ORDER : In all these cases, there are four categories of failed students viz., (i) medical students of P.G. course (May- June 2018), (ii) medical students of U.G course (June-July 2018), (iii) the students of Dental P.G. course (May-June 2018), and (iv) the students of Dental U.G. course (June- July 2018). 2. The first grievance of the petitioners relates to the refusal of the respondent-University (RGUHS) to send their answer papers for re-valuation on the ground that the differential of marks awarded by two evaluators in the case of students of U.G. course and the differential of marks awarded by four evaluators in the case of students of P.G. course are less than 15% of the maximum marks prescribed for the concerned papers in the respective examinations. 3. The other grievance of the petitioners broadly stated, relates to certain alleged discrepancies and the pit falls that plague the Digital Valuation System of the answer papers; they have objection to the digital theory paper evaluation, the way it is being accomplished for the present. They grieve that in the absence of Model Key Answers, the students would be subjected to vagaries of valuations and evaluators and therefore the respondent- University should implement Subject 94 of the Syndicate Special Meeting held on 28.05.2016 for introducing Key/Model Answers to questions for all examinations. 4. Since common questions of facts and law are involved and almost similar reliefs have been sought for on that basis, all these petitions are clubbed together and taken up for consideration, as suggested by the learned counsel appearing on either side. 5. The respondent University (RGUHS) having entered appearance through its Senior Panel Counsel Shri N.K.Ramesh has filed a Statement of Objections in W.P.No.48194-198/2018 (EDN), and with leave of the court, has adopted the same in rest of the matters too. Later, it has filed an Additional Statement of Objections with a request to adopt the same in all other connected matters. In almost all these matters, deeper consideration of issues having been warranted, the petitioners were permitted to attend to the classes of the next level, subject of course to the rider that no equity would flow therefrom. 6. Later, it has filed an Additional Statement of Objections with a request to adopt the same in all other connected matters. In almost all these matters, deeper consideration of issues having been warranted, the petitioners were permitted to attend to the classes of the next level, subject of course to the rider that no equity would flow therefrom. 6. Learned Senior Advocate Shri V.Lakshminarayana and other learned counsel appearing for the petitioners submitted that the Syndicate of the respondent-University has promulgated the “Ordinance Governing Multiple Valuation” (hereafter called 2012 Ordinance) vide Notification dated 15.06.2012 in exercise of power under section 35 (1) of the Rajiv Gandhi University of Health Sciences Act, 1994 (hereafter called ‘Act’); the provisions of this Ordinance provide for reference of U.G. Answer Papers to a third examiner and the P.G. Answer Papers to a fifth examiner, respectively, if the difference in award of marks between these two examiners or the four examiners as the case may be, is 15% or more; in all these cases, the margin of difference being more than 15%, the University is not justified in not sending these answer papers to the third or fifth examiner, as the case may be, for revaluation. 7. The learned Senior Advocate Shri.Vijay Shankar and the Senior Panel Counsel Shri.N.K. Ramesh per contra, submitted that 15% difference prescribed in the 2012 Ordinance is qua the maximum marks prescribed for the said answer papers and not as between the set of two or four examiners, as the case may be, inter se; this is how the University has been undertaking the revaluation exercise, all through; there is no reason or rhyme to deviate from this consistent past practice; in interpreting the delegated legislation like the Ordinances in question, how the delegator understood and operated with the same, have its own relevance. 8. The respondent-University in its Additional Statement of Objections filed on 06.12.2018, has taken up a new contention that the Syndicate in its 124th Meeting held on 06.01.2017, has promulgated two separate Ordinances, one vide Notification dated 09.01.2017 for the U.G. students, which specifically provides for revaluation by the third examiner, if the difference between two evaluators is 15% or more of the “maximum marks stipulated for the paper”. However, the Ordinance published by Notification dated 13.01.2017 having not provided for fifth valuation/re-valuation at all, the Syndicate promulgated 17.10.2017 Ordinance providing for fifth valuation/revaluation if the difference between four evaluations is 15% or more inter se, subject to corrigendum dated 28.12.2017; thus the prayer in the writ petitions so far as they relate to revaluation even when the percentage difference is less than 15% of the maximum marks prescribed for the papers, are liable to be declined. 