Madhya Pradesh High Court
Jyotshna Dubey vs Jiwaji University Thr. on 10 April, 2019
1
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3296/2017
Pragya Dubey Vs. Jiwaji University and others
Writ Petition No.3185/2017
Jyotshna Dubey Vs. Jiwaji University and others
Gwalior, Dated :10/04/2019
Shri Prakash Braru, Advocate for petitioners in both writ
petitions.
Shri Deepak Khot, Advocate for respondents no.1 and 2 in
both writ petitions.
Shri P.S. Bhadoriya, Advocate for respondent no.3 in both writ petitions.
This petition shall dispose of Writ Petition No.3296/2017 filed by petitioner Pragya Dubey and Writ Petition No.3185/2017 filed by petitioner Jyotshna Dubey. For the sake of convenience, the facts of Writ Petition No.3185/2017 shall be considered.
2. These petitions under Article 226 of the Constitution of India have been filed seeking the following reliefs:- W.P. No.3185/2017
"A. That, the respondents may kindly be directed to produce the original copy of the answer sheet before this Court or in alternate not to destroy the same.
B. That, the respondents may kindly be further directed to revaluate the answer sheet of the General Surgery paper through expert valuer of social science or be further directed to issue revised mark sheet.
C. That, the respondents may kindly be further directed to pay the heavy cost towards the conduct of the Board affecting the merit of the meritorious 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others candidate by valuating the answer sheet without application of mind in the interest of justice. D. That, any other relief, which is suitable in the facts and circumstances of the case in favour of the petitioner may also be granted in the interest of justice."W.P. No.3296/2017
"A. That, the respondents may kindly be directed to produce the original copy of the answer sheet before this Court or in alternate not to destroy the same.
B. That, the respondents may kindly be further directed to revaluate the answer sheet of the General Surgery paper through expert valuer of social science or be further directed to issue revised mark sheet with pass.
C. That, the respondents may kindly be further directed to pay the heavy cost towards the conduct of the Board affecting the merit of the meritorious candidate by valuating the answer sheet without application of mind in the interest of justice. D. That, any other relief, which is suitable in the facts and circumstances of the case in favour of the petitioner may also be granted in the interest of justice."
3. It is the case of the petitioner that in the month of June, 2016 the petitioner had appeared in the examination of BDS, 3 rd Semester as a regular student of Maharana Pratap College of Dentistry & Research Center, Gwalior. The college is affiliated with Jiwaji University, Gwalior. The examination of 3 rd Semester of BDS was conducted in the month of June, 2016 and the result of BDS was 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others declared on 31/12/2016 and it was uploaded on the website of the University and according to the said result, the petitioner was declared pass. As per the mark-sheet uploaded on the website the petitioner had scored 35 marks in the theoretical examination of General Surgery. Thereafter, the petitioner tried to obtain the mark- sheet from the University as well as the College, but the same was not supplied. After great persuasion the college informed that the mark-sheet shall be provided by the University and, therefore, the petitioner repeatedly visited the University, but the mark-sheet was not provided. Later on, it was found that the University has changed the mark-sheet and another mark-sheet was uploaded after removing the previous loaded mark-sheet and in the subsequent mark-sheet, the petitioner was declared fail. According to the subsequent second mark-sheet, the petitioner was given 23 marks in the theory of General Surgery.
4. It is submitted by the counsel for the petitioners that as per the first mark-sheet uploaded on the website, the petitioner had secured total 55 marks in General Surgery, whereas in the subsequently uploaded mark-sheet the petitioner was shown to have secured only 43 marks in General Surgery and, therefore, she was declared fail. It 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others is the case of the petitioner that without taking the petitioner into confidence and without disclosing the reason for revaluation, the University on its own has revised the mark-sheet of the petitioner for no good reason. Thereafter, the petitioner filed an application under the Right to Information Act for copy of the answer-sheet, but the same was not provided and at last, the petitioner filed an appeal and only thereafter, she got copy of the answer-sheet. The copy of the answer-sheet has been annexed alongwith this petition as Annexure P/4. From the first page of the answer-sheet, it is clear that originally the examiner/valuer had awarded 19 marks for A Section and 16 marks for B Section and accordingly, 35 marks were awarded for theory, whereas after the review, 23+14=37 marks have been awarded. Thus, it is the contention of the petitioner that as the Valuer after review of the answer-sheet has awarded more marks for theory, therefore, the subsequent mark-sheet uploaded by the University showing only 23 marks for theory is incorrect, whereas according to the reviewed marks, it appears that the petitioner had got 37 marks for theory. Accordingly, the petition has been filed for the above- mentioned reliefs.
