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2012 DIGILAW 727 (GAU)

Shatrudhan Upadhaya v. Union of India

2012-06-12

ANIMA HAZARIKA, SWAPAN CHANDRA DAS

body2012
JUDGMENT Anima Hazarika, J. 1. The petitioner herein invoking the certiorari jurisdiction of this court has sought for quashing clause 17(9) (Under Ordinance OC-8, RC-9) of the North Eastern Hill University, Shillong (for short NEHU) on the ground of the same being ultra vires. The said clause 17(9) prohibits retrospective benefit of revised ranking on re-evaluation of the answer scripts. The petitioner has also sought a writ in the nature of mandamus for a direction to the respondent NEHU to declare his merit position as First Class First with Gold Medal and Rank Certificate. We have heard Mr. Ranabir Chowdhury, learned counsel appearing for the petitioner. Also heard Mr. R Debnath, learned Central Govt. Counsel appearing for the respondent No. 1 and Mr. Subir Sen, learned Standing Counsel, NEHU appearing for respondent nos. 2 and 3. 2. The facts relevant for the purpose of deciding the present writ petition may be noticed as under:- The petitioner had appeared third year L.L.B. examination in the year 2008 scoring 59.42% marks which is the cumulative effect after adding the marks for three yea Rs. Apparently the petitioner was not satisfied with the marks received and therefore, sought for re-evaluation of two answer scripts of third year i.e. Paper XX (Criminal Procedure Code, Juvenile Justice and Probation of Offenders Act) and Paper XXI (Law of Evidence) and on re-evaluation there was an increase of 24 marks, as a result the petitioner was placed in the First Class for the Degree of Bachelor of Law but the authority declined to give him the First Class First position along with Gold Medal, as provided under Regulation RC-13 which culminated in the present writ proceeding seeking the relief as indicated above. 3. The denial of Gold Medal and rank certificate rests on RC-9 clause 17(9) of Regulation RC-9 made in accordance with Ordinance OC-8 of the NEHU Regulations which is quoted hereunder for effective adjudication of the writ proceeding:- RC-9, Clause 17(9) – No retrospective benefit such as award of Gold Medal Scholarship, Fellowship admission, Promotion, etc. shall accrue to a candidate as a result of re-evaluation. However clause 17(8) of the Regulations ensures as follows:- The score after re-evaluation shall supersede the earlier score, provided that a candidate who was declared pass initially shall not be declared unsuccessful as a result of re-evaluation and downward revision of marks shall be limited to pass level. 4. shall accrue to a candidate as a result of re-evaluation. However clause 17(8) of the Regulations ensures as follows:- The score after re-evaluation shall supersede the earlier score, provided that a candidate who was declared pass initially shall not be declared unsuccessful as a result of re-evaluation and downward revision of marks shall be limited to pass level. 4. Based on these two clauses as aforesaid, Mr. Chowdhury, learned counsel representing the petitioner has put forward the following points for determination of the case, viz. (i) The petitioner is entitled to get the gold medal and book prize [if applicable] as per Regulation RC-13 as he has secured First Class and is in fact the only one from the three year LL.B. course to do so. (ii) The NEHU regulations framed under Ordinance OC-8 speaks of admission to and conduct of examinations for the three years integrated degree courses in Arts, Science, Home Science and Commerce but the term LL.B. has been omitted therein and hence clause 17(9) cannot be made applicable in determining the question of declaring first class first position along with awarding Gold Medal and Rank Certificate require judicial review under Article 226 of the Constitution of India, more so, when clause 17(8) provides that the score after re-evaluation would supersede the earlier score and the petitioner having admittedly marched to first class after re-evaluation, it is incumbent on the part of the University to declare his result as first class first position when no other candidate secured first class in LL.B. Examination in the year 2008. (iii) Clause 17 under Ordinance OC-8 prescribed for re-evaluation and a candidate as a matter of right may apply for re-evaluation and the application for re-evaluation shall be screened by the Controller of Examinations and shall be sent to two Examiners, other than the ones who have examined the script earlier, appointed by the Vice-Chancellor and provides that average of the two closer marks awarded by the examiners shall be the marks awarded after re-evaluation and it would automatically supersede the earlier score meaning thereby that the University is duty bound to declare the result assigning the merit position and the University cannot be allowed to take recourse to clause 17(9), more so, when the same has been rectified by the University upon re-examination of two papers viz. Paper XX and XXI and to that effect the certificate was issued on 06.11.2009 holding that the petitioner was placed in the first class and therefore, it was incumbent on the University to confer the consequential benefits also to the petitioner. (iv) The clause 17(9) prohibits revised ranking in respect of examinees who derive benefits in the re-evaluation. Thus the said clause 17(9) to that extent is unreasonable and is violative of Article 14 and the petitioner is entitled to get the benefit of ranking which require judicial review in exercise of power under writ jurisdiction. 5. In support of his submission, Mr. Chowdhury has placed reliance on the following decisions:- (i) Anjay Bansal vs. Bangalore University & another, AIR 1990 Kar 225 (ii) Ms. Deepa vs. Maharishi Dayanand University & other, (2003)133 PLR 555 (iii) Manabjyoti Duarah vs. Dibrugarh University & other, AIR 2011 (Gau) 9 (iv) Kum Rujuta A. Borkar vs. Goa University & other, W.P.