9. Learned counsel appearing for the petitioners stoutly opposed the above submission contending that the aforesaid 09.01.2017 Ordinance was never published as to make it a binding rule of conduct and that without publication, the same cannot be enforced against the petitioners; this Ordinance having been made with retrospective effect for covering the examinations that were conducted anterior to their promulgation, is no Ordinance in the eye of law at all, inasmuch as either Section 35 or any other provision of the Act does not provide for making of the Ordinance with retrospective effect; the language of 17.10.2017 Notification itself being much different from that of 09.01.2017 Ordinance, the stand of the University as to its understanding of 15% difference of marks is fraught with the apparent infirmity. 10. However, learned counsel appearing for the University trying to draw much milk from the expression ‘may, from time to time’ employed in section 35 (1) of the Act submitted that the Ordinances can be made with retrospective effect vide STATE OF RAJASTHAN vs. BASANT AGROTECH (INDIA) LTD., (2013) 15 SCC 1 ; the 2017 Ordinances having been made under section 35 (1) do not require publication unlike in the case of Statutes/Rules promulgated under section 34/36, clause (3) whereof requires publication in the Official Gazette. 11. The learned counsel for the petitioners vehemently submitted that the contemporary Digital Valuation System is fraught with several infirmities and therefore the Syndicate of the University vide Resolution dated 28.05.2016 had taken a policy decision to go for a substitute system and also for the Model Key Answers that would minimize the vagaries of multiple valuations and evaluators; there is absolutely no justification for not implementing the said policy. They also refer to a cognate case in W.P.No.58414/2017, wherein certain observations are made in relation to Model Key Answers and that pursuant to judgment dated 06.06.2018 made therein, Model Key Answers were provided and revaluation was done. They also refer to a cognate case in W.P.No.58414/2017, wherein certain observations are made in relation to Model Key Answers and that pursuant to judgment dated 06.06.2018 made therein, Model Key Answers were provided and revaluation was done. The counsel banked upon a judgment of the Apex Court in the case of KANPUR UNIVERSITY vs. SAMEER GUPTA & OTHERS, (1983) 4 SCC 309 paragraph 15 in support of their contentions. 12. Per contra, the learned counsel appearing for the respondent-University submitted that the examination, valuation and revaluation of Answer Papers fall exclusively within the domain of the University and that ordinarily, Court should not interfere in academic matters; the judgment dated 06.06.2018 in W.P.No.58414/2017 did not directly relate to Key Answer Papers at all; the Syndicate Resolution dated 28.05.2016 did not direct adoption of the Model/Key Answers for valuation of the papers; only as a Pilot Project it was adopted in Nursing Courses that too by way of experiment; the later Syndicate Resolution vide Subject No.11 dated 04.08.2018 decided to give up Model Key Answers even here too; the Kanpur University Case related to Combined Pre-medical Test for admission to Medical Colleges and it did not relate to medical students as such; the prayers in the writ petitions in this connection are unworthy of consideration. 13. On the request of the Court, the learned Registrar (Evaluation), namely, Dr.Ramesh having appeared personally submitted that, the Digital Valuation System of Theory Papers is a productive and proven method in several Universities in the country; in fact other Universities are borrowing the modalities of this system from the respondent-University; although no system is fool-proof, there could be some marginal errors, which can be addressed on individual-case-basis, if any; the petitioners are welcome to make suggestions for improving the system; in this progressive Digital Era, the University cannot go for manually operated system; if concrete systemic errors are pointed out and remedial measures are suggested, there is no impediment for the University to ponder over the same. 14. I have heard learned Senior Advocate Shri V.Lakshminarayana and other learned counsel for the petitioners; I have also heard learned Senior Advocate Shri S.Vijay Shankar and the learned Senior Panel Counsel Shri N.K.Ramesh for the respondent-University. I have perused the case papers. 