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2019 DIGILAW 274 (CAL)

MD NURUL KUDDUS v. UNIVERSITY OF CALCUTTA

2019-02-26

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : BISWANATH SOMADDER, J. In re: CAN 1370 of 2016 1. This is an application under section 5 of the Limitation Act. 2. Having heard the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown by the review-applicant to explain the delay in filing of the Memorandum of Review. As such, the delay is condoned. The application for condonation of delay, being CAN 1370 of 2016, is accordingly allowed. In re: RVW 24 of 2016 with CAN 1371 of 2016 3. The instant review arises out of an order dated 8th September, 2015, passed in MAT 970 of 2015 with CAN 6462 of 2015 (FMA 4729 of 2015) (Md. Nurul Kuddus vs. The University of Calcutta & Ors.), which reads as follows:- "The writ petitioner is the appellant before us. He is aggrieved because he did not according to him get the appropriate marks from the examiner. He had an option to apply for re-examination but he did not exercise the same. Now the time is over. The learned Trial Court on that basis dismissed the writ petition. We are unable to interfere with the order passed by the learned Trial Court. The appeal and the application are both dismissed. Parties shall, however, bear their own cost." 4. The review-applicant is the appellant, namely, Md. Nurul Kuddus. 5. At the time of hearing, the learned advocate for the review applicant hands over a copy of a document which appears to have been signed by one Md. Rabiul Islam dated 8th December, 2015. According to him, this document will indicate that the appellant ought to have been given appropriate marks by the concerned examiner for a particular question. Let a copy of this document dated 8th December, 2015, be taken on record. 6. It is further submitted by the learned advocate for the review applicant/appellant that there is an error apparent on the face of record inasmuch as the earlier Division Bench, while passing the order dated 8th December, 2015, had held that the appellant had an option to apply for reexamination but he did not exercise the same and the time was over. Learned advocate submits that such an option was, in fact, exercised by the appellant but this did not cause any change/increase of marks. 7. Learned advocate submits that such an option was, in fact, exercised by the appellant but this did not cause any change/increase of marks. 7. On the other hand, the learned advocate representing the University of Calcutta has referred to two judgments; one reported in (Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455 ) and the other, reported in (Kamlesh Verma vs. Mayawati & Ors., (2013) 8 SCC 320 ) in order to submit that the scope of review is limited and in the facts of the instant case, the appellant is actually seeking re-hearing of the appeal in the guise of review. 8. After considering the respective submissions made on behalf of the parties, we notice that in the facts of the instant case, the review-applicant had actually exercised his option and applied for re-examination before the concerned authority of the University of Calcutta. Now, the question is whether this factual inconsistency can allow us to interfere with the conclusion arrived at by the Court while proceeding to dismiss the appeal and the application on 8th September, 2015. The answer is a clear, 'no'. The reason is, once re-examination was allowed and there has been no change/increase of marks, it is not open to the review-applicant to refer to a certificate issued by an Assistant Professor of another college at a belated stage, i.e., on 8th December, 2015. It would have been otherwise had the concerned authority of the University of Calcutta not granted the review-applicant an option to apply for re-examination. The review applicant/appellant did apply, but there was no change/increase of marks. The University, in the facts of the present case, has not done anything which is not in accordance with law. In fact, the University had allowed the review-applicant to exercise his option to apply for re-examination. It is not the duty of the Court to assess the correctness of the re-examination done by an expert of the University in the backdrop of a certificate issued by another person, especially when the applicable law does not permit the Court to do so. 9. In such circumstances as stated above, we do not notice any other sufficient reason for the purpose of interfering with the order under review. 10. The review, therefore, is liable to be dismissed and is accordingly dismissed along with the connected application, being CAN 1371 of 2016. 11. 9. In such circumstances as stated above, we do not notice any other sufficient reason for the purpose of interfering with the order under review. 10. The review, therefore, is liable to be dismissed and is accordingly dismissed along with the connected application, being CAN 1371 of 2016. 11. Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties. Arindam Mukherjee, J. : I agree.