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2011 DIGILAW 570 (GUJ)

GUJARAT UNIVERSITY v. MEGHA BHUPENDRAKUMAR GOSWAMY

2011-07-29

ANANT S.DAVE, J.B.PARDIWALA, SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S. J. MUKHOPADHAYA, C.J. This Latters Patent Appeal has been preferred by the Gujarat University (hereinafter referred to as 'the University') against the order and judgment dated 13th June, 2011 passed by the learned Single Judge, whereby the learned Single Judge allowed the writ petition and directed the appellant-University to give effect to the marks revised upon re-assessment of the paper of 'Oral Pathology and Microbiology' of the first respondent-writ petitioner and declare her to have passed such examination with all necessary consequences thereof. Consequently, the first respondent-writ petitioner shall be, as far as practicable, facilitated in appearing for the examination of the Fourth Year of her course. 2. When the appeal was taken up and heard at length by the Division Bench, it had noticed that a Division Bench decision of this Court dated 28-11-1983 passed in Special Civil Application No. 3516 of 1983, which was relied upon by Mr. S. N. Shelat, learned Senior Counsel appearing for the University. In the said case, Rule 9 of the Rules relating to Assessment of answer book, which fell for consideration, was upheld by the Division Bench, which in its opening paragraph of the judgment observed as follows: “......A student who has taken in examination in the Gujarat University is permitted to seek re-assessment, such re-assessment becoming effective in the event of difference in re-assessment being 15 % or above for marks fixed for a subject....." 3. Rule 9 which fell for consideration before the Division Bench in Special Civil Application No. 3516 of 1983 (Jabarkhan J. Pathan v. Gujarat University) has not been quoted in the judgment nor any document has been brought on record of the University to suggest as to which was the Rule 9 which fell for consideration before the Division Bench. On an oral statement made by Mr. Shelat that the same very Rule fell for. consideration which is the subject-matter of the present appeal, the Division Bench referring to the present Rule 11 doubted the observation as made by the Division Bench and quoted above, and thereby, referred to matter for consideration by a Larger Bench. 4. One of the question raised in the appeal is whether the Rule of assessment should be accepted by reading Rule 9 and Rule 11 together or they ought to be read separately as they apply to two different types of cases. 5. Mr. 4. One of the question raised in the appeal is whether the Rule of assessment should be accepted by reading Rule 9 and Rule 11 together or they ought to be read separately as they apply to two different types of cases. 5. Mr. Shelat submitted that the re-assessment procedure is in vogue since 1983. He further submitted that the ratio decidendi laid down by the. Division Bench in Spl. CA. No. 3516 of 1983 by judgment dated 28-11-1983 can be summarised as under : The assessment becomes effective in the event of difference in re-assessment being 15 % or above for marks fixed for a subject. A candidate may be found to have obtained higher or lower marks, but then what marks he obtained on an earlier valuation itself cannot be a ground for interference. To interfere in the case of one candidate on the basis of such valuation would certainly be doing injustice to others in whose case there is no occasion for revaluation by the same examiner. Hence, reckoning the difference irrespective of the quantum would defeat the very purpose of the revaluation. 6. According to him, the Division Bench was examining the entire scheme of re-assessment and has not examined the scheme in compartment as being argued on behalf of the 1st respondent-writ petitioner. The ratio decidendi above need not be reversed by this Court as there are no strong grounds to reverse the said judgment. The entire Rule 9 or Rule 11 are not referred to is not ground for overruling the judgment. 7. He further contended that the Division Bench has understand the scheme of the Rules as above, hence this Court should not provide another scheme for re-assessment on bifurcating Rule 9 and Rule 11. This Court, therefore. should accept the interpretation by reading Rule 9 and Rule 11 together as implemented by the Gujarat University. 