Kerala High Court
University Of Kerala, Represented By ... vs Sandhya P. Pai And Ors. on 11 February, 1991
Equivalent citations: AIR1991KER396, AIR 1991 KERALA 396, (1991) 1 KER LT 812 (1991) ILR(KER) 2 KER 902, (1991) ILR(KER) 2 KER 902
JUDGMENT Sukumaran, J.
1. Sandhya P. Pai is a heroine in her own right. She sought, but in vain, justice from the University of Kerala. She then fought and got it from the court of law. The University appeals. It attacks the judgment individually; it projects a greater grievance, about an unbearable burden, which it will have to bear, if every student nursing a grievance rushes to the court, particularly having regard to the multitudinous number of the students it is serving at every moment.
2. The appeal is thus important. The questions are of a general character. The problems touched upon are perennial in nature. Minute attention to every aspect arising in appeal is particularly called for in these circumstances.
3. We shall now set out the background in which the litigation was launched.
4. Sandhya had an illustrious educational career. There was no hitch till she reached the graduate course. It is now clear that she was toiling upward in the night, when her companions slept. She had, apart from her educational excellence, commendable confidence in her performance. She appeared for her graduate examination, scheduled in June, 1982. (The June examination is supposed to be what in older minds is associated with the concept of the April examinations. It is a sad and disgraceful feature of current times that some of the Universities do not have a sense of shame in holding even in November examinations which should have been held in early April. No one has complained about that grievance so far. The question about the accountability of a State instrumentality in relation to a callous destruction of life and its opportunities, may possibly arise in the not too distant future. The courts will have to deal with the problem at that time).
5. The results of the examination were duly declared. She had the shock of her life when the results disclosed that she did not secure a pass in that examination. In the subsidiary subject of World History, she was adjudged as having obtained marks much below the prescribed minimum.
6. The incident, extremely distressing and disappointing to a studious soul, planning her future in well thought outlines, would have ordinarily frustrated a young student of that age. She was, however, resourceful to tide over that crisis. The Principal of her college knew her well and had appreciative information about her scholastic career. Her request to permit her to sit in the M.A. class and pursue her studies, in the expectation that the revaluation of her marks for which she had applied, was readily acceded to. Subsequent events would vindicate her request and the Principal's permission. The revaluation has to be done under the binding provisions in force in the University, within a period of 45 days. She could therefore reasonably expect a final verdict of her performance in the examination within a comparatively short time. She had, however, to face, continuously and for long, an agonising situation. The University and its officials were fiddling, when her heart was burning. She made a pathetic appeal at the culmination of the current academic year, to permit her to write for the M.A. previous examination, so that she may not suffer irretrievably, in her studies. The University was then firm in its inflexible adhesion to the rules. She had not passed the graduate examination. She could not be permitted under the rules to write the M.A. previous examination. Such was the curt reply which the University sent, on 4-3-1983 evidenced by Ext. A16. She had earlier done whatever she was obliged to do under the provisions prescribing the method of revaluation. The request for revaluation, as noted earlier, had been sent as early as on 7-10-1982. The revaluation fee had been remitted. The Micawberian optimism she was cherishing in her mind, at last was cruelly blasted by the heartless acts of the University and its officials. She swears, and we are inclined to accept her testimony that it was an excrutiating agony for her, to slowly mark her pace to the college campus every day, with the opprobrium of a student who had failed in her examinations.
7. The revaluation was completed, and a memo Ext. AS, dated 14-7-1983, intimating a happy result about her having secured 55 marks in World History (Subsidiary), was accordingly sent to her. A further memo Ext. A9 dated 16-7-1983 informed her that "her result published as failed has been modified as passed in First Class as the result of revaluation (vide this office letter No, E.J.II. 2754/82 dated 14-7-1983)." She was directed to surrender the mark list issued to her earlier.
