Orissa High Court
Arindam Chakra vs Biju Pattnaik University Of Technology ... on 11 November, 2014
Equivalent citations: AIR 2015 (NOC) 152 (ORI.)
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 14122 of 2014
In the matter of an application under Articles 226 of the
Constitution of India.
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Arindam Chakra ......... Petitioner
-versus-
Biju Pattnaik University of ......... Opp. Parties
Technology and another
For Petitioner : M/s. Trilochan Rath,
H.K.Tripathy & R.S.Singhar
For Opp.Parties : M/s. Subir Palit,
A.Mishra, R.Tripathy &
A. Parija.
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 29.10.2014| Date of judgment: 11.11.2014
Dr. B.R.Sarangi, J.The petitioner, who completed 8th Semester in Electrical Electronic Engineering Branch bearing registration No. 0901289371 of 2009-13 Batch of Biju Pattnaik University of Technology has filed this writ petition seeking following relief :
" ............. to direct the opposite parties to produce the answer scripts in „Electro Magnetic Fields and waves‟ paper of the petitioner who appeared in"4th Semester (Special/Back) Examination, 2012-2013" vide 2 University registration No. 0901289371 of 2009-13, for kind perusal;
Declare the clause "This facility is, however, not available for special examinations" of para-12.0 (a) of the academic regulation of BPUT as ultra vires;
Direct the university authorities to award appropriate marks to the petitioner against the unevaluated questions and give grace mark against out of course question and also full marks against correct answer as more fully described in the foregoing paras; and Pass appropriate order against the university authorities awarding exemplary cost and compensation for putting the petitioner under undue mental agony and harassment."
2. The short facts of the case in hand are that the petitioner, who was prosecuting his studies in Electrical Electronic Engineering Branch under Biju Pattnaik University of Technology could not be successful in securing pass marks in „Electro Magnetic Fields of Web‟ subject of the 4th semester and as a result, he had to appear in the „4th Semester (Special/Back) Examination, 2012-13. The examination was held on 20th March, 2014 and result thereof was declared in the month of June, 2014. The petitioner was awarded less marks and declared „fail‟ once again though he did well in the examination and was expecting pass in the examination with good marks. However, having applied for xerox copies of the answer sheets and on receipt of the same, he came to know that his answer to question no. 1(i) was not evaluated at all, 3 although he had given correct answer to the said question. That apart, in respect of question No.1(b) although he had answered correctly. „zero‟ was assigned against that answer. Similarly, against question No.1(g), question No.7(b) and question No.8(b), which were numerical questions, he was awarded one mark less than the pass mark although question of awarding less mark to such answer was not permissible for the reason that the question mostly required a student to enter a number for the answer. The question might also require a student to enter units or to specify the correct number of significant figures, which means always a correct answer carrying full mark or no mark in the event it is wrong. Besides the above, although grace mark of 5 was awarded as against question no. 2(a) in favour of all the candidates by taking into account the fact that the same was set out of syllabus, the petitioner had been deprived of that without any rhyme or reason. As a result of all the aforesaid illegalities and erroneous evaluation, he was awarded 21 marks in toto as against the required pass mark of 25 in the paper. Therefore, the petitioner submitted an application to the authority concerned for recounting/rechecking of the said paper in his own institute, namely, Trident Academy of Technology. While the petitioner‟s application was recommended to the 4 university, the institution submitted its own recommendation pointing out the error in evaluating the answer sheets of the petitioner and assessed the answer script of the petitioner to be awarded 27 marks instead of 21 marks and such recommendation was made on 01.07.2014. It is alleged that till date no action has been taken by the university nor has any intimation been issued in that respect. Hence, this writ petition.
3. Mr. T. Rath, learned counsel for the petitioner, strenuously urged the inaction of the university authorities in not evaluating and awarding the marks in the subject „Electro Magnetic Fields of Web‟ and submitted that there was inaction of opposite parties 1 and 2 in re-totaling and re-adding marks in respect of the „special examinations‟ which they ought to have done vide para 12.0(a) of the „Academic Regulations Governing B.Tech/B.Pharm/B.Arch Programmes‟ prescribed by the BPUT authorities. Consequently, he seeks the provisions contained in para 12.0(a) of the academic regulation to be declared ultra vires with direction to the opposite parties for re-total and recheck the marks on the basis of the recommendation made by the institution in the subject 5 „Electro Magnetic Fields of Web‟ of the 4th semester (special/back) examination, 2012-13.