8. Reliance was placed on the following decisions of the Supreme court : (1) Principal. Patna College. Palna v. Kalyan Srinivas Raman, reported in AIR 1966 SC 707 ; (2) All1ndia Council for Technical Education v. S. K. Dhawan, reported in AIR 2009 SC 2322 ; (3) Dr. UMA Kant v. Dr. Bhika Lal Jain, reported in JT 1991 (4) SC 75. Patna College. Palna v. Kalyan Srinivas Raman, reported in AIR 1966 SC 707 ; (2) All1ndia Council for Technical Education v. S. K. Dhawan, reported in AIR 2009 SC 2322 ; (3) Dr. UMA Kant v. Dr. Bhika Lal Jain, reported in JT 1991 (4) SC 75. According to him, in matters of educational institutions strict standard of drafting by Legislature should not be expected and because Rule 9 and Rule 11 are separated they should not be read as providing different scheme of re-assessment. 9. Further, according learned Senior Counsel for the appellant, in case of local statute, the interpretation accepted by the High Court should not be disturbed and the principle of stare decisis is required to be followed. In support of his submission, he also placed reliance on the following decisions : (1) Raj Narain Pandey v. Sant Prasad Tewari. reported in AIR 1973 SC. 291 ; (2) Darshan Singh v. Ram Pal Singh. reported in AIR 1991 SC 1654 ; (3) Saurashtra Cement and Chemical Industries v. Union of India, reported in AIR 2001 SC 8 . 10. Next he has submitted that if Rule 9 is read in isolation, the following anomalies would result : (a) The candidate getting 1 to 14 marks more or less would get addition or subtraction as the case may be on their original result. Candidate getting 15 marks or more would require his answer book to be reassessed by the second examiner and if on assessment he gets less than 15 marks, it would be detrimental to him. (b) In Rule 9 phrase used is 're-assessment' and not first and second reassessment. Rule 11, on the contrary, specifically defines re-assessment by providing first and second re-assessment, re-assessment is not complete till second examiner provide reassessed marks. By adding the word 'first assessment', this Court would be substituting the Rules. There is no re-assessment till first and second re-assessment are gone through. If Rule 9 were bifurcated into first re-assessment and second re-assessment, the Court would be rewriting Rule 9. (c) The classification between the students getting 1 to 15 marks at the hands of the first examiner and students receiving more than 15 marks is wholly unjustified with no rationality. If Rule 9 were bifurcated into first re-assessment and second re-assessment, the Court would be rewriting Rule 9. (c) The classification between the students getting 1 to 15 marks at the hands of the first examiner and students receiving more than 15 marks is wholly unjustified with no rationality. On the contrary, the ratio supplied by the Division Bench, namely, irrespective of the quantum amending the result of a student would defeat the very purpose of revaluation is most relevant criteria. The quantum of marks is fixed at 15 % by this University and it has been fixed in different manners by different Universities. But there is a provision for fixing quantum of marks. By reading Rule 9 without quantum of marks will have. to be declared failed if he has 35 marks. This is unwarranted. Therefore, quantum of marks has to be fixed by the University for. changing the result. 11. He also placed reliance on Supreme Court decision in Sayyed Aqueel Arif v. University of Pune, reported in 2003 (12) SCC 724 in support of his argument that mere finding fault with the language of Rule 9 and Rule 11 is no answer to the real rationale of amending the result after reassessment. The Supreme Court also accepted that difference of 10% was relevant and in the Gujarat University, it is 15 %. Following judgments were also relied upon : (1) Lalit S/o. Ballabhdas Taori v. Nagpur University, reported in AIR 1986 Bom. 255 ; (2) Yudhvir Singh v. Baba Saheb Ambedkar Marthwada, reported in 1998 (2) MLJ 721. In these cases, it was suggested that there can be small variation like 1%, 2% or 3% if one paper is examined by two different persons. Therefore, there should be some criteria as to when such difference should be accepted. Relying upon Prem Kisanchand Pahyja v. University of Bombay, reported in 1997 Law Suit Bom. 529; it was submitted that the main contention, therefore, is that if the additional subsequent marks had to be given effect under Rule 9, it would lead to logical absurdity. 12. The next stand of the appellant-University is that the 1st respondent petitioner has already given an undertaking that as a result of re-assessment whatever changes are made would be binding on her, and therefore, the decision of the University is binding. 