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2005 DIGILAW 217 (KAR)

SOUMI SAMUEL v. STATE OF KARNATAKA

2005-03-21

S.ABDUL NAZEER

body2005
( 1 ) THE petitioner had joined A. B. Shetty Memorial Institute of Dental sciences, Mangalore (for short, 'college') for the study of Master of dental Surgery Course (MOS' for short) in Oral and Maxillofacial surgery subject for the academic year 2001-2002. The college is affiliated to 2nd respondent-University. The petitioner appeared for the mds examination held by the University in September 2004 and failed in the said examination. He has secured 190 marks out of 400 marks in theory paper and 150 out of 300 in practicals and viva voce put together. As per the relevant ordinance of the University, the minimum marks for a pass are 50% in theory and 50% in practical including clinical and viva voce. The petitioner is short by 10 marks in theory paper for a pass. He filed an application for re-totalling of his marks. The result of re-totalling was informed on 14-2-2005 with no change of marks. On 15-2-2005 he filed representation to the University (as per Annexure-A) for revaluation of his answer scripts. Since the University did not consider the said representation, he has filed this writ petition for the following reliefs: (i) for a writ of mandamus directing the University to consider his representation dated 15-2-2005; (ii) for a writ of mandamus directing the University to insert a provision for revaluation of answer scripts in the relevant ordinance. ( 2 ) I have heard the learned Counsels for the parties and perused the materials placed on record. ( 3 ) LEARNED Counsel for the petitioner submits that the University by a communication dated 10-3-2005 has informed the petitioner that his request for revaluation cannot be acceptable as there is no provision for revaluation of the answer scripts in the relevant ordinance. In view of the aforesaid submission of the learned Counsel, the first prayer in the petition does not survive for consideration. ( 4 ) LEARNED Counsel for the petitioner submits that the petitioner was expecting 250 marks out of 400 in theory papers. The marks awarded by the examiner are far less. Therefore, his answer scripts are required to be revalued. It is further argued that there is no prohibition for revaluation of the answer scripts in the ordinance of the University. Alternatively, it is argued that the University should be directed to provide for revaluation of the answer scripts by suitably amending the ordinance. Therefore, his answer scripts are required to be revalued. It is further argued that there is no prohibition for revaluation of the answer scripts in the ordinance of the University. Alternatively, it is argued that the University should be directed to provide for revaluation of the answer scripts by suitably amending the ordinance. On the other hand, learned Counsel for the respondent's submit that there is no provision providing of revaluation of answer scripts. Therefore, question of revaluation of petitioner's answer scripts does not arise. It is further argued that this Court cannot direct the university to amend its ordinance as claimed by the petitioner. ( 5 ) THEREFORE, the questions for consideration in this petition are: (i) Whether the petitioner is entitled for revaluation of his answer scripts in the absence of an ordinance to that effect? and (ii) Whether this Court can direct the University to insert a provision in its ordinance providing for revaluation of the answer scripts? ( 6 ) THE Rajiv Gandhi University of Health Sciences Act, 1994 (for short, 'act') has come into force with effect from 1-6-1996. Chapter IV of the Act provides for Constitution of Authorities of the University. The syndicate of the University is constituted as per Section 24 of the Act. The members of the Syndicate are academicians and experts in the field of education and in particular education in health sciences. Section 26 of the Act provides for Constitution of the Academic Council of the university. The Academic Council is the Principal Academic body of the university to co-ordinate and exercise general supervision over the academic policies of the University subject to the provisions of the Act, statutes and ordinances made for the said purpose. ( 7 ) SECTION 35 (1) of the Act provides for making of ordinances by the syndicate from time to time and amend the repeal the same. Section 35 (2) (c), (d) and (i) of the Act empowers the Syndicate to make ordinance providing for conditions under which students shall be admitted to the courses of study, leading to degrees, diplomas and other academic distinctions of the University and conduct of examinations of the university and conditions under which students shall be admitted to such examination, and in all other matters which by the Act or by the statutes are to be or may be provided by the ordinances. Section 35 (3) of the Act states that every ordinances made by the Syndicate in the matter relating to conduct or standard of examination shall consult the academic Council. ( 8 ) THE Syndicate of the University has made an ordinance called 'revised Ordinance Governing Master of Dental Surgery (MDS) Degree course - Three Year Scheme' in exercise of the powers vested in it under section 35 (2) of the Act. The ordinance has come into force from the academic year 2001-2002. The ordinance discloses that it was placed before the Academic Council and thereafter it was placed before the syndicate. The ordinance provides for the branches of study in MDS course, eligibility for admission, criteria for selection for admission, duration of the course, method of training, attendance, progress and conduct, monitoring progress of studies, dissertation, scheme of examination, University examination, criteria for declaration of pass etc. Clause 13 of the ordinance provides the criteria for declaring as pass which is as follows.