{"id":134058,"date":"1984-07-17T00:00:00","date_gmt":"1984-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharashtra-state-board-of-vs-paritosh-bhupesh-kumar-sheth-etc-on-17-july-1984"},"modified":"2017-04-07T15:08:58","modified_gmt":"2017-04-07T09:38:58","slug":"maharashtra-state-board-of-vs-paritosh-bhupesh-kumar-sheth-etc-on-17-july-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharashtra-state-board-of-vs-paritosh-bhupesh-kumar-sheth-etc-on-17-july-1984","title":{"rendered":"Maharashtra State Board Of … vs Paritosh Bhupesh Kumar Sheth Etc on 17 July, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Maharashtra State Board Of … vs Paritosh Bhupesh Kumar Sheth Etc on 17 July, 1984<\/div>\n
Equivalent citations: 1984 AIR 1543, \t\t 1985 SCR (1)\t 29<\/div>\n
Author: V B Eradi<\/div>\n
Bench: Eradi, V. Balakrishna (J)<\/div>\n
           PETITIONER:\nMAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARYEDU\n\n\tVs.\n\nRESPONDENT:\nPARITOSH BHUPESH KUMAR SHETH ETC.\n\nDATE OF JUDGMENT17\/07\/1984\n\nBENCH:\nERADI, V. BALAKRISHNA (J)\nBENCH:\nERADI, V. BALAKRISHNA (J)\nDESAI, D.A.\n\nCITATION:\n 1984 AIR 1543\t\t  1985 SCR  (1)\t 29\n 1984 SCC  (4)\t27\t  1984 SCALE  (2)30\n CITATOR INFO :\n F\t    1984 SC1584\t (1)\n R\t    1992 SC   1\t (63)\n\n\nACT:\n     Education\tlaws-Right  to\tdemand\tby  an\texaminee  an\ninspection, verification  and revaluation  of answer  books-\nConstitutional\tvalidity   of  Regulation   104(3)  of\t the\nMaharashtra Secondary  and Higher Secondary Education Boards\nRegulations,  1977   negativing\t such\trights-Principle  of\nnatural justice\t under education  laws,\t explained-Delegated\nlegislation  and   Court  power\t  to   interpret-Maharashtra\nSecondary and  Higher Secondary Boards Act, 1965 Sections 19\nand 36-Rules  of interpretation\t of Rules  and\tRegulations,\nexplained.\n\n\n\nHEADNOTE:\n     In exercise  of the  powers conferred  by Section 36 of\nthe Maharashtra\t Secondary and\tHigher Secondary Boards Act,\n1965, the  State Board\thas framed the Maharashtra Secondary\nand Higher  Secondary Education\t Boards'  Regulations  1977.\nThese regulations  were sanctioned  by the  State Government\nunder sub-section  3 of\t section 36  on 11th  July, 1977 and\ncame into  force on  15th June, 1977. These regulations were\napplied to  the Secondary School Certificate examination and\nHigher Secondary  Certificate examination  held in  October,\n1977 and thereafter Regulation 104 refers to verification of\nmarks obtained\tby a  candidate in  a  subject.\t Clause\t (1)\nthereof restricts  verification to  checking whether all the\nanswers have  been examined  and  that\tthere  has  been  no\nmistake in  the totalling of marks for each question in that\nsubject and  transferring marks correctly on the first cover\npage of the answer book and whether the supplements attached\nto the\tanswer book  mentioned by the candidate are in tact.\nClause\t(1)   also  speaks   of\t revaluation  and  prohibits\nrevaluation of\tthe answer  books or supplements. Clause (3)\nof the\tsaid  regulation  also\tspeaks\tof  right  to  claim\nrevaluation by\tan  examinee  and  is  to  the\teffect:\t \"no\ncandidate shall\t claim, or be entitled to revaluation of his\nanswer or  disclosure or  inspection of\t the answer books or\nother documents as these are treated by the Divisional Board\nas most confidential.\n     A number  of unsuccessful\tand disappointed  candidates\nwho had\n30\nappeared for  the Higher Secondary Certificate and Secondary\nSchool Certificate  public  examinations  conducted  by\t the\nDivisional Boards  functioning\tunder  the  supervision\t and\ncontrol of  the Maharashtra  State Board  of  Secondary\t and\nHigher\tSecondary   Education  filed  a\t batch\tof  39\tWrit\nPetitions in  the  High\t Court\tof  Bombay  challenging\t the\nvalidity of  Clauses (1)  and (3)  of regulation  104 of the\nMaharashtra Secondary  and Higher Secondary Education Boards\nRegulations 1977 and seeking the issuance of writs directing\nthe Board  to allow  them disclosure and inspection of their\nanswer books  in the public examination, the results whereof\nhad already  been published  and to conduct a revaluation of\nsuch of\t the answer  papers as\tthe petitioners\t may  demand\nafter the inspection.