12. The next stand of the appellant-University is that the 1st respondent petitioner has already given an undertaking that as a result of re-assessment whatever changes are made would be binding on her, and therefore, the decision of the University is binding. He further contended that the present Rules are internal Rules framed by the Executive Council and they are not in the nature of legislation and are not statutes. Therefore, the Court while interpreting the Rules may not read strictly like interpreting any statutory instrument. Reliance was placed on a Supreme Court decision in N. Suresh Nathan v. Union of India, reported in AIR 1992 SC 564 wherein the Supreme Court observed that if the past practice is based on one of the possible constructions which can be made of the rules, then upsetting the same now would not be appropriate. Reliance has also been placed on Supreme Court decision in Ajay Gandhi v. B. Singh, reported in AIR 2004 SC 1391 and submitted that the actual practice should be taken into consideration. The theory of causus omissus as argued on behalf of the 1st respondent, writ petitioner cannot be made applicable, and therefore, Rule 9 and Rule 11 should be interpreted in the manner as already decided by the Division Bench in Special Civil Application No. 3516 of 1983. 13. Thereby, according to learned Senior Counsel for the University, Rule 9 is a parent clause by itself giving finality, Rule 11 provides for reassessment and in absence of Rule 11. Rule 9 alone cannot be read because•. what is re-assessment is not defined in Rule 9. 14. According to learned Counsel for the 1st respondent -writ petitioner the University has conveniently interpreted the re-assessment rules though such interpretation has not been made by the Division Bench in its judgment dated 28-11-/983 passed in SpL. CA. No. 3516 of /983. The re-assessment interpretation as being now submitted is carried out without keeping in mind the benefit of large number of students. Rule 11 of the re-assessment lays down procedure, which can be invoked where there is a difference of more than 15% in the marks originally obtained and reassessed marks. In an event where there is a difference in re-assessment, if the original marks are less. than 15 %. Rule 11 cannot be invoked. Rule 11 of the re-assessment lays down procedure, which can be invoked where there is a difference of more than 15% in the marks originally obtained and reassessed marks. In an event where there is a difference in re-assessment, if the original marks are less. than 15 %. Rule 11 cannot be invoked. In such an event, the University should give effect to the reassessed marks without going for second re-assessment as contemplated under Rule 9 of the assessment rules. The same will come into play under which University is bound not only to inform the students of the reassessed marks, but also give effect of the reassessed marks as they stand. 15. He would further contend the there is a wide difference between the actual interpretation of Rule 11 and the interpretation as made on behalf of the University. Rule 11 at no stage speaks of any negative directions towards the students informing them explicitly that in the event the result of the re-assessment does not amount to difference of 15 % from the original marks, there would be no change to be made to the original marks. In an event that such negative mark has occasioned against the student, they have to be informed prior to making an application for re-assessment. However, in the present case, since last 28 years as the University has not informed the students expressly of the negative consequences, they cannot submit before the Court that there will be a negative impact on the students if marks obtained after re-assessment is less than 15%. On the contrary, the Rule clearly lays down the procedure, and thereby, no implied interpretation is necessary to be made in such case. Interpreting the Rules to have negative consequences is definitely not the intention of the Executive Committee, and if it was so, it would have been clearly laid down as has been the case of other Universities like Bombay University wherein at Clause 7 of the re-assessment rules a specific stipulation has been made that benefit will be given to a candidate if the original marks and marks obtained after revaluation exceed by 10% or more. 16. Learned Counsel for the 1st respondent would further contend that merely because the University has misinterpreted the Rule in question for number of years, it does not mean that all the time they will have to misinterpret the same. 16. Learned Counsel for the 1st respondent would further contend that merely because the University has misinterpreted the Rule in question for number of years, it does not mean that all the time they will have to misinterpret the same. The interpretation cannot be a fanciful interpretation, due to which lacs of students may suffer. A number of examples were cited. by the Counsel for the 1st respondent, but it is not necessary to discuss the same. 17. Next it was contended that if the relief sprayed by the appellant is granted, it will amount to supplying casus omissus of this Court, as if certain part of the Act or statute is left to be enacted intentionally or unintentionally, then it should be a function limited to the Legislature to follow proper procedure of re-enactment, amendment or repeal the previous statute to give effect to what is left to be enacted, and Courts are not to be called upon to perform the legislative function under the disguise of interpretation. 