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Indranil D. Deshmukh vs Mumbai University Through Its … on 5 September, 2003

Bombay High Court
Indranil D. Deshmukh vs Mumbai University Through Its … on 5 September, 2003
Equivalent citations: 2004 (2) MhLj 236
Author: V Palshikar
Bench: V Palshikar, N Mhatre

JUDGMENT

V.G. Palshikar, J.

1. By this petition, the petitioner has prayed for a mandamus or a direction, directing the respondent, Bombay University, to send the answer book of the petitioners in the subject of “Intellectual Property Law” for moderation in accordance with the relevant Ordinance. The petitioner then has made a consequential prayer also.

2. Notice why the petition should not be admitted was issued by this court on 19th August 2003 and a reply has been filed on behalf of the respondent-University on 1st September 2003. Taking into consideration, the urgency of the matter and importance of the issues involved, the matter was taken up for final hearing with the consent of all the parties concerned. The University has by its reply disputed the maintainability of the petition under Article 226 of the Constitution of India, on the ground of existence of alternate remedy of approaching the in-house redressal machinery provided by the University either by approaching the Students Grievance Redressal Cell or the Board of Examinations. It has contended in reply that Ordinance No. 5046 provides for moderation and the answer book of the petitioner could not qualify for moderation as the Ordinance provides margin of 10% between the marks necessary for passing and scored by the student. Relying on this provision of law it was therefore contended by the learned counsel for the respondent-University that the petition is liable to be dismissed for availability of alternate remedy.

3. Mr. V. R. Manohar the learned counsel appearing on behalf of the petitioner, submitted that the existence of alternate remedy cannot be disputed but in a present case the alternate remedy of approaching under Ordinance No. 5046 cannot be availed of by the petitioner because he has secured 28 marks and 30 marks are necessary for approaching the Board of Examinations under Ordinance No. 5046. The contention of Mr. Manohar was that he has been deprived from availing of this remedy under Ordinance No. 5046 by the incorrect valuation of his answer book. The contention of Mr. Manohar in effect is that because of the error apparent on the face of record, committed by the valuer of the paper, the answer given by the petitioner to certain question has been valued as zero, which on the text book itself, according to him is incorrect. He could in no circumstances secure zero mark and whenever his valuation is correctly done it would result in his reaching the minimum required for the application of Ordinance No. 5046. Mr. Manohar relying on several judgment of the Supreme Court has stated that in the circumstances where valuation has been on the face of it wrongly done by the University, interference by a writ court is possible and permissible. Reliance was placed on a judgment of the Supreme Court in Kanpur University and Ors. v. Samir Gupta and Ors. . In this case the High Court of Allahabad was approached for revaluation of the papers in combined Pre-Medical Test held by the Medical Colleges in Uttar Pradesh. The Allahabad High Court accepting the petition, directed revaluation. The matter was therefore taken to the Supreme Court by the University and Ors. and rejecting the appeal by the University, the Supreme Court observed, dealing with the contention of the University that candidates to an examination should not be allowed to challenge the correctness of the answer given in the key answer as under:

“We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it would not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well versed in the particular subject would regard as correct.” Then in para 17, the Supreme Court has observed as under :–

“Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U. P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those text-books. Those test-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.”

4. The contention of Mr. Manohar relying on this observation, is that if reference is made to the approved text-book on the subject of “Intellectual Property Law”, it would be seen that the answer given by the petitioner is correct and the answer which would be found in the key answer is incorrect. Therefore we should interfere.

5. Reliance was then placed on a judgment of the Orissa High Court in Miss Uma Pattnaik and Ors. v. Convener, Selection Board-cum-Principal, SCB Medical College, Cuttack , where the Orissa High Court observed that the High Court cannot under Article 226 of the Constitution refuse to interfere with the decision of the examining body, if it is unreasonable, perverse and demonstrably very wrong.

6. There are several judgments of the Supreme Court, where it is clearly stated that where there is alternate remedy existing, this court will not interfere with the decision challenged, as efficacious alternate remedy is available. The contention of Mr. Manohar however is that undoubtedly is the law, but present is a case in which the petitioner has come before this court to point out that because of the basic errors committed by the valuer of the paper in “Intellectual Property Law” the petitioner is being deprived of the remedy, which is sought to be pleaded by the University as efficacious alternate remedy against the claim of the petitioner. The petitioner is unable to take that remedy because he has scored only 28 marks and the remedy requires minimum 30 marks. The contention of Mr. Manohar is that as the petitioner would have got 30 marks or more if the apparent errors are allowed to be proved in accordance with the observation of the Supreme Court in 1983 cited above. According to him, certain answers mentioned are incorrectly valued as they are apparent from the text book of “Intellectual Property Law” and all that the petitioner is seeking, this be done to find out whether the petitioner crosses the 30 marks limit, in spite of re-checking, if he does not cross that limit then he has no remedy but to accept the decision of the University.

