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2000 DIGILAW 641 (CAL)

Pratima Paul v. University of Calcutta

2000-12-18

D.P.Kundu

body2000
JUDGMENT D.P. Kundu, J. Ms. Pratima Paul, the writ petitioner, appeared in B.A. (Two year Pass) Examination, 1999 held by University of Calcutta. She failed to pass in two subjects out of three. There is no dispute that, in each pass subject without practical, an examinee has to obtain 90 marks out of300 marks. It is evident from the Mark-sheet of the writ petitioner that in Bengali (Pass Subject) she obtained 86 marks out of 300, in Political Science (Pass Subject) she obtained 83 marks out of 300 and in Geography (Pass Subject) she obtained 152 marks out of 300. As a result she failed to pass B.A. (Two Year Pass) Examination, 1999 conducted by University of Calcutta. 2. In the present writ proceeding the writ petitioner has prayed for an appropriate order in the nature of mandamus commanding the respondents to rescind and/or withdraw and/or set aside the "Rules" imposing conditions upon the examinees restricting their rights to apply for re-examination of the answer scripts in respect of not more than two papers and standard of at least 40% marks in remaining papers for being eligible for re-examination. 3. It is apparent from annexure 'A' of the affidavit in opposition filed on behalf of the respondent Nos. 1 and 3 and affirmed on 24th day of November, 2000 by Dr. Tapan Kumar Mukherjee, the Registrar of University of Calcutta that by a notification No. CSR/3/94, it was notified by the University of Calcutta for information of all concerned that the Syndicate of the University, on 28th January, 1994, approved a revised regulation for re-examination of answer scripts of B.A./B.Sc./B.Com. Examinations. 4. The relevant part of the aforesaid notification is set out hereunder: "B.A./B.Sc./B.Com Pass examination In the case of B.A./B.sc./B.Com. pass examinations a candidate who failed or passed in the examination can seek re-examination of not more than two Theoretical Papers (not necessarily belonging to the same subject),'provided he/she secures at least 40 per cent of the total marks in the remaining papers of the examination." 5. pass examinations a candidate who failed or passed in the examination can seek re-examination of not more than two Theoretical Papers (not necessarily belonging to the same subject),'provided he/she secures at least 40 per cent of the total marks in the remaining papers of the examination." 5. Clause (xix) of section 22 of the Calcutta University Act, 1979 (hereinafter referred to as "the Act") laid down that subject to the provisions of the said Act the Syndicate of the University shall exercise the powers to make Regulations regarding the conduct of examinations held by the University and the condition under which students may be admitted to the different courses of studies and the examinations held by the University. Clause (xxxiii) of section 22 of the said Act empowers the Syndicate of the University to exercise all other powers and perform all other functions conferred and imposed on the Syndicate by or under the said Act. Clause (d) of section 54 of the said Act lays down that subject to the provisions of the said Act and Statute and Ordinances, Regulations may be made to provide the rules for the conduct of University examinations. Clause (vi) of section 26(1) of the said Act lays down that subject to the provisions of the said Act and the Statutes, the Ordinances and the Regulations, a Council for Undergraduate Studies shall exercise the power to hold and conduct examinations and to approve and declare the results of the examinations within such period as may be prescribed. Section 16(2) of the said Act defines the term "prescribed" to mean prescribed by Statutes or Ordinances or Regulations. Section 21(2) of the of said Act defines "Statutes", "Ordinances" and "Regulations" to mean, respectively, the Statutes, Ordinances and Regulations made under the said Act and they shall be deemed to be rules within the meaning of clause (xxxvi) of section 3 of the Bengal General Clauses Act, 1899. Therefore, Regulations framed by the Syndicate, in my opinion, have force of law and such Regulations are framed by the Syndicate in exercise of legislative power. 6. Except Regulations framed by the Syndicate of the University no other provision of law has been brought to the notice of this Court conferring any right to re-examination upon an examinee. In my opinion, an examinee cannot claim re-examination as of right. 6. Except Regulations framed by the Syndicate of the University no other provision of law has been brought to the notice of this Court conferring any right to re-examination upon an examinee. In my opinion, an examinee cannot claim re-examination as of right. The right to re-examination is a creature of the Regulations framed by the Syndicate and an examinee can pray for or can claim for re-examination only in accordance with the Regulations framed by the Syndicate. If under the Regulations framed by the Syndicate an examinee is found to be ineligible for re-examination, I am of the view that then the Court cannot direct the University or its authorities to re-examine the answer scripts of an examinee in breach of the Regulations framed by the Syndicate. 7. The learned advocate for the petitioner argued that the Regulation framed by the Syndicate and circulated by Notification No. CSRJ3/94, so far the same relates to BA/B.Sc./B.Com (pass) Examination, is arbitrary and discriminatory and is violative of Article 14 of the Constitution of India. The learned Advocate for the petitioner elaborated his argument in the following manner:- (a) In pass examination a candidate requires only 30% marks in each subject to pass through the Examination. Therefore, fixing 40% of the total marks in the remaining papers of the examination is arbitrary and violative of Article 14 of the Constitution of India; (b) The regulation laying down that an examinee who failed or passed in the examination can seek re-examination of not more than two Theoretical Papers (not necessarily belonging to the same subject) is also arbitrary and discriminatory inasmuch as it has limited the scope of re-examination only in respect of two Theoretical Papers. According to the learned advocate for the petitioner the Regulation ought to have made provision for re-examination of all papers of the subject in respect of which the examinee failed to pass. 8. The respondent Nos. 1 and 3 and in their Affidavit-in-Opposition in Paragraph 4(d) stated that the revised regulations for re-examinations has been framed by a body consisting of experts, viz., the Syndicate of the University, having expertise in academic matters. 