18. He further contended that Rule 9, which is under challenge in Special" Civil Application No. 3516 of 1983, nowhere talks about the procedure to be followed in an event that the difference in marks is less than 15 % from the original marks. The above procedure is detailed in Rule 11. Though, the Rule has not been reproduced in the judgment dated 28-11-1983 passed in Spl. CA. No. 3516 of 1983, but heavy reliance has been placed by the Counsel for the University without referring to such Rule 9 which was noticed by the Division Bench in the earlier case. 19. He would further contend that re-assessment Rules of the University being ambiguous, unequivocal and crystal clear there is no space for further interpretation by the Court. He placed reliance on Paragraph NO.7 of the minutes for the meeting of the Executive Council held on 29th May, 1982 wherein initial decision was taken with regard to laying down the guidelines, which would be discussed at appropriate stage. 20. We have heard learned Counsel for the parties and perused the record. There are large number of judgments cited by the learned Counsel appearing for the appellant as well as also the respondents, who relied on a decision in Union of India v. Printably Saran. 20. We have heard learned Counsel for the parties and perused the record. There are large number of judgments cited by the learned Counsel appearing for the appellant as well as also the respondents, who relied on a decision in Union of India v. Printably Saran. reported in 2008 (3) GLH 423 (SC), which relates to supply of casus omissus, a legislative function which is to be performed by exercising due process, Supreme Court decision in the case Nagar Palika Niggard v. Kristi Uparrow Mandi Samiti. reported in 2008 AIR SCW 7114, which relate to interpretation of statute, but it is not necessary to discuss all the aforesaid judgments, except the relevant one, as the Rules in question according to us are clear and unambiguous. 21. For deciding the issue, it is relevant to notice certain facts and the relevant Rules 9 and 11, as discussed hereunder : The 1st respondent appeared in the 3rd B.D.S. Examination in January, 2011, but declared fail in the subject of Pathology and Microbiology wherein she obtained 46 marks. She applied for re-assessment, and on re-assessment, on 11th March, 2011 it was found that she obtained 50 marks. However, on 30th April, 2011 the appellant University intimated her that no change' was to be made in her original marks in view of the Rules. 22. The aforesaid decision was challenged by the 1st respondent in a writ petition, Special Civil Application No. 6689 of 2011, which on hearing was allowed by the learned Single Judge on 13th June, 2011 giving rise to the present appeal. 23. From the record, it will be evident that there is no statutory rule for re-assessment of answer books framed by the University. The 'Rules for Re-assessment' at page 66 appears to have been issued from the reassessment department of the University, wherein the following stipulations have been made by Rule 3 and Rule 7 respectively. English version of which is quoted hereunder: "Rule 3. The result after re-assessment is final and will remain binding on the student. Rule 7. If the total marks in a paper after re-assessment are 15 % morel less than the original marks one more re-assessment will be done. Whichever . total of the two is closer to the original, will be declared as the final result." 24. The result after re-assessment is final and will remain binding on the student. Rule 7. If the total marks in a paper after re-assessment are 15 % morel less than the original marks one more re-assessment will be done. Whichever . total of the two is closer to the original, will be declared as the final result." 24. Same re-assessment Rule of the University is attached along with the application for re-assessment, but therein the Rule has been shown at Rule 9 and Rule 11 respectively. In the application, the candidate has to give an undertaking that' Due to this re-assessment whatever change is made will be binding on me, and due to such change later on if there are no benefits entitled to me as per the Rules and Regulations of the University then it will not be granted, I have made note of the same'. The relevant Rules 9 and 11 in its English version enclosed with such application form is quoted hereunder : "Rule 9. Due to the re-assessment whatever is the fresh result will be considered as the final result, and it will be binding upon the student. Rule 11. On re-assessment of the answer-sheets if there is 15 per cent of change in the total marks of a subject then such answer-sheet will be re-assessment one more time, and whatever marks of the result which will be closest to the original result marks will be considered as final." 