Kerala High Court
University Of Kerala vs Parvathy Krishna on 30 October, 2013
Author: K.M.Joseph
Bench: K.M.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936
WA.No. 1823 of 2013 () IN WP(C).14788/2013
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AGAINST THE ORDER/JUDGMENT IN WP(C) 14788/2013 of HIGH COURT OF
KERALA DATED 30-10-2013
APPELLANT(S)/PETITIONER:
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UNIVERSITY OF KERALA
THIRUVANANTHAPURAM-694034
REPRESENTED BY ITS REGISTRAR.
BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.
RESPONDENT(S)/RESPONDENTS:
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1. PARVATHY KRISHNA
D/O.KRISHNAKUMAR, SARASWATHY MANDIRAM
THOPPIL NAGAR-83, MEDAYIL, KAVANAD P.O.
KOLLAM DISTRICT.
2. KERALA LOK AYUKTA
LEGISLATURE COMPLEX, VIKAS BHAVAN
THIRUVANANTHAPURAM-695033
REPRESENTED BY THE REGISTRAR.
R1 BY ADV.SRI.BRIJESH MOHAN(NO MEMO)
R1 BY ADV.SRI.BRIJESH MOHAN(NO MEMO)
R BY SRI.K.JAJU BABU (SR.)
R BY SMT.RENU D.P.
R BY SMT.M.U.VIJAYALAKSHMI
THIS WRIT APPEAL HAVING BEEN FINALLYHEARD ON 19-03-2014, THE
COURT ON27-03-2014 DELIVERED THE FOLLOWING:
'C.R.'
K.M.JOSEPH
&
A.K.JAYASANKARAN NAMBIAR, JJ.
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W.A.NO.1823 OF 2013
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Dated this the 27th day of March, 2014
J U D G M E N T
A.K.JAYASANKARAN NAMBIAR, J.
The University of Kerala, the petitioner in W.P.(C).No.14788 of 2013, is the appellant before us. The writ petition was filed challenging Ext.P3 interim order passed by the Kerala Lok Ayukta directing the appellant to revalue the answer paper of a student in the subject of Management Accounting.
2. The student in question, the 1st respondent herein, had approached the Lok Ayukta alleging negligence and maladministration on the part of the appellant University in the matter of valuation of her answer paper. By securing 20 marks in the subject of Management Accounting, she had failed to secure the minimum pass mark of 35 out of 100 and in the first revaluation, she could secure only 22 marks. As this was against her expectation, and the Regulations of the University did not W.A.NO.1823/2013 2 permit a second revaluation, she approached the Lok Ayukta with a complaint alleging negligence and maladministration on the part of the University.
3. The appellant filed a detailed statement of objections before the Lok Ayukta pointing out, inter alia, that the low marks secured by the student was on account of her poor performance and further that in denying her the benefit of a second revaluation, it was only abiding by the statutory Regulations. The Lok Ayukta, however, pending consideration of the main issue as to whether or not there was any negligence or maladministration on the part of the appellant, and presumably on sympathetic grounds, proceeded to issue Ext.P3 interim order directing the appellant to revalue the answer paper of the student. This led the appellant to file the writ petition that was dismissed by the judgment impugned in this appeal.
4. We have heard the Learned Standing Counsel appearing on behalf of the appellant University and Adv. Smt. Renu appearing on behalf of the Lok Ayukta. The learned standing counsel for the appellant University would point out that as per the statutory Regulations governing revaluation of answer papers, the 1st W.A.NO.1823/2013 3 respondent student was not entitled to seek a revaluation. The relevant portion of the statutory Regulations that was referred to is reproduced hereunder:
After the revaluation, results shall be finalized as follows:-
a. The original marks secured by the candidate shall not be changed in the following cases.
i. If the revalued marks are less than the marks secured in the original valuation. ii. If the marks exceed the marks secured in the original valuation by less than 4% of the maximum marks of the paper.
b. If the revalued marks exceed the marks secured in the original valuation by 4% to 10% of the maximum marks, the revalued marks shall be taken as the final marks, and the marks secured by the candidates in the original valuation shall be changed accordingly.
c. If the revalued marks are higher than the original marks by more than 10% of the maximum marks of the paper, a second revaluation is to be done and the average of the two revalued marks is to be awarded to the candidate. However the increase in marks in the two revaluations shall be 4% or above, if the change in marks is to be effected.