8. The respondent Nos. 1 and 3 and in their Affidavit-in-Opposition in Paragraph 4(d) stated that the revised regulations for re-examinations has been framed by a body consisting of experts, viz., the Syndicate of the University, having expertise in academic matters. It was stated in the said sub-paragraph of the Affidavit-in-Opposition that the restriction relating to seeking of re-examination of not more than two Theoretical papers and securing of 40% marks in the papers other than the ones sought to be reviewed is in the realm of a policy decision and hence is not justiciable. It is also stated in the said subparagraph of the Affidavit-in-Opposition that the competent examiners were engaged to examine the answer scripts of diverse candidates to ensure that answer scripts of the examinee are examined fairly and properly. It was further stated in the said sub-paragraph of the said affidavit - "However the possibility of inadvertent mistakes being committed while evaluating answers or while adding up the numbers given to the answers or while posting of marks from the answer scripts to the Award Slips or while posting marks from Award Slips to the Tabulation Rolls cannot be totally ruled out and in order to safeguard against such mistakes, re-examination is permitted subject to the conditions mentioned in the Rules." 9. It was stated by the respondent Nos. 1 and 3 that the possibility of permission of such mistakes are not rampant and the same is very very insignificant having regard to the number of scripts examined by the examiners engaged by the University each year. In the said sub-paragraph of the said Affidavit-in-Opposition it was also stated - "The Syndicate of University at the time of framing the Regulations had in mind that if an examinee who has scored high percentage of marks in majority of papers but has scrored very low marks in one or two papers, the probability of mistakes having crept in at the time of evaluation and/or assessment of such scripts and/or posting of marks to the Award Slips/Tabulation Rolls would be higher; and that if an examinee has scrored very low or low marks in all papers, probability of mistakes having been committed in the matter of evaluation of each and every paper and/or posting of marks would be much less. The members of the Syndicate felt that a cut-off mark would be required to be fixed to eliminate indiscriminate applications being made by the examinees who have not secured marks above the cutoff mark and accordingly had fixed 40% marks as the cut-off mark which is to be secured by an examinee as a condition precedent in the papers other than the ones for which review is sought. This was done to ensure that genuine and deserving candidates are not denied their legitimate dues. That apart, the restriction regarding number of papers for which re-examination is permissible cannot be said to be not founded on any legal basis inasmuch as if the examinees are allowed to seek re-examination of all the answer scripts, it would open a flood gate of applications which would throw the entire examination system out of gear." 10. The learned counsel for the respondent has drawn my attention to two decisions of two different Single Benches of this High Court. One of them is "Smt. Bijoya Das vs. State of West Bengal & Ors." reported in CAL LT 1999 (1) HC 235 and the other one is an unreported decision passed by Barin Ghosh, J. on February 15, 1999 in W.P. No. 223 of 1999 (Ms. Swarnashree De vs. The University of Calcutta & Ors.). 11. It appears from the aforesaid two decisions that the Regulations framed by the Syndicate and notified by Notification No. CSR/3/94 were called in question in those two writ proceedings and both the learned Judges held that the Regulations framed by the Syndicate are legal and valid. I am also of the view that the reasons stated by the respondent Nos. 1 and 3 in their Affidavit-in-Opposition, the relevant parts of which have been quoted hereinabove, clearly show that the Regulation framed by the Syndicate which is under challenge in the present Writ Proceeding is supported by reasons and it cannot be said that cut-off mark of 40% has been laid down arbitrarily. The reasons for limiting the scope of re-examination in respect of only two Theoretical Papers (not necessarily belonging to the same subject) is also backed by reasons. In my opinion, the respondent Nos. The reasons for limiting the scope of re-examination in respect of only two Theoretical Papers (not necessarily belonging to the same subject) is also backed by reasons. In my opinion, the respondent Nos. 1 and 3 correctly stated that the objective of the revised Regulations for re-examination is not to provide each and every aggrieved candidate to seek re-examination of answer scripts in respect of all the papers in which they have performed poorly. I am of the view that if re-examination of all the papers in which the examinees have performed poorly is permitted and if re-examination is accepted as a matter of right then it will throw the entire examination system out of gear. I am of the view that the conditions for reexamination as contained in the above quoted Regulation are just, fair and reasonable and the conditions do not violate any provision contained in Part III of the Constitution of India. 12. In view of the discussions made hereinabove I do not accept the arguments made by the learned advocate for the petitioner. I find that the writ application has no merit. The writ application is dismissed. Interim order, if there be any, is vacated. The seal cover containing the answer scripts of the writ petitioner is lying with the learned advocate for the respondents who is directed to return the same to the appropriate authority. 13. All parties concerned are to act on a signed copy of the minutes of the operative portion of this judgment on the usual undertakings. Writ application dismissed.