-"to pass in the University examination, a candidate shall secure in both theory examination and in practical/clinical including viva voce independently an aggregate of 50% of total marks allotted (200 marks out of 400 allotted for theory and 150 out of 300 for clinical and viva voce together)". ( 9 ) THE University has made another ordinance called 'rajiv Gandhi university of Health Sciences Revised Ordinance Governing verification/re-totalling of marks of answer scripts of Undergraduate and Post-Graduate Courses' dated 20-12-2004. This ordinance provides for verification/re-totalling of marks in case a student of the University is not satisfied with the marks obtained by him/her in any of the theory papers. ( 10 ) AS noticed above, the petitioner did not secure 200 marks out of 400 allotted for theory papers. Therefore, he is declared as failed in the examination by the University. The ordinances admittedly do not provide for revaluation of answer scripts. ( 11 ) IN Maharashtra State Board of Secondary and Higher Secondary education and Another v Paritosh Bhupesh Kurmarsheth , the Apex court has held that a candidate who has appeared for Secondary education examination of Maharashtra, had no right to have inspection or revaluation of his answer scripts as the same was prohibited by the rules. The Court has further held that such a rule was reasonable and not arbitrary. The Court has further held that such a rule was reasonable and not arbitrary. ( 12 ) IN Sudha N. S. v State of Karnataka and Another, this Court has held that where there is no right for inspection or revaluation of answer scripts in an examination, it follows that the question of the Court adjudicating as to the correctness of the answers furnished by the student or as to the correctness or sufficiency of marks awarded does not arise. It is further held that it is not open to the High Court to direct the board to award marks or more marks than the marks awarded by the valuer to any answers or direct revaluation of answer scripts. ( 13 ) IN Kumari R. Shubha Sangeetha v Rajiv Gandhi University of plealth Sciences, Bangalore and Another , a Division Bench of this Court has held that since the University has not provided a provision for revaluation or for re-totalling it is manifest that the intention of the university is not to provide for revaluation or re-totalling. It has been held thus:"that on a reading of the regulations covering M. B. B. S. Degree programme which came into force by virtue of the notification dated 14-10-1996 that no where it is provided either for revaluation or for re-totalling and it is manifest that the intention of the University is not to provide for revaluation or for re-totalling and thereby it has not adopted the whole of the regulations of the Karnataka State Universities Act, 1976 to provide the benefit of revaluation or re-totalling to the students who have failed in the examination". ( 14 ) IN Union of India and Another v Kirloskar Pneumatic Company limited and in K. S. Bhoir v State of Maharashtra and Others , the apex Court has held that Article 226/227 of the Constitution of India cannot be invoked for directing the authorities to act contrary to the statutory provisions. ( 15 ) IN the present case, since the University has not provided an ordinance for revaluation of answer scripts, the claim of the petitioner for revaluation of his answer scripts as per his representation is without any basis and the University has rightly rejected the same. ( 15 ) IN the present case, since the University has not provided an ordinance for revaluation of answer scripts, the claim of the petitioner for revaluation of his answer scripts as per his representation is without any basis and the University has rightly rejected the same. The ordinance was made by the Syndicate of the University in consultation with the Academic Council consisting of academicians and experts in the field of education in health sciences. The procedure to be adopted for evaluating the answer scripts is a matter of academic policy of the university. The University is entitled to determine how the answer script should be evaluated and this Court cannot introduce its own notions in such academic matters. When the University in its wisdom has not provided for revaluation of answer scripts, this Court cannot direct the University to revalue the answer scripts contrary to its ordinance. The students cannot have any inherent right for revaluation of answer scripts in the absence of an ordinance to that effect. The power conferred under Article 226 of the Constitution of India is designed to effectuate the law, to enforce the rule of law, and to ensure that the authorities and organs of the State Act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. A writ of mandamus directing the University to revalue the answer scripts cannot be issued as the existence of such a right and a corresponding duty on the part of the University is a condition precedent for the issue of a writ of mandamus. ( 16 ) THAT brings me to the 2nd question namely whether this Court can direct the University to insert a provision providing for revaluation in its ordinance. A University is a place of Higher Education where the personality and capacities of the students are developed to the utmost by the teachers. It is an institution for higher education and research. The statutes, ordinances and the rules passed by its authorities have statutory force as the University is an "authority" under Article 12 of the constitution of India. A University is a place of Higher Education where the personality and capacities of the students are developed to the utmost by the teachers. It is an institution for higher education and research. The statutes, ordinances and the rules passed by its authorities have statutory force as the University is an "authority" under Article 12 of the constitution of India. ( 17 ) THE Apex Court in Maharashtra State Board of Secondary and higher Secondary Education's case has observed that the Court should be reluctant to substitute its own views in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions. It has been held as follows.-"far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the high Court while deciding the instant case". ( 18 ) THE ordinance of the University was made by the Syndicate of the university in consultation with its Academic Council consisting of academicians and experts in the field of education in health sciences. The validity of the said ordinance is not under challenge. ( 18 ) THE ordinance of the University was made by the Syndicate of the university in consultation with its Academic Council consisting of academicians and experts in the field of education in health sciences. The validity of the said ordinance is not under challenge. As held by the apex Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by experts in the field of education. The method adopted by the University for evaluation of answer scripts is its academic policy and this Court cannot interfere with such policy in the absence of arbitrariness. I am of the view that this Court cannot direct the University to make an ordinance providing for revaluation of answer scripts. ( 19 ) THE petition is devoid of merits and it is accordingly dismissed. No costs. --- *** --- .