Calcutta High Court (Appellete Side)
Dr. Tirthankar Sarkar vs The State Of West Bengal & Ors on 11 March, 2016
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
W.P. No.20357 (W) of 2015
Dr. Tirthankar Sarkar
versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Kanailal Samanta,
Mr. Pranab Halder,
Mr. Swarvanu Saha.
For the State : Mr. Anant Kumar Shaw.
For the Respondent
Nos 2 to 7. : Mr. Siddhartha Banerjee,
Mr. Debari Nandan Maity,
Mr. Aditya Kumar Dey.
Judgment On : 11th March, 2016.
Tapabrata Chakraborty, J.
The instant writ application has been preferred, inter alia, praying for a direction upon the West Bengal University of Health Science (hereinafter referred to as the said university) to review the theoretical answer scripts of M.D. Biochemistry Examination held in May - June, 2015.
Mr. Samanta, learned advocate appearing for the petitioner submits that the petitioner availed admission in Medical College, Kolkata in the discipline of M.D. Biochemistry. Upon conclusion of the course, the petitioner participated in the Post Graduate Degree Examination, 2015 (hereinafter referred to as the said examination) conducted by the said university. Result was declared on 26th June, 2015. The petitioner was declared to have failed in the said examination for a deficit of 2 marks in the aggregate though he passed in the respective theoretical papers. Aggrieved thereby, the petitioner made an application for review of the theoretical papers on 3rd July, 2015 and the said university accepted such application by collecting the requisite fees towards review on 6th July, 2015 but the review result was not communicated and in the midst thereof, it was intimated by a memorandum dated 15th July, 2015 that the supplementary examination of the candidates, who have failed in the said examination of 2015, would be held on 8th September, 2015. The Pro-Vice-Chancellor of the said university by a memorandum dated 10th August, 2015 intimated the Principal of Medical College the results upon scrutiny of the papers and in respect of the petitioner there was no change in marks.
Records reveal that by an order dated 31st August, 2015 this Court directed the petitioner to appear in the supplementary examination without prejudice to his rights and contentions in the writ application. Pursuant to the said order the petitioner participated in the said examination and emerged to be successful and a mark-sheet pertaining to M.D. Biochemistry examination (supplementary) held on September, 2015 was issued.
Mr. Samanta submits that the petitioner made an application for review of the theoretical answer scripts and such application for review was accepted by the university authorities upon collection of review fee of Rs.1,000/-. Having accepted the review application along with the requisite fees the respondents were under an obligation to review / re-evaluate the answer scripts of the petitioner but surprisingly they conducted scrutiny of the papers and intimated that there had been no change in the marks. Such process as adopted by the university is fallacious.
According to Mr. Samanta, the petitioner emerged to be successful upon participating in the supplementary examination held within a month after declaration of the results upon scrutiny and from such sequence it is explicit that the petitioner is meritorious. Review means re-evaluation of the papers whereas scrutiny is restricted to computation of marks. The ambit of review / re-evaluation is much wider than the ambit of scrutiny and the possibility / likelihood of making up the deficit upon review would be more compared to mere scrutiny of papers.
Per contra, Mr. Banerjee, learned advocate appearing for the respondent nos.2 to 7 submits that there was no obligation on the part of the said university to review the answer scripts of the petitioner and in support of such contention he places reliance upon a resolution dated 25th September, 2007 adopted by the Academic Council of the said university and a resolution dated 27th September, 2007 by which the Executive Council approved the decision of the Academic Council. The resolution of the Executive Council runs as follows :
"Notwithstanding anything contained in any Regulation of Examination of this University the system of Review of examined answer scripts will henceforth be dispensed with. However a student may apply to the University through his head of institution for scrutiny of his paper. In case of scrutiny only totalling will be scrutinized and if any answer by the concerned student remains unassessed, the same will be assessed by the proper authority.
However the concerned student will have to apply within 30 days from the date of publication of result and with a scrutiny fee of Rs.500.00 per paper. In case the mark increases the student will be given a fresh mark-sheet".
Perusal of the said resolution reveals that it begins with a clause to the effect that "notwithstanding anything contained in any Regulation of Examination of this University" and that the prevailing system of review was dispensed with and the provision towards review was substituted by a provision towards scrutiny.