15. 14. I have heard learned Senior Advocate Shri V.Lakshminarayana and other learned counsel for the petitioners; I have also heard learned Senior Advocate Shri S.Vijay Shankar and the learned Senior Panel Counsel Shri N.K.Ramesh for the respondent-University. I have perused the case papers. 15. AS TO RE-VALUATION ORDINANCES IN RGUHS: The Syndicate of RGUHS has promulgated Ordinances from time to time, under section 35 (1) of the Act, inter alia providing for valuation and revaluation of the answer papers of students of Under Graduate and Post Graduate Medical, Dental and Superspecialty courses. From time to time, some change has been brought out inter alia in the percentage difference, which can be noticed herein below: (A) Para 3 (ii) of Rajiv Gandhi University of Health Sciences (Provision for double valuation) Ordinances, 1999 reads as under: “DOUBLE VALUATION” “ii. All answer papers wherein the difference in award of marks between the first and second value is 20% or more of the maximum marks prescribed for that paper, shall be referred to a third examiner appointed by the Vice-Chancellor chosen from the approved panel. The average marks of any two valuations close to each other shall be the final marks to be awarded for declaration of result. If the difference between any of the two valuations out of the three is same, then the award for declaration of result shall be chosen to the best advantage of the candidate. In all other cases, the average of the marks awarded by the first and second valuers shall be taken as final.” (B) 2010 Ordinance Governing Revaluation: The 2010 “Ordinance Governing Revaluation”, promulgated vide Notification dated 23.03.2010 introduced the revaluation system by the 3rd and 5th examiners for U.G. and P.G. examinations respectively. Paragraph 4 of the said Ordinance reads as under: “PROCEDURE FOR REVALUATION: (i) All the answer papers wherein the difference in award of marks between two valuers and four valuers as the case may be in the general valuation is 15% or more of the maximum marks prescribed for the paper, shall be referred to a 3rd or 5th examiner as the case may be for valuation appointed by the Vice-Chancellor chosen from an approved panel. (ii) The average of the marks awarded by the 3rd examiner and the marks close to it in the two general valuations shall be considered for final computation of the results. (ii) The average of the marks awarded by the 3rd examiner and the marks close to it in the two general valuations shall be considered for final computation of the results. (iii) The average of marks awarded by the 5th examiner and the other three marks close to it amongst the four general valuation marks shall be considered for the final computation of the results. The marks awarded and the results declared after revaluation shall be final and under no circumstances further valuation shall be entertained.” (C) Paragraph 4 of 2012 “Ordinance Governing Multiple valuation”, published vide Notification dated 15.06.2012 reads as under: “4. PROCEDURE FOR MULTIPLE VALUATION: (i) All the answer-papers which are subjected for double valuation, wherein the difference in award of marks between TWO valuations is 2 15%, shall be referred to THIRD examiner appointed by Vice-Chancellor chosen from an approved panel. (ii) All the answer-papers which are subjected for four valuations, wherein the difference in award of marks between FOUR valuations is 2 15%, shall be referred to FIFTH examiner appointed by Vice-Chancellor chosen from an approved panel. (iii) The average of BEST OF TWO OUT OF THREE VALUATION marks or the average of BEST OF FOUR OUT OF FIVE VALUATION MARKS as the case may be shall be considered for the final computation of the results. (iv) The marks awarded and the results declared after considering this notification shall be final and under no circumstances further valuation shall be entertained.” (D) 2017 Ordinance promulgated vide Notification dated 09.01.2017 for U.G. examination has been extracted hereunder: “Each paper shall be subjected for double valuation. The deviation report shall be generated based on the actual marks scored by the candidate if the difference of marks between valuations is > 15 % of the maximum marks stipulated for the paper without rounding up the marks to the next higher whole digit. Average of best of two valuation marks shall be considered for final computation of results after rounding up the fractional mark, if nay, to the next higher whole digit.” (E) 2017 Ordinance promulgated vide Notification dated 17.10.2017 for the examinations of P.G. Degree and Diploma Courses, paragraph (b) whereof, reads as under: “(b) In the answer paper, if the difference in the marks awarded between four evaluators is equal to or more than 15%, such answer papers shall be referred to 5th valuation.” 