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Gujarat High Court · body

2009 DIGILAW 421 (GUJ)

Arun Shushilkumar Bhakkad v. Gujarat University

2009-06-29

RAVI R.TRIPATHI

body2009
Judgment Ravi R. Tripathi, J.—The present petition is filed by a student who requires an appreciation of his performance right from Standard X, details of which are set out in Paragraph 3.1. Consistency in his meritorious performance requires a wholehearted appreciation more particularly when, starting from Standard X, he scored 89.29% marks, secured 23rd rank in the Chartered Accountant Examination Part I, scored 95.66% marks in Common Admission Test (CAT), 94% marks in Symbiosis National Aptitude Test (SNAP) and 93.6% marks in Xavier’s Aptitude Test (XAT). 2. The petitioner was surprised when his result of 3rd B.Com was declared. He was shown to have scored only 35 marks out of 70 in the subject of Business Organisation and Management (Part III). The petitioner applied for the reassessment and under the rules of reassessment of the respondent University which are certainly stricter, it was declared that he has scored 48 marks out of 70 in that subject. 3. It is stated that the rules are ‘stricter’ because as per the rules for reassessment, on an application being made, the reassessment of the answer book is done and if there is a difference of more than 15%, the reassessment is done once again and thereafter the marks which are closer to the original marks (the marks obtained prior to reassessment) are taken into consideration. Present is a case wherein the petitioner could successfully clear the aforesaid hurdle on his application for reassessment. On first reassessment being done the difference was found to be more than 15% and, therefore, his answer sheet was subjected to reassessment once again and thereafter he is awarded 48 marks out of 70. 4. The result was declared in the month of June 2008 (5.6.2008) and as it is likely to happen and as it is bound to happen, the petitioner was under a state of shock on learning about his result in the Business Organisation and Management (Part III) paper. It is only after passage of some time that he applied for reassessment and on reassessment he got the aforesaid result. 5. This is stated to answer the submission made by the learned Senior Advocate Mr. S.N. Shelat on behalf of the respondent University that though corrected mark sheet was issued to the petitioner on 1.9.2008 the petitioner filed the present petition only on 24.2.2009 and in between convocation has taken place on 19.2.2009. 6. 5. This is stated to answer the submission made by the learned Senior Advocate Mr. S.N. Shelat on behalf of the respondent University that though corrected mark sheet was issued to the petitioner on 1.9.2008 the petitioner filed the present petition only on 24.2.2009 and in between convocation has taken place on 19.2.2009. 6. The Court cannot be oblivious of the fact that a student whose meritorious career reflected in Para 3.1 of the petition is bound to get shock of his life as his dream of getting admission in reputed institution and the scholarship got shattered on account of ‘mistake’, it is immaterial whether it could be branded as a mistake or not. Before the petitioner could compose himself, the convocation took place and he was left deprived of his legitimate claim to get medal/s for the meritorious performance at the University Examination. 7. The learned Advocate for the petitioner invited attention of the Court to the fact that the prayer sought for in Sub-clause (i) of Clause (B) of Para 9 stands granted as the mark sheet is already issued duly corrected. So far as prayer sought for in Sub-clause (ii) of Clause (B) of Para 9, it also stands granted to the extent that he is awarded a certificate stating that he has achieved the highest marks and therefore the highest rank. The University has not contested the petition for these two reliefs. 8. The controversy which now survives in the petition is, ‘whether the condition mentioned in a printed form for applying for reassessment, can be a ground for denying the medal/s to the petitioner’. A copy of the application form for reassessment is produced as Annexure B, at page 31 and the rules governing reassessment are produced at pages 33 and 34. The same are referred to as ‘the reassessment rules’ as the same are so titled. 9. In fact the Court was required to pass an order on 24.3.2009. The relevant part of the order reads as under: “Heard learned Advocate Mr. Oza for the petitioner and Mrs. V.D. Nanavati for the respondent. Learned Advocate Mr. Oza submitted that the University has denied medal relying on Rule 12, which is printed on re-assessment application form. 9. In fact the Court was required to pass an order on 24.3.2009. The relevant part of the order reads as under: “Heard learned Advocate Mr. Oza for the petitioner and Mrs. V.D. Nanavati for the respondent. Learned Advocate Mr. Oza submitted that the University has denied medal relying on Rule 12, which is printed on re-assessment application form. Rule 12 is to the effect that, on re-assessment if marks or result of any student is improved, such student will not be entitled to receive any medal/scholarship/prize on the basis of that improved marks and/or result. Learned Advocate Mrs. Nanavati for the University will have to point out as to what is the nature of these re-assessment rules printed on the reassessment application form...”