4. Mr. Subir Palit, learned counsel for the Biju Pattnaik University of Technology, argued with vehemence justifying the action of the university stating that as per the provision contained in clause-4.5 of the academic regulation, re-valuation of any subject of special examination is not permissible. Since the petitioner appeared in special examination, question of re-valuation does not arise though such plea is not canvassed in the counter affidavit save and except stating that the academic regulation prescribed to conduct one special examination for the students who had failed in the regular examinations. Since such examination being over and above the regular examination and no such rechecking facility being prescribed, as a student gets chance in all the semesters to clear his back papers.
5. He has relied upon paragraphs-19 and 20 of the judgment in H.P. Public Service Commission v. Mukesh Thakur, AIR 2010 SC 2620, wherein it was held that it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates 6 and as such it was not permissible on the part of the High Court to go for examining the answer sheet. Basing on observation of the Supreme Court, Mr. Palit, submitted that this Court cannot examine this question and the relief sought by the petitioner cannot be granted by this Court.
6. Considering the contention raised by learned counsel for the parties and after going through the records and the facts pleaded, it is revealed that admittedly the petitioner has completed 8th semester successfully in Electrical Electronic Engineering Branch of 2009-2013 batch of BPUT. Admittedly also he could not secure pass marks in „Electro Magnetic Fields of Web‟ a subject of the 4th semester for which he had to appear in "4th Semester (special/back) Examination 2012-13, which was held on 20.03.2014 the result whereof was declared in the month of June, 2014. He was awarded less mark and was declared „fail‟ on the said subject though he had done well in the examination and expected good marks. When he saw the result, he applied for xerox copies of the answer sheet which was supplied to him vide Annexures-1 and 2 and on perusal of the same his apprehension was found correct. Therefore, he has pleaded the same in paragraph-5 of the writ petition as follows:-
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"5. That it will be appropriate here to submit that after getting answer sheet vide Annexure-2, the petitioner was surprised to found that his answer to Question NO.1(i) has not been evaluated at all, although he has given correct answer to the said question. That apart, question No.1(b) although he has been answer correctly but the same has been awarded (0) mark. Similarly, against question No.1(g), question No.7(b) and question No.8(b), which were numerical in questions, were awarded one mark less of the total marks although question of awarding less marks to such answer is not permissible for the reason that such questions mostly requires a student to enter a number for the answer. The question might also require a student to enter units or to specify the correct number of significant figures. Which means always a correct answer, carries full mark or no mark in the event of being wrong. Besides the above, although grace mark of 5 has been awarded as against question no. 2(a) in favour of all the candidates by taking into account the fact that the same was set out of syllabus, but the petitioner has been deprived of benefit without assigning any rhyme or reason. As a result of all the aforesaid illegalities and erroneous evaluation, he has only been awarded 21 marks in total as against required pass marks of 25 in the paper."
7. No specific answer has been given to the aforesaid facts mentioned in paragraph-5 of the writ petition by the university in its counter affidavit. In paragraph-5 of the counter affidavit, the university has pleaded, as follows:
"5. That in reply to the averments made in Paragraph No.5 of the writ petition, it is humbly and most respectfully submitted that the answer scripts have been evaluated by the registered teacher of the University (teachers from affiliated and constituent college) and after such evaluation, the results of the petitioner along with similarly situated students were published. Therefore, challenging the evaluation by the candidate himself is bad in law as there are experts who really judge the best marks to be awarded to any answer. Furthermore, the evaluation is such a process where no one feels satisfied with end result and if one will fulfil the general demand, it will lead to a situation 8 where no finality will ever come; rather it would result in collapsing the entire system and public at large will be seriously affected and also the schedule of examination will not be completed within the academic session which is non negotiable.
Therefore, the claim of the petitioner is misconceived and without any substance. The petitioner is required fulfil the mandatory requirement as prescribed in Academic Regulation of the University which is framed by the Academic Council of the University."
8. From the above pleadings, it appears that the university has not given any specific reply to the contention raised by the petitioner and rather the reply of the university is totally fake and evasive.
9. The State Legislature enacted an Act to provide for the establishment and incorporation of a technological university in the State of Orissa and matters connected therewith or incidental thereto called „The Biju Patnaik University of Technology Act, 2002‟. Sub-section (a) of Section 2 defines „Academic Council‟ of the University. Section 19 of the said Act defines Academic Council, which states that it shall be the principal academic body of the University and, subject to the provisions of this Act and the Statutes, it shall coordinate and exercise general supervision over the academic programmes and policies of the university and shall be responsible for the maintenance of standards of instruction, 9 research, education and examination within the University and shall exercise such powers and perform such other duties as may be conferred on it by Statutes. Section 20 of the said Act deals with the powers and functions of Academic Council. As per sub-section (ii) (c) of Section 20, the academic council prescribes qualification for admission of student to various courses of studies, to research degrees and to the examinations and the conditions under which exemptions may be granted. Sub-section (ii) (d) of Section 20, the academic council prescribes standards of evaluation of the performance of students and classification of students on the basis of their performance in the examination. Therefore, the academic programme of the university is guided by its academic council which consists of all Principals of affiliated and constituted colleges, eminent Professor of the Govt. of Orissa and Govt. of India as well as the Industries of repute numbering around
165. On due deliberation and consultation, regulation has been prepared by the university called „„Academic Regulations Governing B.Tech/B.Pharm/B.Arch Programmes‟‟.