(C) No. 560 of 2004 (v) Samrat Dey vs. North Eastern Hill University & other, W.P.(C) No. (SH) 143 of 2006 6. On the other hand, Mr. Sen, learned Standing Counsel, NEHU representing the respondents would contend the following:- (i) The Ordinance under Ordinance OC-8 of NEHU Regulations prescribes for admission to and conduct of examinations for the three years integrated degree courses in Arts, Science, Home Science and Commerce which also includes three years LL.B. courses and therefore, no exception can be drawn in case of LL.B. courses which is also applicable to the clauses made under OC-8 Ordinances because the question of reevaluation come only on the prayer of the candidates and if on re-evaluation the candidates get more marks, the marks are added to the original marks and the results are declared accordingly. In the instant case, the petitioner's answer scripts after re-evaluation secured first class and accordingly, the certificate has been issued placing him in the First Class and clause 17(9) prohibits revised ranking relating to first class first position along with gold medal and rank certificate which would not come under judicial review in a writ proceeding. (ii) A reading of clause 17(8) and 17(9) would amply demonstrate that the score after re-evaluation would supersede the earlier score which has been adhered to but retrospective benefit of the award of Gold Medal etc. (ii) A reading of clause 17(8) and 17(9) would amply demonstrate that the score after re-evaluation would supersede the earlier score which has been adhered to but retrospective benefit of the award of Gold Medal etc. would come in the way because the same would cause inconvenience to the candidate already awarded such benefit on the basis of the result declared which cannot be termed as violative of Article 14 of the Constitution of India, more so, when the exercise of power relating to the benefit of revised ranking rests on the University as provided under the Ordinances. 7. Considered the submissions advanced by the learned counsel appearing for the contesting parties. Perused the pleadings set forth along with the decisions cited by the parties. From the pleaded facts of the parties, it is admitted that in the LL.B. final examination in the year 2008, the petitioner secured 59.42% marks which is the cumulative effect of marks obtained for three years and being not satisfied with the marks obtained in the final year of LL.B. examination, the petitioner applied for scrutiny of answer scripts of two papers viz. Paper XX and XXI. The University re-evaluated the answer scripts and after re-evaluation it was found that the petitioner secured more marks as there was an increase of 24 marks in two papers whereof after re-evaluation he secured first class and accordingly, the same was rectified by the University placing him in the first class in LL.B. 8. From the facts, what emerges is that had the evaluation of the answer scrips of the petitioner been properly done in the first instance itself, then he would have been entitled to get the Gold Medal as provided under RC-13 and other prizes, benefits, etc. [including Book Prize, Rank Certificate-provided the petitioner was entitled to the same under the rules and regulations of the respondent NEHU]. But due to improper evaluation of his answer scripts, he was denied the Gold Medal and other benefits [if applicable]. Only after the re-evaluation of his answer scripts was his marks increased by 24 in two papers, as a consequence of which he was placed in the First Class. But due to improper evaluation of his answer scripts, he was denied the Gold Medal and other benefits [if applicable]. Only after the re-evaluation of his answer scripts was his marks increased by 24 in two papers, as a consequence of which he was placed in the First Class. The certificate has been issued to the petitioner on 06.11.2009 declaring the petitioner as first class in LL.B. examination held during July-August 2008 after re-evaluation of his answer scripts and there is no indication in the pleadings that any other candidate other than the petitioner has secured first class first position in the examination held in the year 2008. 9. However, it is clear from the letter dated 03.12.2009 issued by the Assistant Registrar, Examinations (PG), NEHU to the petitioner as well from the statements of the respondent NEHU in its affidavit-in-opposition, particularly paragraphs 10 and 14 thereof, that the respondent NEHU has denied the petitioner the Gold Medal he was entitled to under RC-13 and any other benefits he may have been so entitled by taking recourse to clause 17(9) of Regulation RC-9. This has compelled the petitioner to challenge the said clause 17(9) of Regulation RC-9 as ultra vires in the present writ proceeding. 10. However, the very heading of Regulation RC-9 reads as thus:- ON ADMISSION TO AND CONDUCT OF EXAMINATIONS FOR THE THREE YEARS INTEGRATED DEGREE COURSES IN ARTS, SCIENCE, HOME SCIENCE AND COMMERCE The term LL.B. is absent from the above description. Therefore, it is quite evident that Regulation RC-9 does not deal with the three year LL.B. degree course. Hence, the court holds that the respondent NEHU was not justified in depriving the petitioner of his Gold Medal and any other benefit to which he was entitled as a consequence of his re-evaluated enhanced marks under the extant rules and regulations. 