25. We have also noticed that there is no statutory rule relating to re-assessment framed by the University. Rule 3 and Rule 7 of re-assessment, which we have quoted from page 66, do not bear any date of publication of such Rule. Similar Rules, which we have quoted as Rule 9 and Rule 11 respectively, are enclosed to application form for re-assessment. 26. From the judgment of Division Bench of this Court dated 28-11-1983 passed in Spl.C.A. No. 3516 of /983, it will be evident that though Rule 9 relating to the assessment of answer-book as was enclosed with the form of re-assessment was under challenge, without referring to Rule 11, the Division Bench in the opening Paragraph observed: "Rule 9 of the Rules relating to re-assessment of answer-book as stated to the form at Annexure "A" to the Special Civil Application is under challenge in the application. A student who has taken in examination in the Gujarat University is permitted to seek re-assessment, such re-assessment becoming effective in the event of difference in re-assessment being 15 % ~r above for marks fixed for a subject....." 27. Therefore, it is not clear as to whether Rule 7 is similar to Rule 9 as enclosed with the application form or is similar to that of Rule 11, as Rule 1 I relates to second re-assessment in the event of difference in re-assessment being 15% or above for the marks fixed for a subject. None of the parties could satisfy as to which was the Rule under consideration before the Division Bench. 28. When we traced out the history, we could notice that the so-called 'Rules for Assessment' are guidelines enclosed with the application form issued by Re-assessment Department of the University based on a decision of the Executive Council of the University as taken notice in the meeting held on 29th May, 1982 on the agenda 83 regarding the re-assessment of the answer-sheets of the students. Earlier, the Executive Council appointed a Committee, which met on 11th May, 1982. The Board of Academic Council in its meeting held on 117th July, 1982 considered the University Examination moderation, dummy method, internal markings, etc., wherein decision relating to re-assessment was taken which was signed by the Vice-Chancellor of the University circulated on behalf of the Chancellor of the Gujarat University. The said decision was considered by the Executive Council of Gujarat University in its meeting held on 29th May, 1982, and approved the recommendation, which was enclosed as Schedule "CHH" and the relevant portion of the same is quoted hereunder : 5. The application for re-assessment to be accepted only if the application is made within 15 days from the declaration of the result of the student. The application received thereafter will not be accepted for re-assessment. This re-assessment will have to be done only by one examiner. But on reassessment of an answer-sheet if there is difference of 15 (in question paper for 100 marks and 11 in the question paper for 70 marks) or more is found then in such case more than one examiner should be appointed for assessment, and for re-assessment from both these examiners whosoever's result is close to the original result will have to be considered as final." 29. Therefore, Clause 5 of the decision makes it clear as to what was the intention of the University and what was the decision of the University in case on re-assessment of an answer-book if the re-assessment in marks is found to be less than 15%. University has specifically taken the decision as circulated under the signature of the Vice-Chancellor at Clause 5 that the re-assessment will have to be done only by one examiner, but on reassessment of an answer-sheet if there is a difference of 15 (in question paper for 100 marks and 11 in the question paper for 70 marks) or more is found then in such case, more than one examiner should be appointed for assessment, and for re-assessment from both these examiners whosoever's result is close to the original result will have to be considered as final. Therefore, it is clear that re-assessment will have to be done only by one examiner. The question of re-assessment by two examiners will be there only if on first re-assessment of an answer-sheet if there is a difference of 15 % or more is found. 