8. In the meanwhile, she found continuation of her studies in the S.D. College where she had, been, a student all along, impossible in view, of a mental anguish. She who had been faring always better than her friends, had to walk to a junior class, carrying a cross of the ignominy of a poor student. She could not possibly take it with that, unconcern as adopted by that social Philosopher Anatole France who got drowned in his graduate course, securing only a zero for his Geography. She shifted her studies to St. Berchman's College, Changanacherry. There she prosecuted her studies/and successfully too. She came out in flying colours in the M, A. examinations. The rank Certificate Ext. A17 dated 19-10-1987 declared to the world that she had appeared for M.A. English Language and Literature Examinations of April/May 1985, that she had passed, the examination in First Class and had secured the second Rank. The provisional certificate Ext. A15 dated 16-11-1985 issued earlier had already indicated her having passed the examination in First Class. Her actual rank was known only by Ext. A17.
9. It should not be overlooked that the revaluation was so effected by the University itself, and on its own. Her letters to the University to hurry up the revaluation so that she could write the M.A. previous examination on 10-2-1983 (Ext. A7), did not evoke any favourable response. The college representatives conveyed the information to the University direct. The Members of the Syndicate were personally told about the same. When all these attempts failed, she approached this Court and invoked that great constitutional remedy provided under Art. 226. This Court issued a peremptory directive to the University, to publish her results within two weeks thereafter. It was in pursuance of that direction that the revaluation was completed and the memos intimating her about it as referred to above had been issued. It is unfortunate that the University conducted itself as an unruly child fearing only the rod.
10. The very maintainability of the suit was questioned by the University. Other contentions such as lack of territorial juris diction for the court, the suit being barred by limitation, and the absence of negligence on the part of the University, were also, put forward by defendants 1 and 2, who are respectively the University and its Controller of Examinations.
11. Though a sum of Rs. 1,01,434/-was claimed as compensation under various heads, the court below passed a decree in the sun) of Rs. 36,376/-. Proportionate costs also had been awarded under the decree. In as much as the suit had been filed as an indigent person a substantial amount by way of court fee on the higher plaint claim will have to be paid over to the Government.
12. The two substantial contentions urged on behalf of the appellant-University were: (a) on the sustainability of the plaint claim and (b) on the excessiveness of the quantum, of damages.
13. The facts narrated above clearly establish a case of grievous negligence on the part of the University, its officers and servants. Ext. B2 contains a positive stipulation of the time within which the revaluation has to be effected and the results communicated to the students. Clause 4 of the guidelines could be usefully extracted in this connection :
"Applications for revaluation should be submitted so as to be received by the Controller of Examinations within THREE WEEKS of the publication of the results of the concerned examinations and the result of, revaulation communicated normally within a period of 45 days from the last dated fixed for the receipt of applications."
It is unnecessary to refer to other matters of detail as contained in the guidelines. It is admitted that the time limit indicated in Ext. B2 had not been adhered to by the University. It is not a marginal transgression of the time limit. As against the 45 days mentioned in Clause 4, the actual delay in the case is 235 days. The contention was, that a mere delay in the transmission of the revaluation results should not cast a heavy burden on the University, particularly, in a situation where the University has to attend to the examinations wherein many thousands take part. While any court will be inclined to show an understanding consideration for the University discharging its obligations to a vast multitude of student, population, the court will simultaneously watch, with vigil whether every effort and endeavour had been taken by the officers and servants of the University to discharge the duties in tune with the scheme of the guidelines. In a country where unemployment is acute, the tension in a growing child facing grave, and gray uncertainties of future, cannot be underrated Educated unemployment would appear to be, a special disadvantage for the youth of the State noted for Us literacy tradition Every delay, whether it be in the conduct of the examination, the publication of the results or the issue of certificates, would have to, be viewed by the courts in the background of the hopes and plans of the anxious youth struggling hard for a front rank in competitive examinations. Even though many thousands sit for and write the examinations, the question of revaluation would not assume unmanageable proportions. A large section among the students would have their own assessment of the performance. If they could not get through, and contrary to their own hopes entertained in that behalf, many will not bother to challenge the examination results with an application for revaluation. Only such of them as are reasonably confident would move for further steps for the revaluation of the answer papers. Marginal variations would not be of any help as is clear from the guidelines. The application for revaluation would ordinarily be expected from only persons who would have really fared well, and are confident of their good performance in the examination. U is a solemn obligation of the University to hurry with their applications without wasting even a second.
