to this in (2) Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd., AIR 1950 SC 218 and in a catena of cases thereafter. When a statute, while conferring power, prescribes the mode of exercise of that power, the power has to be exercised in that manner or not at all. This view was first expressed in (3) Nazir Ahmed v. King Emperor, AIR 1936 PC 253(2). This view was reiterated in (4) Ramana Dayaram v. International Airport Authority of India, AIR 1979 SC 1628 . 15. Use of power for a purpose other than that for which the power is conferred is mala fide use of that power. There is a distinction between misuse of power in good faith and misuse in bad faith. The former arises when an authority exercises its power in breach of the law, say by taking into account, bona fide and with best of intentions, some extraneous matter or by ignoring relevant matters. There is a distinction between misuse of power in good faith and misuse in bad faith. The former arises when an authority exercises its power in breach of the law, say by taking into account, bona fide and with best of intentions, some extraneous matter or by ignoring relevant matters. This would render the Act or order ultra vires vide (5) Somawati v. State of Punjab, AIR 1963 SC 151 . The misuse in bad faith arises when the power is exercised for an improper motive to satisfy a private or personal grudge or for wrecking vengeance vide (6) Pratap Singh v. State of Punjab, AIR 1964 SC 72 . 16. The law recognises certain principles on which discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any Court of law. It was laid down in (7) Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947)2 All ER 630 as follows :- "What then are those principles? They are perfectly well understood. The exercise of such discretion must be a real exercise of discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising discretion ought to have regard then, in exercise of the discretion, they must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters...... Bad faith, dishonestly-those, of course, stand by themselves-unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have ail been referred to as being matters which are relevant for consideration...... It is true the discretion must be exercised reasonably. What does that mean? It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matter which are irrelevant to the matter that he has to consider...... Similarly, you may have something so absurd that no sensible person could ever dream that it Jay within the powers of the authority". 17. In our case. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matter which are irrelevant to the matter that he has to consider...... Similarly, you may have something so absurd that no sensible person could ever dream that it Jay within the powers of the authority". 17. In our case. in the context of the legal principles as stated above, it is found that the Pro-Vice-Chancellor (Academic) who was to "Consider the representation of the petitioner sympathetically gave anxious consideration to the rules of the University regarding Post-Publication Re-examination of Answer Scripts which were relevant as the principles within which the discretion had to be exercised. The said Rules were not struck down by the Hon'ble Court. No extraneous matter was taken into consideration for arriving at the decision by the Pro-Vice-Chancellor (Academic). The order of this learned Court did not create a statutory obligation as it has already been discussed above that there was no mandate upon the Pro-Vice-Chancellor (Academic) to allow the review application. It was only expected by the Hon'ble Court that the Pro-Vice-Chancellor (Academic) would allow the review of all the four papers, in view of the facts and circumstances of the case. No mala fide motive has been imputed to the authority concerned in this case. No writ Court does act as an Appellate Forum and as such no mandamus can be issued to question honest decision of an authority, even though erroneous, as a wrong decision is also one within the jurisdiction of the authority. A court will not compel any authority to exercise the power which is merely permissive and it does not impose an obligation to act. In this view of the matter, this Court is not inclined to invoke its extraordinary jurisdiction in favour of the petitioner in this case. The writ petition is thus disposed of. There will be no order as to costs. Xerox copy of this order be given to the learned lawyers on usual undertaking.