5. The respondents have filed the return and submitted that a 5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others special group of students had made a complaint against the Examiner/Valuer in respect of six answer-sheets and accordingly, the Vice Chancellor constituted a Result Committee for review of the disputed answer-sheets. Accordingly, on 3/1/2017 the meeting of the Committee took place and it was decided that the disputed answer- sheets should be reviewed and in case if any illegality is found, then the Examiner/Valuer should be blacklisted. Accordingly, on 12/1/2017 another meeting of the Committee took place and it was found that after the review/revaluation, it appears that the Examiner/Valuer had not valued the answer-sheets properly and accordingly, a recommendation was made for blacklisting the Examiner/Valuer. Accordingly, it was decided that the result of six students be changed in accordance with the marks given after revaluation. It is submitted by the counsel for the respondents that a decision was taken on 14/2/2017 to the effect that on the demand of a group of students, review was got done and that in review valuation, difference of more than 10% of marks was found and accordingly, the answer-sheets were sent to the third Examiner/Valuer and thus, the University is in possession of the marks awarded by all the three Examiners/Valuers and accordingly, it was decided that the fresh 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others result be declared on the basis of the average marks obtained by the students and thus, it is submitted that fresh result has been uploaded. It is further submitted by the counsel for the respondents that under Ordinance No.5 Clause 3 the Chancellor has a power to constitute a Result Committee of three members. The Chancellor had delegated his powers to the Vice Chancellor and accordingly, the Vice Chancellor had constituted the Result Committee of three members. Thus, it is submitted that the Result Committee was empowered to revise the result before declaration and in special cases, after declaration of results and thus, where the results have been revised after the declaration of the same, it cannot be said that the same was without any jurisdiction. It is further submitted that on the first page of answer-sheet the marks got in theoretical paper and practical paper are mentioned and the petitioner has wrongly assumed that they are the marks of two different sections of theoretical paper.
6. Heard learned counsel for the parties.
7. Ordinance 11 (2) (v) reads as under:-
"(v) To exercise such other powers as the Academic council/Standing Committee of Academic Council may delegate to it from time to time provided that the Results Committee shall have the powers to scrutinize and revise the results before declaration and in special cases after 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others declarations of results."
8. Thus, it is clear that after the results are declared, the Results Committee can revise the result only in special cases.
9. In the present case, according to the respondents, a special group of students had made complaint in respect of six answer- sheets. The counsel for the respondents fairly conceded that to whom the answer-sheets would be sent is a confidential matter and is never disclosed to anybody. The counsel for the respondents has also not disclosed about the details of the special group of students. It is nowhere mentioned that how that special group of students came to know that which answer-sheets were evaluated by which Examiner/Valuer. Even there is nothing on record to show that how the special group of students came to know that a particular Examiner/Valuer has committed some illegality in respect of six particular answer-sheets only. No enquiry was done by the University as to how the said special group of students came to know about the confidential information. From the note-sheets which have been placed on record, it appears that the answer-sheets were re-valuated twice. Thus, the University was in possession of three sets of marks awarded by three different valuers, however, the respondents have 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others not placed the tabulation-sheet of the third Examiner/Valuer. The copy of the answer-sheet which has been filed by the petitioner as Annexure P/4, indicates that only the marks awarded in review valuation have been mentioned, but the marks awarded by the third Examiner/Valuer are not on record. The respondents have also not clarified as to why they have not placed the tabulation-sheet of third Examiner/Valuer on record, although it is fairly conceded by the counsel for the respondents that the tabulation-sheet of review Examiner/Valuer as well as of revaluation Examiner/Valuer are available with the University. Thus, under the facts and circumstances of the case, this Court is of the considered opinion that the University has failed to make out a special case where the results can be revised after they are declared. However, there is an another difficulty in disposal of this case. The petitioner has merely prayed for revaluation of the answer-sheets and has not prayed for quashment of the subsequent mark-sheet.
10. It is submitted by the counsel for the petitioner that since a general prayer has also been made by the petitioner that "any other relief which is suitable in the facts and circumstances of the case in favour of the petitioner may also be granted in the interest of justice", 9 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others therefore, the subsequent mark-sheet uploaded by the University may be quashed in the light of the general relief prayed by the petitioner.
11. Heard learned counsel for the parties.
12. This Court while exercising the power under Article 226 of the Constitution of India cannot grant a relief, which has not been prayed by the petitioner. The relief for quashment of the second mark-sheet cannot be said to be inbuilt in the relief of revaluation. Under these circumstances, even where this Court has found that the provisions of Ordinance No.5 (2) (v) are not applicable, but still this Court cannot quash the second mark-sheet uploaded by the University.