d. If either of the two/both revalued marks vary from the original marks by 20% or above, the fact shall be reported to the standing Committee on Examinations.
e. If there is a difference of 20% marks or more between the first revaluation and Second revaluation, a third revaluation shall be arranged. Average of the three revaluation marks shall then be awarded to the candidate and the matter shall be reported to the Standing Committee on Examinations.
f. The examiner who is found guilty of improper valuation/revaluation shall be debarred from examinership for University Examinations for a minimum period of three years. A fine of Rs.500/-W.A.NO.1823/2013 4
shall also be imposed on him/her.
g. The Controller of Examinations shall maintain a list of teachers against whom action has been taken under these guidelines. Such blacklisted teachers shall not be considered for appointments in connection with examination work in future.
5. It is further pointed out that the Lok Ayukta did not have the jurisdiction to issue directions in the nature of those contained in Ext.P3 order as the provisions of the Kerala Lok Ayukta Act envisaged only the issuance of recommendations by the Lok Ayukta in matters that fell within the purview of the Act. Reliance was placed on the decision of this Court in Sunayana v. Tahsildar, Trivandrum and others - 2013 (1) KHC 836 - where in the context of the issuance of a community certificate, this Court held that the Lok Ayukta does not have the power to issue a direction for the issuance of a community certificate because there was a proper regulated procedure contemplated under a special enactment to deal with such matters. He also placed reliance on the decision of the Supreme Court in Secretary, West Bengal Council of Higher Secondary Education v. Ayan Das and Others - 2007 KHC 4011 - where the Court held that in the absence of a statutory provision, a court could not direct reassessment of answer scripts. Per contra, Adv. Smt. Renu, appearing on behalf of W.A.NO.1823/2013 5 the Lok Ayukta would point out that the Lok Ayukta was acting well within the bounds of its jurisdiction while passing Ext.P3 order. She points out that the Statement of Objects and Reasons, indicating the purport of the Act, would clearly reveal that it was an enactment that was brought into force to provide a machinery against corruption in public administration and the University could not claim any exemption from the regulatory regime. When a student approached the Lok Ayukta alleging negligence and maladministration by the University, it was obligatory on the part of the Lok Ayukta to take cognizance of the issue and pass appropriate orders to redress the grievance of the complainant before it. With regard to the nature of orders that could be passed by the Lok Ayukta, she seeks to draw support from the provisions of Section 9 (5) and Section 24 (2) of the Act, as also Rule 3 of The Kerala Lok Ayukta (Powers of Civil Court) Rules, 1999, to contend that the powers available to the Lok Ayukta under the Act and Rules are wide and cannot be restricted in any manner. She also places reliance on the decision of the Bombay High Court in Dr.Vishwasrao Chudaman Patil v. Lok Ayukta, State of Maharashtra and Others - AIR 1985 Bombay 136 - to contend that, in the matter of passing interim orders, the Lok Ayukta had wide powers to pass orders that were incidental to the discharge of W.A.NO.1823/2013 6 its duties in a given case.
6. Having considered the submissions made by counsel appearing on both sides, the relevant provisions of the Lok Ayukta Act and the Kerala University Regulations, we are of the view that the appellant must succeed. As a creature of a statute, the appellant University was bound to act in compliance with the provisions of the Kerala University Act and the Regulations framed thereunder. The Regulation, in the instant case, was one that governed revaluation of answer papers and it was an academic policy that found expression in the Regulations. In the absence of any challenge to the Regulation in question or the policy leading up to it, one cannot ignore the mandate of the said Regulations. It is not in dispute that, on a strict interpretation of the Regulation, the student was not entitled to seek a revaluation of her answer papers. In that view of the matter, we do not think it was open to the Lok Ayukta to issue a direction to the appellant University to revalue the answer paper of the student and thus to act contrary to the express provisions contained in the statutory Regulations. Such a direction cannot be justified on sympathetic grounds either for it is trite that there is no place for misplaced sympathy in academic matters that are regulated by statutory provisions. W.A.NO.1823/2013 7
7. In as much as the learned counsel appearing on behalf of the Lok Ayukta has sought to justify Ext.P3 order as falling within the powers of the Lok Ayukta, we deem it appropriate to clarify the scope of the powers that can be exercised by the Lok Ayukta while passing interim orders in matters coming up for consideration before it. As already noticed by the decision of this Court in Sunayana's case (supra), the Lok Ayukta can, on taking cognizance of the grievance raised in the complaint filed before it, and on satisfying itself of the existence of a valid cause, inform the authority concerned of the injustice or hardship caused to the complainant. Thereafter, it can consider the "action taken" report submitted by the authority and close the case or, if not satisfied with the said report, forward a special report to the Governor. This legal position has also been stated in State of Kerala v. Bernard - 2002 (3) KLT 254 where this Court held that the Lok Ayukta has neither any adjudicatory power nor the power to enforce his recommendation or finding. The nature of the final orders that can be passed by the Lok Ayukta are hence recommendatory in nature and cannot assume the nature of positive directions to any authority.