10. Mr. Palit, learned counsel for the University, referred to regulation 4.5 of the said Academic Regulations, which reads as follows:-
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"4.5. There shall be a Special examination after the 8th semester examination for 7th and 8th semester subjects. Students who have failed in subjects registered by them in 7th and 8th semesters, may avail this opportunity to clear these subjects. Students, after completion of 8th semester, can register in any number of subjects (failed) for the Special examinations. The Special Examination will start after 30th June of every year.
There shall not be any re-valuation for any subjects of the Special Examination."
He advanced his argument strenuously submitted that there shall not be any revaluation of special examination paper as that is not permissible under the regulation. Since the petitioner had appeared in special examination and revaluation was prohibited under the Regulations, his claim cannot be acceded to and rightly such benefit has not been extended to him. He further submitted that there was a special examination after the final semester examination for 3rd to final semester subjects. Students who have appeared the final semester examinations are eligible to appear in the special examination and the students who had appeared in the semester examination (3rd to final semester) and had secured „F‟ grade in the subjects, were eligible to avail this opportunity to clear these subjects. Students after completing final semester examination, can register in any number of subjects (failed) for the special examination. The special examination is to start after 30th June every year. It is submitted that this 11 facility having been availed of by the petitioner as per the regulations, he cannot claim the benefit of re- totaling/rechecking of the answer sheets as the regulations prohibit to do so. Clause-12.0 (a) of the Academic Regulation deals with Re-totaling/rechecking, which reads as follows:-
"12.0 (a) - Re-Totalling/Re-Checking: A student may apply through his/her college for Re-totaling/Re- checking of a paper within 10 calender days from the date of publication of the results in each Semester. However, evaluation be done for un-evaluated questions, if any. This facility is however not available for special examinations"
11. Mr. T. Rath, learned counsel for the petitioner assails the very same condition stipulated in clause-12.0 (a) to the extent "This facility is however not available for special examinations" and states that the clause itself create hostile discrimination among the students those who have prosecuted their studies in the same university and as such this amounted to arbitrary and unreasonable exercise of power and is hit by Article 14 of the Constitution as the same is unreasonable. Therefore the regulation as per clause-12.0 (a) to the extent mentioned above be declared ultra vires. He has pleaded the same in paragraph-11 of the writ petition, which reads as follows:-
"11. That the conduct of university in restricting the facility of Re-totalling/Re-checking as provided at 12 para 12.0 (a) of the aforesaid Academic Regulation of BPUT only to the regular students is nothing but an act of discrimination and clever ploy of the university authorities to protect the interest of the careless an dishonest examiners at the cost of the interest of the students. Hence, the clause "This facility is, however, not available for special examination" appearing at para 12.0 (a) of the aforesaid Academic Regulation of BPUT is liable to be struck down by this Hon‟ble Court"
12. To such pleading of the petitioner, in paragraph-12 of the counter affidavit no specific reply has been given, save and except stating as follows:-
"12. That the averment made in para-11 of the writ petition that the university is restricting the facility of re-checking/re-totalling as provided in para 12.0 (a) of the aforesaid academic regulations of BPUT only to the regular students is nothing but an act of discrimination is totally incorrect.
Further, the Academic regulation of the university is being framed by the Academic Council to ensure that quality and standard of education is maintained and preserved. The regulation in force has been formulated by the Academic Council. The Academic Council in its collective wisdom never thought it prudent to abolish such breaks for weaker students. Its regulation permits a weak student to study at his/her own pace and complete the credit requirements for a degree in his/her comfortable speed. This is in line with the National and International practice. Further, BPUT Act, 2002 has also empowered Academic Council to frame, modify and re-visit to the regulation. The petitioner has to accept the mandatory requirements as prescribed by the Academic Council."
