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2003 DIGILAW 672 (SC)

SAYYED AQUEEL ARIF v. UNIVERSITY OF PUNE

2003-05-01

body2003
ORDER 1. The appellant joined the first year MBBS in the third respondent medical college affiliated to the first respondent University on 19-8-1992. On 8-4-1994 the first respondent University issued a circular by which Ordinance 134-A-B was framed laying down the procedure for verification and revaluation of marks. The material portions thereof for Our purpose as under: "Clause (2) The revaluation includes the process of verification. If on verification of marks, it is found that the marks originally shown in the marks list issued to a candidate have changed, as a result of verification, the changed marks shall be considered as original marks for the purpose of revaluation. Clause (4) A candidate shall submit an application only in the prescribed form to the Registrar or Deputy Registrar (Exams), University of Pune for: (i) Verification under Ordinance 149 along with fee of Rs 50. or (ii) Revaluation, along with the fee of Rs 150 for verification and revaluation per head of passing in theory paper within three weeks from the date of declaration of the University result, through the principal of respective college. The external students should apply directly to the University following the regular procedure. Clause (7) The benefit of the revaluation shall be given to a candidate if the original marks and the marks obtained after revaluation exceed by 10% or more of the maximum marks of the theory paper or papers and only these marks will be accepted by the University and binding on the candidates. However, in extreme cases, the Vice-Chancellor may use his discretion for getting second opinion for revaluation. For the purpose of computing the 10% difference in marks, half per cent of the marks assigned to the paper or a part thereof shall be taken into account and rounded off for next successive higher integer." 2. The appellant appeared for the first MBBS examination in May 1994, hut failed in three subjects - Biochemistry, Physiology and Anatomy. He again appeared in the examination in October 1994 and also in May 1995, but did not pass. He cleared his Biochemistry paper by appearing again in October 1995. He failed to clear the Physiology and Anatomy papers in the attempt which he took in May 1996. He did not take the examination in October 1996. He again appeared in the examination in October 1994 and also in May 1995, but did not pass. He cleared his Biochemistry paper by appearing again in October 1995. He failed to clear the Physiology and Anatomy papers in the attempt which he took in May 1996. He did not take the examination in October 1996. The appellant took his last chance for appearing in the examination in May 1997 and cleared the paper in Anatomy, but failed in Physiology by getting 84 marks out of 200 in which the minimum marks required for passing was 100. 3. The appellant applied for revaluation by submitting a composite application for verification and revaluation of his marks. On 25-7-1997, the appellant was informed by the Assistant Registrar of the first respondent University that, as a result of the verification, he had earned four additional marks making a total of 88 marks out of 200 in the subject of Physiology. On 30-8-1997, the first respondent University informed the appellant that after revaluation there was no change in his marks in Physiology. On the appellants making queries with the Controller of Examination, the appellant was informed that although on verification he had secured sixteen more marks and his marks upon revaluation came to 104, since the increase was less than 10% as required under clause (7) of Ordinance 134-A _ B, no change would he effected in the marks secured by him in the subject of Physiology. The appellant entered into correspondence with the first respondent University pleading for an increase in the number of marks in the subject of Physiology, but failed to persuade the University. 4. The appellant moved the High Court by filing a writ petition which was rejected by the Division Bench of the High Court. The High Court took the view that there was a difference between the two processes, namely, the process of verification and the process of revaluation. Verification had to be done first and consisted of rectification of arithmetical mistakes with regard to the marks assigned, while revaluation would require reappraisal of the answers given by the candidate. The High Court noticed that the appellant had secured 84 marks in the subject concerned, which on verification became I 88 and on account of revaluation he was awarded 104 marks. However, since this was less than 10% i.e. 20 marks, no effect was given to the revaluation. The High Court noticed that the appellant had secured 84 marks in the subject concerned, which on verification became I 88 and on account of revaluation he was awarded 104 marks. However, since this was less than 10% i.e. 20 marks, no effect was given to the revaluation. In this view of the matter, the High Court rejected the writ petition. The appellant, being aggrieved, is before us by special leave. 5, When the appellant moved this appeal, by an order made on 12-102000 this Court granted leave and an interim order as a result of which he was permitted to Pursue his further studies in the medical college continuously, subject to his otherwise being eligible and satisfying other requirements under the Rules. We are informed that, as a result of this interim relief, the appellant has passed the second MBBS examination and is currently pursuing his studies for the final year MBBS. 6. As to the interpretation of the Ordinance concerned, we are of the view that the interpretation put thereupon by the High Court is correct. Clause (2) of Ordinance 134-A-B specifically provides that after the process of verification of marks is done, the marks obtained as a result of verification "shall be considered as original marks for the purpose of revaluation". Thus, before the process contemplated in clause (7) of the Ordinance is initiated, the marks arrived at as a result of the process of verification under clause (2) is taken as the basis. With this as the basis, revaluation is carried out as contemplated under clause (7). Unless there is a difference of 10% or more of the total marks between the "original marks" and the marks awarded after revaluation, no effect is given to the revaluation. The words "original marks", of course, have to be read and understood as defined in clause (2) of the Ordinance, meaning thereby, the marks obtained after the verification process. 7. We are satisfied that the Ordinance was correctly applied to the case of the appellant. Since the difference between the "original marks" within the meaning of clause (2) arrived at as a result of verification, did not exceed 10% of the maximum marks, the appellant was rightly denied the benefit of the revaluation for the purpose of clause (7) of the Ordinance. 8. Since the difference between the "original marks" within the meaning of clause (2) arrived at as a result of verification, did not exceed 10% of the maximum marks, the appellant was rightly denied the benefit of the revaluation for the purpose of clause (7) of the Ordinance. 8. Our attention is drawn to a judgment of the learned Single Judge of the Bombay High Court in Viraf Noshir Bilimoria v. University of Mumbai1. This was a judgment rendered in connection with the Bombay University Ordinance dealing with the same subject which appears to be in pari materia, clause (6) of Ordinance 237-A there similarly declared that the "revised marks shall be considered far the purpose of revaluation" whenever the candidate applied for revaluation. The High Court there seems to have missed the significance of this specific provision in the Ordinance while interpreting the Ordinance. In our view, the interpretation put on the Bombay University Ordinance is therefore, clearly erroneous being contrary 10 the express language of the Ordinance. 9. Though we have upheld the interpretation placed on the Ordinance by the High Court, we are of the view that the appellant should be permitted to continue his studies for the third MBBS examination without affecting his result Since he has been permitted to do so on account of the interim order passed in the year 2000. As far as the appellant is concerned, he shall be given the benefit of 104 marks in Physiology irrespective of our decision in the present case. The University shall permit him to continue his Course of g studies, if he is otherwise found eligible under the applicable Rules, and declare his result for the second year MBBS on the basis that he obtained 104 marks in Physiology. 10. The appeal is allowed accordingly. There shall be no order as to costs.