Drawing the attention of this Court to the provisions of Sections 14 and 15 of the West Bengal University of Health Sciences Act, 2002 ( hereinafter referred to as the said Act), Mr. Banerjee submits that the Executive Council is the principle executive body of the university and the Academic Council is the principle academic body of the university and that jurisdiction stands conferred upon the said authorities to take appropriate decision in academic matters including the authority to set the standard of different examinations.
He further submits that fees were accepted for scrutiny of the petitioner's answer scripts and not for review and the tick mark given inadvertently against the serial for "review fee" did not create any right in favour of the petitioner to have the answer scripts reviewed / re-evaluated. On the basis of such inadvertence and mistake on the part of the issuing authority, the university authorities cannot be compelled to review the answer scripts of the petitioner, moreso when, there is no provision towards review of the answer scripts and no obligation is cast upon the university authorities to review the petitioner's answer scripts.
In reply, Mr. Samanta submits that a perusal of the provisions of Sections 13 and 18 of the said Act would reveal that the General Council is the supreme authority of the university and the said Council has been conferred the jurisdiction to approve, modify or reject any regulation made by the Executive Council but nothing has been brought on record by the respondents to show that the purported resolutions dated 25th September, 2007 and 27th September, 2007 adopted by the Academic Council and the Executive Council respectively have been approved by the General Council. It has also not been disclosed as to whether the provisions of the said Act have been strictly followed in conducting the meetings of the Academic Council and the Executive Council on 25th September, 2007 and 27th September, 2007 respectively.
In support of his arguments, Mr. Samanta has placed reliance upon a judgment delivered in the case of Dr. Mrinmoy Bhuyan -vs- The State of Assam & Others, reported in AIR 2015 Guahati 22.
I have heard the learned advocates appearing for the respective parties and I have considered the material on record.
The first argument of Mr. Samanta to the effect that on the basis of the receipt issued on behalf of the university bearing a tick mark over serial no.3 towards "review fee" confers a legal right upon the petitioner to have his papers reviewed and re- evaluated, is not acceptable to this Court. A perusal of the said receipt reveals that the same is the payee's self-copy issued by the Central Bank of India (Salt lake Branch) and that the same is a challan for deposit in university fund. The said receipt / challan, in my opinion, cannot be used as an instrument to compel the said university to conduct review.
The next argument of Mr. Samanta is that no regulation has been framed under the said Act as regards review or scrutiny of answer scripts of candidates and in the absence of such regulation it is incumbent upon the university to review the answer scripts of the petitioner upon acceptance of fees towards such review. Such argument of Mr. Samanta is also not acceptable to this Court since there exists no regulation permitting review of the answer scripts and the resolution / decision of the Academic Council as approved by the Executive Council begins with a non obstante clause to the effect that "notwithstanding anything contained in any Regulation of Examination of this University".
It is explicit from the resolution adopted by the Academic Council and as approved by the Executive Council that the system of review has been dispensed with and the university authorities after such decision can only conduct scrutiny of the answer scripts of the candidates and that the said decisions are binding upon the university as the authorities which took such decision are competent to set standards of examination. There is also no allegation of discrimination or unreasonability and the university authorities have strictly followed the decisions as adopted in the meetings of the Academic Council and the Executive Council as held on 25th September, 2007 and 27th September, 2007 and it would also be explicit from the resolution dated 25th September, 2007 that the same was duly communicated to the petitioner's college. The judgment delivered in the case of Dr. Mrinmoy Bhuyan (Supra), as relied upon by the petitioner is distinguishable on facts as in the instant case there exists a specific provision towards scrutiny of the answer scripts.
It is not for the Court to examine the merits and the demerits of introduction of the provisions towards scrutiny upon substitution of the provision towards review. Once a procedure is prescribed in the form of an instruction or a resolution, the same should be followed. As per the resolutions adopted by the competent authorities, a student has the right to demand scrutiny and not review. So long as the body entrusted with the task of framing the rules, resolutions and regulations acts within the scope of authority, the Court should not concern itself with the wisdom or efficaciousness of such rules or regulations. A provision barring review of the answer books and restricting the remedy of the candidate only to scrutiny is valid and binding on the examinee.
Applying such proposition of law to the facts of the instant case, I am of the opinion that no legally protected right of the petitioner, which can be judicially enforced, has been infringed warranting interference of this Court.
The writ application is, accordingly, dismissed.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.)