7. The contention is therefore that because of the apparent errors committed in the valuation of the answer paper in “Intellectual Property Law”, certain questions in the answer book of the petitioner, have been not valued at all or wrongly valued. If that is reconsidered the petitioner will be able to cross the limit of 30 marks and for that purposes the petitioner is before this court. In effect the petitioner is before this court to direct the University to reconsider the valuation done in the paper of the petitioner to enable him to take recourse to the alternate remedy. The University has in its affidavit submitted that the petitioner could have chosen to approach either the Students Grievance Redressal Cell or the Board of Examinations and it then proceeds to point out that Ordinance No. 5046 is not available to the petitioner. In our opinion such valuations of objective nature can cause irreparable loss to a student and the petitioner’s may not be the lone case. Ordinance No. 237-A which existed earlier in the University provided a facility of revaluation and the same is repealed on 20th May 2002 and thereafter Ordinance No. 5046 is available for 100% moderation of the answer book in case of the candidates failing by 10% of marks of the aggregate of that paper. If aggregate is 100 and the passing requirement is 40, then the student would be entitled to moderation of 100% if he is secured less than 40 but 30 or more. At present there is no machinery where grievance can be made that due to error apparent on the face of record. If we look into several judgments cited by the learned counsel for the petitioner in this regard we will find that apart from the above quoted judgment, in the same contentions were upheld by another Bench of the Supreme Court and these observations were noted there also. Deciding a large bunch of petitions, yet another Division Bench of the Supreme Court, granted similar relief. In a decision reported in 7995 Supp (3) SCC 77 where it has been observed that where the Expert Committee constituted by the High Court with the consent of the parties, found as many as 8 key answers were wrong and interference was proper. In such circumstances, we are of the view that the Board of Education as established under Section 31 of the Maharashtra Universities Act 1994, need not be powerless to take up such matters. Section 32(1) provides as under :

“The Board of Examinations, shall ensure proper organization of examinations and tests of the University, including moderation, tabulation and the declaration of results.”

8. It is therefore the duty of the Board of Examinations to ensure proper organisation of examinations and conduct of tests including moderation, tabulation and declaration of results etc. It is therefore the statutory duty of the Board to see that the examinations are properly organised. This responsibility includes the responsibility to see that the key answers supplied or questions framed are strictly in accordance with the syllabus prescribed by the University. It would also be necessary for the Board to ensure that the moderation as contemplated by Section 32(1) is properly available and if the University or the State has chosen to keep a mark below which, the facility of 100% moderation could not be available, then it should provide for some reasonable machinery or do it itself to see that no student suffers for want of such machinery in approaching the University seeking 100% moderation under Ordinance 5046.

9. In any event such an application can be made to the Board under Section 32(1). It is for the University to evolve appropriate machinery for this purpose. We must point out in the present age of computerisation that errors of human and machines would increase with the advent and increase of computerisation. Adequate safeguards therefore ought to be provided to see that valuable career of students is not jeopardised for technical lapses. In the present extremely competitive world loss of one academic year may have the result of ruining a particular career, and it is not a case of the petitioner particularly or some similarly situated person. Such can be the grievance of a large section of students because of the computerisation of examinations, change in the system of valuations and revaluations, change in the manner of putting questions and giving only objective answer. We may take up an illustration to demonstrate what exactly is the problem which may arise in this age of computerisation. Take a case of examination paper in Law of Crimes. Question is as under :

Question : Punishment for the offence of murder is prescribed by the Indian Penal Code under :

a) Section 299 b) Section 300

c) Section 302 d) Section 304

The student is called upon to tick mark the correct out of a, b, c and d. The key answer provided for checking of this answer paper, however shows the answer to be Section 300 i.e. (b). Large number of students correctly answer the Section 302 to be the penalising section. But the key answer shows something else and all these students would be given zero mark because their answer does not tally with the answer found in key. But factually the answer given by the student is correct. The offence of murder is punishable under Section 302. The error has crept, in either due to machine or human error in the key answers showing 300 to be the correct section. In such eventuality a large number of students would loose marks. We will assume that the question is worth four marks. Then those students would loose four marks. By reason of such loss, all of them go below 30 marks, expected under Ordinance 5046. All of them are deprived of that remedy under that Ordinance because of the error which is apparent on record. To leave students in such a situation without remedy, would be grave injustice in the present day competitive world.

10. In our opinion, interest of justice would be met in the present case, if a direction is issued to the respondent-University and its Board of Examinations established under Section 31 of the Maharashtra Universities Act, 1994 to consider the application of the petitioner for re-examination of his answer book in the light of the contentions raised by the petitioner in that application. If the answer of the petitioner is found correct and the valuation is found wrong, then the petitioner can avail of Ordinance No. 5046 and seek 100% moderation. If he fails to satisfy the Board, there is no question of his approaching either the University under Ordinance 5046 or this court as the only grievance he has to make and should make is before the Board of Examination under Section 31. We therefore dispose of the petition with the following directions.

1)      The petitioner shall apply within three days of the receipt of this order to the Board of Examinations under Section 32(1) of the Maharashtra Universities Act, 1994 claiming re-examination of his paper in "Intellectual Properties Law."
 

2)      On the petitioner making such application, the Board shall within a week thereafter re-examine/re-value the said paper and in the event of it finding that the valuation was wrong, then make proper valuation and communicate that valuation to the petitioner.
 

3)      In the event of the petitioner getting 30 or more marks on the above exercise being taken up, he shall have recourse of ordinance No. 5046, which would be the final remedy for the petitioner.
 

4)      The answer book in sealed cover was submitted before us as directed by us by the order of this court. The same be returned to the University in the same sealed condition for further action.  
 

  The petition accordingly disposed off.  
 

 Parties to act on the authenticated copy of this order.

 

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