13. At this stage, it is submitted by the counsel for the petitioner that since there was a complaint by a special group of students in respect of six answer-sheets only and the University has failed to show that as to how this confidential information was forwarded to the said special group of students, therefore, it appears that the subsequent Examiners/Valuers must have deliberately given less marks in order to avoid any controversy. Thus, it is clear that the subsequent revaluation of marks either by the review Examiner/Re- valuer or third Examiner/Valuer cannot be said to be without any pressure or coercion. Under these circumstances, the petitioner has a 10 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others valid and bonafide apprehension that the valuation done by the review Examiner/Valuer as well as third Examiner/Valuer is not proper and, therefore, this Court may direct for revaluation of the answer-sheets of the petitioner by any expert appointed by the University and the marks, which would be awarded by the said Examiner/Re-valuer would be acceptable to the petitioner.
14. The submission made by the counsel for the petitioner is opposed by the counsel for the respondents. It is submitted by the counsel for the respondents that in absence of any provision for revaluation, the prayer for revaluation cannot be granted. To buttress his contentions the counsel for the respondents has relied upon the judgments of the Supreme Court in the cases of Buddhi Nath Chaudhary and others Vs. Abahi Kumar and others reported in (2001) 3 SCC 328, H.P. Public Service Commission Vs. Mukesh Thakur reported in (2010) 6 SCC 759, Neha Indurkhya Vs. M.P. Board of Secondary Education, Bhopal reported in 2003 (3) MPLJ 368, Pranshu Indurkhya Vs. State of M.P. reported in 2000 MPHT 95, State of M.P. Vs. Ku. Taruni Gupta & Anr (W.A. No.892/2013), M.P. Board of Secondary Education & Ors Vs. Ku. Vineeta Rupra reported in 1998 (1) MPLJ 595 (DB), Ashutosh 11 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others Kumar Mishra Vs. M.P. Board of Secondary Education, Bhopal reported in 2002 MPHT 237, Neha Indurkhya Vs. M.P. Board of Secondary Education, Bhopal reported in 2003 (3) MPLJ 368 (DB) and Ran Vijay Singh and others Vs. State of U.P. and others reported in AIR 2018 SCW 52.
15. Heard learned counsel for the parties on the question of revaluation.
16. It is not the case where the student has prayed for revaluation of his/her answer-sheet on the basis of improper or incorrect valuation. The petitioner was satisfied with her original result forming part of the original mark-sheet and thus, a situation of confusion has been created by the University itself. It is also clear that before revising the result of the petitioner neither any notice was issued to the petitioner nor any opportunity of hearing was given to her, whereas her result has been revised on certain allegations made by a special group of students. Thus, under these circumstances, this Court is of the considered opinion that a situation has been created by the University, which warrants a direction from this Court for revaluation of the answer-sheets of the petitioner, so as to remove any doubt in the mind of the petitioner. Further, if the second mark-sheet 12 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others is allowed to remain in force, then it would be a mark-sheet issued after revision of the declared result on the basis of some stigmatic allegations. The Supreme Court in the case of High Court of Tripura Through The Registrar General Vs. Tirtha Sarathi Mukherjee & Ors. by order dated 6/2/2019 passed in Civil Appeal No.1264/2019 has held as under:-
"18. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis. The first question which we would have to answer is whether despite the absence of any provision, are the courts completely denuded of power in the exercise of the jurisdiction under Article 226 of the Constitution to direct revaluation? It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluation.
19. The question however arises whether even if there is no legal right to demand revaluation as of right could there arise circumstances which leaves the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be 13 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.
20. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? It is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional."
(Underline supplied)
17. Under these circumstances, as an exceptional and rare situation has been created by the University itself, therefore, this Court is of the considered opinion that the answer-sheet of the petitioner should be revalued so that the fresh mark-sheet can be issued on the basis of the marks awarded by the newly appointed Examiner/Valuer. As the petitioner has already expressed her willingness that the University may get the answer-sheet revalued by 14 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.3296/2017 Pragya Dubey Vs. Jiwaji University and others Writ Petition No.3185/2017 Jyotshna Dubey Vs. Jiwaji University and others any Examiner/Valuer and thereafter, it is also conceded by the counsel for the respondents that the University shall get the answer- sheets revalued by any renowned Examiner/Valuer, as the original answer-sheets of the petitioner, are still available with the University, accordingly, it is directed that the University shall send the answer- sheets of the petitioner to any renowned Examiner/Valuer for fresh revaluation and to declare the result of the petitioner afresh on the basis of the marks awarded by the newly appointed Examiner/Valuer.
18. Let the entire exercise including declaration of result be completed by the University within a period of one month from today.
19. With aforesaid directions, the petition is finally disposed of.
(G.S. Ahluwalia)
Arun* Judge
ARUN KUMAR MISHRA
2019.04.12 18:37:10
+05'30'