(emphasis supplied). 10. An affidavit is filed after 24.3.2009 affirmed on 13.4.2009 by one Mr. Jitendra Chaturbhai Lilani, Controller of Examinations, Gujarat University. Para 2 thereof reads as under: “2. I submit that under the provisions of the Gujarat University Act, the Executive Council is competent to frame Rules as regards conduct of examinations including moderation and internal assessment. The Executive Council has, in its wisdom, framed the Rules for reassessment in 1982 and subsequently with the experience gained the Rules are modified from time to time. These Rules for reassessment are part of the application form which an examinee is required to fill in. The examinee applies for reassessment subject to the conditions laid down in the said application form which forms a part of Rules for reassessment.” 11. In Paragraph 3, the deponent has emphatically submitted that, ‘the rules are eminently reasonable’. It is also stated that, ‘as a result of reassessment, there can be variation in the result of the students competing at the examination. Though the time limit is prescribed for reassessment, the Rules of reassessment requires more than one examiner to be consulted’. 12. This affidavit, is though filed pursuant to the aforesaid direction issued by this Court by order dated 24.3.2009, it does not state that fact. Besides it does not disclose the ‘nature of the re-assessment rules’, nor it discloses the source of these rules. All what is stated in this affidavit is as under: “2. I submit that under the provisions of the Gujarat University Act, the Executive Council is competent to frame Rules as regards conduct of examinations including moderation and internal assessment. Besides it does not disclose the ‘nature of the re-assessment rules’, nor it discloses the source of these rules. All what is stated in this affidavit is as under: “2. I submit that under the provisions of the Gujarat University Act, the Executive Council is competent to frame Rules as regards conduct of examinations including moderation and internal assessment. The Executive Council has, in its wisdom, framed the Rules for reassessment in 1982 and subsequently with the experience gained the Rules are modified from time to time. These Rules for reassessment are part of the application form which an examinee is required to fill in. The examinee applies for reassessment subject to the conditions laid down in the said application form which forms a part of Rules for reassessment.” (emphasis supplied). 13. This affidavit (affirmed on 13.4.2009) is very cleverly drafted and after mentioning the fact that, ‘the Executive Council framed Rules for reassessment in 1982’, it avoids furnishing the material information and only says that “...subsequently with the experience gained the Rules are modified from time to time...” Thus, the required information like the proceedings of Executive Council, its resolution number and date, placing on record as to when the present Rules were framed, is kept back. Later on, 1982 Rules are produced on record along with an affidavit affirmed on 7.5.2009. 14. In this very affidavit the deponent has stated in Paragraph 4 as under: “4. I submit that there has been a very unfortunate experience with the Gujarat University. The students have adopted malpractice to seek first rank or first class by seeking reassessment because the marks of students are known”. 15. It is shocking and painful too that none other than the ‘Controller of Examinations’ of the respondent University in an affidavit before the Court stated that “...there has been a very unfortunate experience.....” . “The students have adopted malpractice to seek first rank or first class......” If that is so, remedy is otherwise and not adopting a practice (‘practice’ because no material is placed to show that the so-called rules are framed by the competent authority) whereby a student is denied his rightful claim of getting medal/s. 16. In fact, on perusal of Rules of 1982 they are found to be not only just but also adequate to take care of any possible mischief which could be played by the students. 17. In fact, on perusal of Rules of 1982 they are found to be not only just but also adequate to take care of any possible mischief which could be played by the students. 17. So far as adopting of malpractice is concerned, it can be adopted not only at the stage of reassessment but it can as well be adopted at the time of assessment itself. On the contrary, rule 1 of 1982 Rules provided that in the event a student applies for reassessment of his answer books, the answer books of five students prior to his seat number and answer books of four students subsequent to his seat number will also be sent to the examiner. The very same rule authorised the Vice Chancellor to decide as to for whom the reassessment exercise will be undertaken. So far as question of grant of benefit of outcome of reassessment is concerned, 1982 Rules did not provide that the student will be granted restricted benefit only and that he will not be entitled to get medal/s. In fact, rule 8 provided that in the event there is change in the marks obtained by a student on account of reassessment, then he will be entitled to get benefit of examiner’s gracing and also the benefit flowing from Ordinances 139, 140 and 141 also. 18. Rule 5 of 1982 Rules provided with other things that the reassessment should be got done only with one examiner. But if on reassessment of the answer books the difference is more than 15 marks (in a question paper for 100 marks) and 11 marks (in a question paper for 70 marks) such case should be referred to another examiner for getting the reassessment done and of the two examiners, whose assessment is closer to the original result should be considered final. 