W.A.NO.1823/2013 8
8. When it comes to interim orders, we note that as per the provisions of The Kerala Lok Ayukta (Powers of Civil Court) Rules, 1999, in particular Rule 3 thereof, the Lok Ayukta can make any interlocutory order as may appear to it to be just and equitable to meet the ends of justice. Rule 3 reads as under:
"3. Powers of the Lok Ayukta or Upa-Lok Ayukta under the Code of Civil Procedure, 1908 (Central Act 5 of 1908):- (1) Apart from the powers conferred on the Lok Ayukta and Upa-Lok Ayukta under Section 10 and 11 of the Ordinance the Lok Ayukta or an Upa-Lok Ayukta or any officer authorised in this behalf by the Lok Ayukta shall have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely:-
(a) to grant injunction;
(b) to issue commission for local inspection;
(c) to make, during the pendency of any complaint, any interlocutory order, as may appear to the Lok Ayukta to be just and equitable to meet the ends or justice;
(d) to allow alteration of the complaints or applications;
(e) to implead as parties, the legal representatives of a deceased party in any complaint pending before it, subject to the provisions of Order XXII of the Code of Civil Procedure, 1908, in so far as they are applicable;
(f) to review its decisions or orders, on interlocutory applications;
(g) to dismiss a complaint for default or to decide it ex-parte;
(h) to set aside an order of dismissal of a complaint for default or any order passed ex-parte;
(2) the period of limitation for an application to implead the legal representatives of a party, shall be ninety days from the date of death of the party to the complaint.
(3) The period of limitation for applications under W.A.NO.1823/2013 9 clause (f) and (h) of sub-rule (1) shall be thirty days from the date of the decision or order, as the case may be.
(4) The provisions of Section 5 of the Limitation Act, 1963 (Central Act 36 of 1963) shall be applicable to applications mentioned in clauses (e), (f) and (h) of sub-rule (1)."
9. Under the said Rules therefore the Lok Ayukta is conferred with the powers of a civil court while trying suits under the Code of Civil Procedure in respect of certain enumerated manners and can pass orders that are necessary or incidental to the exercise of its powers under the Act. We feel, however, that such orders cannot be in the nature of a final order. They cannot also be in the nature of orders that fall outside the jurisdictional purview of the Lok Ayukta under the Act. Although counsel for the Lok Ayukta would rely on the decision of the Bombay High Court in Dr.Vishwasrao Chudaman Patil's case (supra), we have not seen any observation or finding therein that would persuade us to take a contrary view. The further reliance placed by counsel, on the provisions of Section 9 (5) and Section 24 (2) of the Act, to contend that the power to pass interim orders is fairly wide, is also of no avail as we do not think the said provisions could be interpreted to mean that the Lok Ayukta could arrogate to itself powers that are not expressly conferred under the very Act under which it is W.A.NO.1823/2013 10 constituted. This is more so when, as in the instant case, the interim order passed by the Lok Ayukta is a direction to the University to act in a manner contrary to the statutory Regulations
- an order which the Lok Ayukta could not have passed even as a final order.
In the light of our findings, the appeal preferred by the appellant University must succeed. Resultantly, we reverse the findings of the learned single judge and set aside Ext.P3 order of the Lok Ayukta. We make it clear that the proceedings initiated through the filing of the complaint before the Lok Ayukta can continue before that authority in accordance with law. With these observations, the writ appeal stands allowed.
K.M.JOSEPH JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE prp