11. In light of the above, the court feels that it would be rather imprudent on it part to decide upon the vires of clause 17(9) of Regulation RC-9. Since the court has held that clause 17(9) of Regulation RC-9 is not at all applicable to the facts of the present case, therefore there is no need on the part of the court to decide whether the same is ultra vires or not. 12. Since the court has held that clause 17(9) of Regulation RC-9 is not at all applicable to the facts of the present case, therefore there is no need on the part of the court to decide whether the same is ultra vires or not. 12. As far as the cases referred to by the learned counsel for the petitioner are concerned, all but one of the cases dealt with provisions similar in nature to clause 17(9) of Regulation RC-9. Thus, in Anjay Bansal (Supra), the Hon'ble Karnataka High Court quashed the a portion of paragraph 7 of the Notification issued by the Bangalore University under Section 38 of the Karnataka State Universities Act 1976 which, inter alia, had provided that no revised rank would be declared in respect of those who got the benefit in the revaluation. Again, in Ms Deepa vs. Maharishi Dayanand University & Others (Supra), the Hon'ble Punjab and Haryana High Court has struck down clause 4.2 of the Ordinance concerning re-evaluation of Answer Books framed by the respondent University, i.e. Maharishi Dayanand University to the extent that it provides that the marks obtained as a result of re-evaluation of the papers of the course concerned shall not count towards determining the position in order of merit. In the same vein, in Kum. Rujuta A. Borkar (Supra), the petitioner has challenged the part of Ordinance No. 5.15(iv) of Goa University Ordinance which provided that the revised marks obtained by a candidate after re-evaluation as accepted by the University shall be taken into account for the purpose of amendment of his/her result, if applicable, in accordance with the rules of the University in that behalf, but these marks shall not be taken into account for the purpose of award of Scholarships, Prizes, Medals and/or the order of Merit. Although the Hon'ble High Court of Bombay at Goa had observed that the said portion of the Ordinance was arbitrary and unconstitutional, the court stopped short of quashing the same as the counsel for the respondent University had stated the University had already taken steps to delete the underlined portion of the Ordinance. Although the Hon'ble High Court of Bombay at Goa had observed that the said portion of the Ordinance was arbitrary and unconstitutional, the court stopped short of quashing the same as the counsel for the respondent University had stated the University had already taken steps to delete the underlined portion of the Ordinance. Similarly, in Samrat Dey (Supra), which was also a case involving the respondent NEHU, the court after dealing with clause 17(9) of regulation RC-9 has held that "retrospective benefit in a case such as the present would arise only if the Rank certificate was given before the re-evaluation. In that event, the Rank certificate may, perhaps, not be corrected retrospectively. But that is not what has happened in the present case. The contention based on a retrospective benefit is clearly erroneous." The court has further held that clause 17(9) of Regulation RC-9 cannot be read to include the grant of only a certificate, unlike any other substantive act such as an award which may have a consequence on some other candidates. The Court found that there was absolutely no substance in the stand taken by NEHU and therefore, directed the NEHU to issue a fresh Rank Certificate to the petitioner within six weeks from the date of the judgment. 13. An analysis of the aforementioned four cases would reveal that these cases all deal with one issue, viz. whether clause 17(9) of RC-9 or a provision of law akin to it is sustainable in law or is ultra vires. But the court has already held that in the facts and circumstances of the present case, the vires of clause 17(9) of RC-9 need not be gone into. Therefore, although the court is inclined to provide the relief sought for by the petitioner, as far as these specific cases are concerned, the same are not helpful to his cause. As far as the case of Manabjyoti Duarah (Supra) is concerned, the same deals with the issue of giving of average of the original marks received and the re-evaluated marks and hence is clearly not applicable in the facts and circumstances of the present case. 14. As far as the case of Manabjyoti Duarah (Supra) is concerned, the same deals with the issue of giving of average of the original marks received and the re-evaluated marks and hence is clearly not applicable in the facts and circumstances of the present case. 14. Thus, the inescapable conclusion that the court draws from the factual matrix of the case is that a student of three year degree course in law in NEHU is not barred from getting the Gold Medal and other benefits [including Book Prize, Rank Certificate, etc., if the person is so entitled under the rules and regulations of NEHU] even after re-evaluation of his answer scripts, as clause 17(9) of regulation RC-9 is not applicable to the three year degree course in law. Consequently, the respondent NEHU was not entitled to deny the petitioner the Gold Medal and other benefits [if he was so entitled under the rules and regulations of NEHU] by invoking clause 17(9) of regulation RC-9. 15. Therefore, the court directs the respondent NEHU to award the petitioner the Gold Medal for the LL.B. examination for the year 2008. If the petitioner is entitled to get any other benefits like Book Prize, Rank Certificate, etc. under the rules and regulations of the respondent NEHU owing to his enhanced marks after re-evaluation, the respondent shall also give these benefits to the petitioner. The entire exercise shall be carried out within 6 (six) weeks from today. 16. The writ petition is accordingly allowed. The parties are left to bear their own costs. Petition allowed.