16. The Ordinance of 1999 provided for third valuation if the difference in award of marks by the two evaluators was 20% or more of the maximum marks prescribed for the said paper. However, in the Ordinance of 2010, this difference came to be reduced to 15%. In addition, this Ordinance provided for regular valuation, by two evaluators for the U.G. Course and by four evaluators for the P.G. course. In 2010 Ordinance, again the expression ‘15% or more of the maximum marks prescribed for the paper’ is employed. Thus the percentage difference in these two Ordinances was with reference to the maximum marks prescribed for the paper. 17. The language of 2012 Ordinance is in a marked difference to the aforesaid 1999 and 2010 Ordinances inasmuch as the expression ‘15% or more of the maximum marks prescribed for the paper’ is conspicuously left out; further, the expressions ‘the difference in award of marks between two valuations is 15%’, and ‘the difference in award of marks between four valuations is 15%’ are consciously employed in this Ordinance. Therefore, the percentage difference is not as against the maximum marks prescribed for the paper unlike in 1999 and 2010 Ordinances, but it is only the percentage difference of the two evaluations/four evaluations, as the case may be, inter se. However, in 09.01.2017 Ordinance, this concept of inter se, percentage difference was given up and that the concept of ‘percentage difference of maximum marks stipulated for the paper’ was re-enacted as in 2010 Ordinance; strangely, in the Ordinance of October 2017 again the Syndicate reverted to inter se, percentage difference as in 2012 Ordinance, so far as the P.G. courses are concerned. 18. The learned counsel for the petitioners are justified in submitting that the 2012 Ordinance governs the valuations of papers in all the concerned courses involved in these writ petitions, all Ordinances of 2017 having not been duly published. The Apex Court in the case of B.K.SRINIVASAN & OTHERS vs. STATE OF KARNATAKA & OTHERS, (1987) 1 SCC 658 at paragraph 15 has observed as under: “15. There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the stand- point of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid 91 the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not.” 19. The contention of the respondent-University that the cases of the petitioners are governed by the Ordinances of 09.01.2017 and 13.01.2017, has to be rejected inasmuch as there is absolutely no material to prima facie show that these Ordinances were ever published to the section of the people concerned i.e., the community of the students if not to others as well. 20. The contention of the University to the contrary ie., the Ordinance need not be published, is thus not acceptable. The reliance by the University on the maxim ‘expressio unius exclusio alterios’ for contending that the absence of requirement of publication of the Ordinance in Section 36 as against such requirement under Sections 34 & 35 of the Act in respect of Statutes and Rules, again is misplaced. As already stated, the difference emanating from the provisions of Sections 34, 35 and 36 is as to the mode of publication and not to the publication as such, which cannot be dispensed with. 21. The above apart, even otherwise this maxim does not contain an inviolable rule. As already stated, the difference emanating from the provisions of Sections 34, 35 and 36 is as to the mode of publication and not to the publication as such, which cannot be dispensed with. 21. The above apart, even otherwise this maxim does not contain an inviolable rule. Maxwell on The Interpretation of Statutes (12th Edition) at page 295 states: “expressio unius, may not always provide the answer to problems of construction. “It is,” said Lopes L.J., often a valuable servant, but a dangerous master to follow in the construction of statues or documents. The exclusion is often the result of inadvertence or accident, and the maxim ought not to be applied when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice. More recently, Russell J. refused to apply the rule where to have done so would have produced a wholly irrational situation.” 