19. The Court is of the opinion that thus Rule 5 takes care of any mischief being played by the students. Even otherwise the Court is of the opinion that students alone cannot play any mischief unless they are supported by more than one persons in power, including examiners. 20. 19. The Court is of the opinion that thus Rule 5 takes care of any mischief being played by the students. Even otherwise the Court is of the opinion that students alone cannot play any mischief unless they are supported by more than one persons in power, including examiners. 20. At this juncture, it will be appropriate to refer to the Rules on the subject of National Law University, Jodhpur wherein ‘Rule 9 of the Rules of Evaluation’ provides as under: “Because of the re-evaluation if a student secures more marks than the student entitled for gold medal then the person senior in the merit list will also get options to apply for the re-evaluation as per the rules”. 21. In the considered opinion of the Court, this rule takes care of the ‘possible mischief’ apprehended by the deponent - Controller of Examinations’. Therefore despite so-called rule 8 which provides for ‘non-entitlement of medal/s, scholarship/prize on the basis of the improved marks/result on reassessment’ the petitioner is entitled to receive the medal/s in accordance with law. 22. Only because the ‘convocation’ has already taken place on 19.2.2009 the Court cannot refuse granting of necessary relief to the petitioner. 23. By order dated 5.5.2009 this Court permitted the learned Advocate for the petitioner to implead ‘the affected party’ as a party respondent. The affected party - Respondent No. 2 is served with the process of this Court and learned Advocate Mr. S.R. Divetia appears for Respondent No. 2. The learned Advocate for Respondent No. 2 submitted that he adopts the arguments advanced by the learned Senior Advocate Mr. Shelat for the University. 24. Taking into consideration the submissions made by the learned advocates for the respondents, the Court is of the opinion that the matter deserves to be allowed and the petitioner is required to be granted the reliefs as prayed for. 25. Considering the bright academic record of the petitioner which is set out in the petition more particularly in ground No. C which is reproduced herein above for the ready perusal, the reliefs as prayed for are if not granted, it will work harsh on the petitioner and will justify the saying “operation successful, patient dies”. 26. 25. Considering the bright academic record of the petitioner which is set out in the petition more particularly in ground No. C which is reproduced herein above for the ready perusal, the reliefs as prayed for are if not granted, it will work harsh on the petitioner and will justify the saying “operation successful, patient dies”. 26. The Court cannot ignore the fact that the University is not able to produce any material to show that the so-called rules in the reassessment application form were framed by the Competent Authority. The respondent University has not produced any resolution passed by any authority, which is empowered to pass such resolution, so as to frame the Rule. In absence of such material the ‘so-called rules’ cannot be taken note of. So far as 1982 Rules are concerned they provide for grant of ‘benefit of reassessment’ by Rule 8. Not only that there is no ‘rule’ prohibiting the grant of medial/s on the basis of outcome of reassessment. Despite strenuous submissions made by the learned Senior Advocate for the respondent University, the Court is not convinced of any justification for providing so-called Rule 12 in the reassessment application form whereby a student is denied the fruits of reassessment. Even when the marks or the result of a student improves, on the basis of the reassessment student is not held entitled to receive the medal or prize. 27. The only ground put forward by the learned Senior Advocate for the respondent University in support of so-called Rule 12 is that, ‘there is a possibility of mischief being played by students by applying for reassessment’. This apprehension is misplaced and as discussed herein above such apprehension stands taken care of by Rule 5 of 1982 Rules. 