14. The University states that it has to determine the destiny of many thousand students and within a compressed time, and that the court should be appreciative of the practical difficulties in running and managing any massive human organisation. While appreciating the massiveness of the works that have to be done and even the time limit within which they have to be done and with perfection, we cannot, on that ground, exonerate the University of its fundamental obligation to complete the valuation of the merit of a student within time. Difficulties do not permit an authority to act in derogation of its duty such as the duty to observe principles of natural justice, (vide R. v. Havering Justice, (1974) 3 All ER 484 at 488). If men and material are inadequate, it is for the University to address itself on those questions and to find out appropriate and adequate remedies. It is not for the court to give an advice or guideline in such matters. The Universities were not born yesterday. The hallowed institutions carry with them the rich and ripe experiences of bygone ages, and of a rare variety of human species the cream of the intelligential. New situations-require modulations. That is precisely the duty of those with whom the functions of a University are entrusted by a solemn legislative enactment. A University is not yet another factory where production by number is fixed as the sole standard for payment of wages. The University cannot compromise with quality. The followers of Darwin cannot reconcile with anything imprecise in their life, even in the course of an innocent narrative in an informal meeting. (Darwin woke up from his sleep, to tell his lively awake friends in a dinner party, about an inaccurate statement which had crept in in an earlier narrative he had made). We will not be justified in winking our eyes, at grievous lapses when they mar precious lives of a studious generation of students. If additional posts are required to cope up with the increased volume of work, it is the duty of the State to find out the resources needed for the same, and to resort to sophisticated and scientific methods which would destroy the tedium in the work and facilitate precision and speed simultaneously. The delay of about 8 months in the despatch of the revaluation marks is murderous in character in relation to the educational life of a young student. Every second of the victim of the erroneous valuation is a lynching experience for the student. No court win permit such cruelties to pass unnoticed. (See the stern action taken by the Supreme Court in Board of High School and Intermediate Education, U. P. v. Chitra Srivastava, AIR 1970 SC 1039).
15. The Controller of Examinations who gave evidence as D.W. 1, spoke about matters in a light vein. He has not attributed any seriousness to the agonies of the student, and the avoidable but unending worries she had been subjected to by the gross negligence of one of the examiners who was disloyal to his profession and deceitful in the discharge of his duties. The plaintiff had pointed out how in addition to her representations and reminders, the college also had independently and repeatedly reminded the University about it. The plaintiff had spoken about the matter having been brought to the notice of the members of the Syndicate personally even. It is in spite of all these efforts, that the University remained immobile and with an inscrutable face of a sphinx. She begged on bended knees as it were even in February, 1983 to permit her to write the M.A. previous examination of March, 1983. Even then the University was unmoved, and cruelly continued the injustice to the student, It had no difficulty in quoting chapter and verse and advising her about the impermissibility of her request, on the ground that she was a student who had failed. Her request made in accordance with law, and complying with the due formalities, to find out whether she had in fact failed, was even then bypassed by the University, despite the expiry of the outer limit of time for the disposal of such request and representation. That degree of recklessness on the part of the University, deservedly, dumps on it the wages of sin.