22. There is yet another lacuna in the contention of the University in trying to make the January 2017 Ordinances enforceable with retrospective effect when the provisions of Section 35 do not empower the Syndicate to make the Ordinances with retrospective effect at all. It is a settled legal position that a delegate cannot promulgate a delegated legislation with retrospective effect unless authorized by the parent legislation. The Apex Court in the case of STATE OF RAJASTHAN vs. BASANT AGROTECH (INDIA) LTD., (2013) 15 SCC 1 , with a view to find out an answer to the question as to what meaning should be assigned to the words ‘from time to time’, has at paragraph 53 held as under: “53. Thus, the conspectus of authorities and the meaning bestowed in the common parlance admit no rule of doubt that the words ‘from time to time’ have a futuristic tenor and they do not have the etymological potentiality to operate from a previous date. …” 23. The contention advanced on behalf of the respondent-University that all through, the percentage of difference be it 20% or 15% has been understood as against the maximum marks prescribed for the paper, does not merit acceptance when the text of the aforesaid Ordinances is as clear as can be. …” 23. The contention advanced on behalf of the respondent-University that all through, the percentage of difference be it 20% or 15% has been understood as against the maximum marks prescribed for the paper, does not merit acceptance when the text of the aforesaid Ordinances is as clear as can be. The plea that all through, the same being the practice, should be permitted to continue, is repugnant to the age old doctrine that there is no estoppel against statute, the Ordinance being a piece of delegated legislation is a statute. This view gains support from the very stand of the Syndicate in having the text of the statutes varied from time to time as to the percentage difference of 15 i.e., at one time it is the evaluators inter se and at other it is maximum marks stipulated for the paper. 24. There is another pitfall in the argument advanced on behalf of the respondent-University, which claims to have understood the aforesaid Ordinances as requiring 15% difference qua the ‘maximum marks prescribed for the paper’ in question. If that were to be so, there was no reason for the Syndicate of the University to promulgate 2012 Ordinance giving up the expression "15% or more of the maximum marks prescribed for that paper.” This view is further strengthened by the subsequent two Ordinances of 2017 i.e., 09.01.2017 and 17.10.2017 in which the said expression is re-enacted. The obvious difference and its significance would be diluted if the stand of the University is countenanced and thus it spurns at judicial reason and at legal logic. 25. The algebraic formula for the purpose of third valuation applicable under the 2012 Ordinance would be as follows: If the marks awarded by the first valuator is x, and that awarded by the second evaluator is y, and the maximum marks prescribed is Z, then, answer paper goes for the third valuation if |x –y|> 0.15 X Z. For example, if the maximum marks are 150, the first evaluator awards 54, and the second evaluator awards 28, then going by the abovementioned formula, the paper will be sent to the third valuator as (54-28) > (0.15 X 150), i.e., 26 > 22.5. 26. 26. In the 2012 Ordinance, fifth valuation is provided in the case of P.G. courses if the percentage difference in award of marks between the ‘four’ evaluators inter se, is 15% or more as contradistinguished from the 15% of the ‘maximum marks prescribed for the paper’. For U.G. Courses as already mentioned above, if the marks awarded by the first valuator is ‘a’, and that awarded by the second is ‘b’, then, answer paper goes for the third valuation if |x-y|/0.5 X (x+y) > 0.15. Similarly for P. G. Courses, if the marks (assumptively) awarded by first, second, third, and fourth evaluators are a, b, c, d, respectively, then answer paper goes for the fifth valuation if percentage difference between any two of the four evaluations, i.e., a, b, c, and d, is > 0.15, with the percentage difference calculated by the same formula |xy|/ 0.5 X (x+y), where ‘x’ and ‘y’ are any two valuations, the paper goes for the fifth evaluation. 27. The above can be elucidated by an instance: if the marks awarded by the first, second, third, and fourth evaluators are 15, 16, 17, and 20 respectively, the paper will be sent to the fifth evaluator because the percentage difference between the marks awarded by the first and fourth evaluators is greater than 15%, going by the formula above. Thus, (20-15)/0.5 X (20+15) is 5/17.5 and therefore it is 0.285, which in percentage value becomes 28.5%. These assumptive marks, namely 15 and 20 are taken to the exclusion of 16 and 17 keeping in view Paragraph 4 (iii) of 2012 Ordinance which reads: “The average of BEST OF TWO OUT OF THREE VALUATION marks or the average of BEST OF FOUR OUT OF FIVE VALUATION MARKS as the case may be shall be considered for the final computation of the results”. 