27. The only ground put forward by the learned Senior Advocate for the respondent University in support of so-called Rule 12 is that, ‘there is a possibility of mischief being played by students by applying for reassessment’. This apprehension is misplaced and as discussed herein above such apprehension stands taken care of by Rule 5 of 1982 Rules. To reiterate, the possibility of a student playing mischief in initial assessment is much more than the possibility of mischief being played at the time of reassessment because once an application is made for reassessment after the result is out the student who has already secured more marks than the one who has applied for reassessment is there to take care to see that no mischief is played at the time of reassessment and therefore only on the ground that, ‘there is a possibility of mischief being played by a student by applying for reassessment and getting his result improved’ is not a ground to justify the so-called Rule 12 in the reassessment application form. 28. In fact the Court is convinced to make a recommendation to the respondent University that it is right time for it to go for a rule as is provided by the National Law University, Jodhpur, which is quoted in earlier part of this judgment. Till then 1982 Rules be followed ‘stricto senso’ as the same are also found to be ‘just’ and also ‘adequate’ to take care of ‘possible mischief’. If the course recommended is adopted by the respondent University it will be not only in the fitness of things but also in the interest of justice as it will be doing justice to the students. As against that if the Court allows the University to follow its present so-called rule No. 12 as provided in the reassessment application form, it is causing not only heart-burning to the petitioner but also injustice to the petitioner. As against that if the Court allows the University to follow its present so-called rule No. 12 as provided in the reassessment application form, it is causing not only heart-burning to the petitioner but also injustice to the petitioner. If the petitioner is entitled to have a gold medal on the basis of the marks obtained by him on reassessment, which is an outcome of a strenuous exercise as provided in present rule 11 analogous to Rule 5 of 1982 Rules which provides that ‘if on reassessment of an answer sheet the difference is found to be more than 15% in the total marks then that answer sheet will be subjected to one more reassessment and the marks scored in either of these two which are found to be closer to the original marks will be considered to be final’ and that will be taken into consideration, there is no reason for denying the same to him. 29. At this stage, learned Senior Advocate for the respondent University submitted that the petitioner has filed the petition at a belated stage. He submitted that the convocation has already taken place on 19.2.2009 and the petition was affirmed on 24.2.2009 and was filed on 25.2.2009. The learned Senior Advocate for the respondent University submitted that only on that short ground discretionary relief under Article 226 of the Constitution of India should be denied to the petitioner. 30. The learned Advocate for the petitioner invited attention of this Court to the averments made in ground (I) at page 15 of the petition which reads as under: “I. That orally the Registrar as well as Controller of the respondent - University had conveyed to the petitioner that necessary change will be made in the record of examinations, but the said officers have not made any such change for the reasons best known to them. With the result, the petitioner could not get any letter from the respondent prior to the said convocation function and when on 18.02.2009, the petitioner inquired with the respondent - University, orally it was told that as in the case of the petitioner, necessary change in the marks was made on 01.09.2008, the petitioner is not entitled for any benefit. Therefore, there was no time for the petitioner to approach this Hon’ble Court as convocation was fixed on 19.02.2009.” 31. Therefore, there was no time for the petitioner to approach this Hon’ble Court as convocation was fixed on 19.02.2009.” 31. Otherwise also filing of petition soon after the result was declared was not easy. It is only after thoughtful process on the part of the petitioner that a decision must have been taken to file petition against the University. By no stretch of imagination the delay can be said to be such which will dis-entitle the petitioner of the relief prayed for. 32. This being so the Court finds that the petition deserves to be allowed. It is accordingly allowed. The University is directed to award Gold Medal to the petitioner on the basis of the marks obtained on reassessment and also to issue necessary certificate showing the final result of the petitioner on that basis. Rule is made absolute. No order as to costs. 33. At this stage, learned Advocate for the University prayed that this decision may be stayed for some time. Learned Advocate for the petitioner vehemently opposed the prayer made by the learned Advocate for the respondent University. 34. In the facts the circumstances of the case, so far as the direction to the respondent University to issue certificate showing the final result of the petitioner on the basis of marks obtained on reassessment is concerned, the request to that extent is declined. 35. So far as the direction to the respondent University to award gold medal to the petitioner is concerned, the same is stayed for a period of two weeks from the date of receipt of certified copy of this judgment and order.