16. It is unnecessary in this case to launch on a discussion about the origin, growth and flourishing of the great Universities from early times. Nor is it necessary even to sketch their position in modern India. An effort was made in India, in early days, 'to raise the standard of higher education". 'The first five Universities of Calcutta, Madras, Bombay, Lahore and Allahabad undertook instruction and supervision as well as examination. The Senates of the Universities of the early days took in "High Court Judges, Bishops, members of Executive Councils, the provincial Directors of Public Instruction and Professors of Government and missionary colleges. (See "The New Spirit in India", by Henry W. Nevinson, pages 4, and 5). It is not without reason that a University is thought about as "a place of light, of liberty and of learning". (See The Governance of England, by Sioney Low, page 146). Time was when the University and its academic bodies had received the greatest of respect from courts. (See University of Mysore v. Govinda Rao, AIR 1965 SC 491). The large number of eases in which the courts have been forced to interfere even in matters of academic character, is a sad but striking feature of the current functioning of many of the Universities. The disinclination of a court to disturb the normal functioning of these institutions of learning, cannot dissuade the court from meting out justice to a student who had suffered much. In our administration set up, the University is a constitutional instrumentality and the State coming within Article 14 of the Constitution. It cannot act arbitrarily, unfairly or unreasonably. A citizen injured by a neglect on the part of such a statutory instrumentality would be entitled to be indemnified in respect of damages sustained by it. Old notions about cases where no duty of care was found to be owned by a University (as in Thorne v. University of London, (1966) 2 QB 237 and Sammy v. Birkbeck College, The Times, May 20, 1965) cannot then be invoked to disown liability of the University. (No such attempt was made in the present case. The two decisions were not relied on by the University. It is also doubtful whether the summary of the legal position on this aspect as given by Charles worth on Negligence 7th Edition para 2-13a Page 31, is very precise.) In the present case, there is a positive representation by the University under Ext. B2 of its obligation in supplying the revalued marks within a normal period of 45 days. That is yet another ground for distinguishing cases in which no such representation had been made to the student community.
17. In the light of the discussion above, we are clearly of the view that there was negligence on the part of the University in the discharge of its duties of making available to the plaintiff, the revaluation marks within the prescribed lime. The finding of the court below to that effect, is perfectly justified. It follows that the injury arising from the establishing negligence of the University in that regard has necessarily to be compensated by the University itself.
18. On the question of quantum of compensation, the court below, if at all, has erred in favour of the University. The award as appeared to be ridiculously low. However, as there is no appeal by the student, it is unnecessary for us to go into the details of claims.
19. The court below granted Rs. 16,800/-represcnting one year's salary, which she lost at the postponement of the results of her postgraduate examination. She has given cogent and convincing evidence not merely about the theoretical possibility of procuring lucrative jobs, for one equipped with the postgraduate qualification. In specific terms she had referred to the colleges where she could have got appointments, and where her own class-mates who had secured less marks for the graduate examination, were able to get appointments earlier than her. She has also given evidence about a distinct possibility of obtaining other and more attractive appointments like those in the nationalised banks. The evidence given by her remains unshaken in cross-examination and uncontradicted by contrary evidence on the side of the University.
20. An amount of Rs. 1,700/- for litigational expenses in connection with the writ petition which she was constrained to file to compel the University to discharge its duty in supplying to her the revalued marks, is to be reimbursed by the University. She had to incur additional expenses towards hostel fee and the like. Incurring of such expenditure has been established by proper receipts and certificates, such as Exts. B1, A12 and A13. The payments she had to make towards tuition fees for the M.A.. course in S.D. College and for appearing for the examination in M.A. previous, are evident from Exts. A4 and A6. The court below granted her only Rs. 3,000/- for her mental agony she had suffered. We feel that in so drastically reducing her claim on that count, that court erred. The suffering was of an excruciating character and it was of a long duration. For a student with bright academic career throughout, even a reduced rank is extremely painful. To brand her as one undeserving even of a mere pass in the examination, is a greater curelty. The mental pain arising there from, can be easily imagined by those who have an involvement in the studies and in a legitimate aspiration for a recognition of their hard and devoted work.
21. We are of the clear view that the damages granted by the court below are not in any way excessive. No variation is called for in the quantum of compensation as well.
22. In the result, we dismiss the appeal and with costs.