30. The decision of the Gujarat University as taken in its Executive' Council meeting held on 28th May, 1982 was not brought to the notice of the Division Bench in Special Civil Application No. 3516 of 1983, which was disposed of on 28th November, 1983, that is much after the decision of the University. What was the Rule 9 before the Division Bench is also not clear from the said judgment; i.e. whether it is equivalent to present Rule 9 or Rule 11 as enclosed with the application form. 31. By the aforesaid judgment in Special Civil Application No. 3516 of 1983, the Court has upheld Rule 9. Such issue being nor for consideration before this Bench .this Court is not inclined to make any observation with regard to the same. 31. By the aforesaid judgment in Special Civil Application No. 3516 of 1983, the Court has upheld Rule 9. Such issue being nor for consideration before this Bench .this Court is not inclined to make any observation with regard to the same. But, we may only observe that the observation made by the Division Bench in the opening Paragraph that 'a student who has taken in examination in the Gujarat University is permitted to seek reassessment, such re-assessment becoming effective in the event of difference in re-assessment being 15 % or above for marks fixed for a subject', cannot be made applicable for the purpose of interpretation of present Rule 9 as enclosed with the re-assessment form and such observation to that extent, we hold as per incuriam. 32. Learned Counsel for the University relied on different decision of the Supreme Court to suggest that Court while interpreting the rules may not read it strictly like interpreting any statutory instrument. But those decisions are not applicable in the present case, as we are not interpreting Rule 9 or Rule 11, the decision of Gujarat University being available on record, which makes it amply clear that Rule 9 will be applicable in cases where a~ re-assessment if marks obtained are less than 15 % of the total marks based on which Rule 9 has been framed. It is only where the difference is more than 15 % on re-assessment used for Rule 11. 33. In view of the aforesaid fact, it is also not necessary to notice the submission as made on behalf of the 1st respondent that the interpretation canvassed by the University amounts to supplying the casus omissus. 34. At this stage, we may only cite some of the Rules as noticed by the Supreme Court. In the case of Sayyed Aqueel Arif v. University of Pune, reported in 2003 (12) SCC 724, the Supreme Court noticed the material portion of a circular by which Ordinance 134AB was framed laying down the procedure for verification and revaluation of marks, which reads as follows: "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. 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 percent of the marks assigned to the paper or a part thereof shall be taken into account and rounded off for next successive higher integer." 35. From the aforesaid Rule, it will be evident that the Rule is specific that the benefit of evaluation is given only in case the marks obtained after revaluation exceed by 1 0 % or more of the maximum marks of the Theory Paper and is binding on the candidate. No such facility has been provided for those whose marks' variation on reassessment is less than 10% of maximum marks of the Theory Paper. But that is not the situation in the present case where Rules 9 and 11 have been framed for two different situations i. e. one in case if marks on re-assessment vary more than 15% of the total marks and the other in case where marks do not vary such 15% of the total marks. But that is not the situation in the present case where Rules 9 and 11 have been framed for two different situations i. e. one in case if marks on re-assessment vary more than 15% of the total marks and the other in case where marks do not vary such 15% of the total marks. The decision of the University as taken in the meeting of the Executive Council being the basic decision, no other interpretation can be made either by the appellant-University or by the 1st respondent-writ petitioner, and thus no two interpretations can be made of Rule 9 and Rule 11, except the manner in which it is interpreted by the University in its meeting. 36. In view of the aforesaid observation, we hold that the decisions referred to by the learned Counsel for the appellant with regard to the situation in which two interpretations can be made of a Rule are not applicable. in the present case. 37. In view of our finding aforesaid, we find no reason to interfere• with the order passed by the learned Single Judge, and thus there being no merit, the appeal is dismissed. But in the facts 'and circumstances of the case, there shall be no order as to costs. Appeal dismissed.