13. As it appears, as per clause-4.5 there is a restriction imposed i.e. "There shall not be any re-valuation for any subjects of the special examination" whereas in clause-12.0 (a) further restriction has been imposed i.e. "This 13 facility is however not available for special examinations". The facility regarding re-totaling/rechecking has not been made available for special examination. Thereby by invoking clause- 4.5, restriction is imposed with regard to re-valuation. Similarly, by invoking clause-12.0 (a) restriction is imposed for re-totaling/rechecking in respect of special examination. But there is no nexus of imposing such restriction in case of special examination has been indicated by the university. As it appears, there is arbitrary and unreasonable exercise of power of the university authorities putting a restriction under clause 4.5 with regard to re-evaluation and in clause-12.0 (a) with regard to re-totaling/rechecking so far as the special examination is concerned. By this the university authorities have created a discrimination among the regular examinees vis-à-vis candidates of special examination though all are prosecuting the same course of studies with same academic curriculum. While in case of regular examines facilities of re- totaling/rechecking is admissible that could not have been denied to the candidates of special examination so far as revaluation of marks is concerned under clause-4.5.
14. Mr. T. Rath, learned counsel for the petitioner, states that he does not claim for revaluation as there is a 14 prohibition under the regulation, but at the same time he lays emphasis on clause-12.0 (a) stating that putting a condition re-totaling/rechecking is not permissible in respect of special examination candidates itself amounted to hostile discrimination and that violates Article 14 of the Constitution.
15. Article 14 of the Constitution guarantees to every person equal treatment before law and extends protection of the laws in equal measures to all. "Equality before law" declares that every person is equal before law, no one can claim special privilege and that all classes are equal subject to the ordinary law of the land.
16. In D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, the apex Court held that Article 14 has a pervasive processual potency and versatile quality, equalitarian in its social and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness.
17. In Savitri Cairae v. U.P. Avas Ebam Vikas Parishad, AIR 2003 SC 2725, the apex Court held that equality clause in Article 14 is of wide import and it permits reasonable classification based on intelligible differentia having nexus with the object sought to be achieved. Equality before law is a dynamic concept having many facets. One facet-the 15 most commonly acknowledged is that there shall be no privileged person or class and that none shall be above law.
18. In Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34, the apex Court held that the concept of equality before law does not involve the idea of absolute equality amongst all, which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment.
19. In Menaka Gandhi v. Union of India, AIR 1978 SC 597, the apex Court held that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.
20. In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, the apex Court while settled the principle held that Article 14 strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. Therefore, where there is arbitrariness in State action, Article 14 springs to the action and judicial review strikes such action down. Every action of the executive authority must be subject to rule 16 of law and must be informed by reason and whatever be the activity of the public authority, it should meet the test of Article 14.
21. Applying the above analogy to the present context while putting a restriction under clause-12.0 (a) of the academic regulation, no reasons have been assigned why the candidates of special examination are to be treated differently from the regular students in the matter of re-
totaling/rechecking of marks. Therefore, clause-12.0 (a) to the extent of putting a restriction of re-totaling/rechecking of marks in a special examination is hit by the vice of the doctrine of ultra vires.
22. The doctrine of ultra vires refers to not only lack of power to do any act, but also to any situation like improper or unauthorized procedure, purpose or violation of the law of natural justice in exercising the power that is lawfully conferred on the authority concerned.
23. In Shri Sitaram Sugar Company Ltd. v.
Union of India, (1990) 3 SCC 223 : AIR 1990 SC 1277, the Apex Court dealt with "ultra vires" and held that a repository of power acts ultra vires either when it acts in excess of its power in the narrow sense or by acting in bad faith or for an 17 inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. Any repository of power, whether legislative, administrative or quasi-judicial, is open to challenge if it violates the provisions of the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.
24. Applying such doctrine to the present context, this Court is of the view that putting a restriction under clause-12.0 (a) to the extent that the facility of re- totaling/rechecking is not available for special examination amounted to arbitrary and unreasonable exercise of powers, thereby it is hit by Article 14 of the Constitution of India. Accordingly, to that extent the provision contained in clause- 12.0 (a) is declared as ultra vires.
25. In the aforesaid facts and circumstances, the provisions contained in clause-12.0 (a) to the extent the facilities of re-totaling/rechecking is not available for special examination being declared ultra vires, necessary corollary will be that the University authorities should make necessary re- totaling/rechecking of the answer sheets of the petitioner in 18 subject "Electro Magnetic Fields of Web" subject of his 4th Semester (Special/Back) Examination, 2012-13 on the basis of the recommendation made by Trident Academy of Technology, Bhubaneswar, an institution affiliated to the said University and declare the result of the petitioner within a period of three weeks hence.
26. With the above observation and direction, the writ petition is allowed. No order to costs.
.............................
Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 11th November, 2014/Jagdev