28. As to Digital Valuation of Answer Papers and Model Key Answers. (a) Some of the petitioners have raised objection as to the level of efficacy and transparency in the matter of Digital Valuation. They also pressed for introduction of the concept of Model Key Answers on the ground that would reduce the vagaries of valuation and evaluators by providing some yardstick. They also banked upon some resolution of the Syndicate made in its meeting held on 26.05.2016 in support of their contention. A great deal of argument was advanced in this connection. They also pressed for introduction of the concept of Model Key Answers on the ground that would reduce the vagaries of valuation and evaluators by providing some yardstick. They also banked upon some resolution of the Syndicate made in its meeting held on 26.05.2016 in support of their contention. A great deal of argument was advanced in this connection. (b) The learned Senior Advocate Shri Vijay Shankar countered the above submissions stating that the matters relating to examination, valuation of papers and modalities of valuation do fall within the exclusive domain of the campus and ordinarily this Court does not take up a roving enquiry and more so when they relate to fastly advancing Medical Science & Technology. He also submits that the Court should show due deference to the policy and academic decisions of the University bodies. The learned Registrar (Evaluation) Dr. Ramesh personally explained the difficulties in immediately implementing the system of Model Key Answers. However, he welcomed the expert views from the community of the students for improving the system as such. (c) The contention of the petitioners that the respondent-University should be directed to adopt the system of Model Key Answers in all the examinations of all the courses, is difficult to accede to. As rightly pointed out by Shri Vijay Shankar, learned Senior Advocate, in examining the academic policies, this Court exercises self restraint regard being had to its inherent limitations. The Writ Court cannot run the race of opinions with the Universities as to what is good and what is bad in academic matters, especially when certain measures are adopted on the basis of lessons drawn from experience in the field. After all, as Justice O.W. Holmes, Jr., of U.S. Supreme Court puts it, ‘the life of law is not logic, but experience’. (d) The reliance of the petitioners on the decision of the Apex Court in the case of KANPUR UNIVERSITY & OTHERS vs. SAMIR GUPTA & OTHERS, (1983) 4 SCC 309 in support of their contention that the University should go for Model Key Answers may not be of much help to them, inasmuch as it was a case relating to Combined Premedical Test i.e., admission to Medical Courses, wherein the question and answers are in the nature of Multiple Choice Objective Type Test. The examinations in the Medical Courses as such will involve different and deeper considerations. The examinations in the Medical Courses as such will involve different and deeper considerations. (e) It is heartening to note that the learned Registrar (Evaluation) having appeared before the Court thoroughly explained how the Digital Valuation System works and that ‘there being scope for improvement even in heaven’, he would look into the individual grievances of the candidates, if any, because of systemic pit falls. This fair gesture coming from the respondent-University is appreciated with the fond hope that it would stand tall and take pro-active steps to address the maladies after taking suggestions from the student community, consistent with the policies of the University. In the above circumstances, these writ petitions succeed in part; a Writ of Mandamus issues to the respondent-University to send such of the Answer Papers of the petitioners only, wherein the percentage difference amongst the valuations (two in the case of U.G. course and four in the case of P.G. course, as the case may be) in terms of 15.06.2012 Ordinance as worked out in paragraphs 25 and 26 (supra) for third or fifth valuation as the case may be, forthwith. It is needless to mention that the University would look into individual grievances of the petitioners in relation to pit falls in the Digital Valuation System and also examine their request for considering adoption of Model Key Answer System or any other desirable measure for making the present examination system more transparent and efficient.