\n     The writ petitioners had based their challenges against\nthe validity  of clauses  (1) and  (3) of  Regulation 104 on\nthree main  grounds:-(1) The Impugned clauses were violative\nof the\tprinciples of  natural justice; (2) Both clauses (1)\nand (3)\t were ultra  vires and\tvoid on\t the ground of their\nbeing in  excess of  the regulation making, powers conferred\non the\tBoard by Section 36 of the Act; and (3) The impugned\nprovisions contained  in clauses  (1) and  (3)\twere  highly\nunreasonable and  since the  regulations framed by the Board\nare in\tthe nature of bye-laws. they are liable to be struck\ndown on the ground of unreasonableness\n     The High  Court divided  the Writ\tPetitions  into\t two\ngroups; the  first group consisting of cases where the right\nof inspection  alone was claimed and second group comprising\nof cases  where the  petitioners had  claimed also a further\nright to demand a revaluation of the answer papers. The High\nCourt allowed the petitions by two separate judgments one in\nrespect of  the first  group  holding  that  clause  (3)  of\nregulation 104\twhich lays  down that  no candidate shall be\nentitled to  disclosure or inspection of the answer books or\nother  documents   as  these  are  to  be  treated  as\tmost\nconfidential is\t ultra vires  on the  ground of its being in\nexcess of  the regulation  making power\t of the Board and by\nanother judgment  in  the  second  group  holding  that\t the\nprovisions contained in clause (1) of regulation 104 that no\nrevaluation of the answer books or supplements shall be done\nis ultra  vires the  regulation making\tpower  conferred  by\nsection 36 and is also illegal and void on the ground of its\nbeing manifestly  unreasonable. Aggrieved by these judgments\nrendered in  the two  groups of\t cases the  appellant  Board\npreferred these appeals after obtaining Special Leave of the\nCourt.\n     Allowing the appeals, the Court\n^\n     HELD:  1:1.   Regulation  104(3)\tof  the\t Maharashtra\nSecondary and\n31\nHigher\tSecondary  Board  Regulations  1977  is\t valid.\t The\nprocess\t of   evaluation  of  answer  papers  or  subsequent\nverification of\t marks under  clause (3)  of regulation\t 104\ndoes not  attract the principles of natural justice since no\ndecision making\t process which\tbrings about  adverse  civil\nconsequences to the examinees is involved. Non-disclosure or\ndisallowance of\t the right of inspection of the answer books\nas well\t as denial  of the right to ask for a revaluation to\nexaminees who are dissatisfied with the results do not visit\nthem with  adverse civil consequences. There is no substance\nin the contention that every adverse verification involves a\ncondemnation of the examination behind their back and hence.\nconstitutes a  clear  violation\t of  principles\t of  natural\njustice.[62E, 41D-E, F-G]\n     1:2.  The\tprinciples  of\tnatural\t justice  cannot  be\nextended beyond reasonable and rational limits and cannot be\ncarried into  such absurd  lengths as  to make\tit necessary\nthat candidates\t who have  taken a public examination should\nbe allowed  to participate  in the  process of evaluation of\ntheir performances  or to  verify  the\tcorrectness  of\t the\nevaluation made by the examiners by themselves conducting an\ninspection of the answer books and determining whether there\nhas been  a proper  and fair valuation of the answers by the\nexaminers. [41H; 42A]\n     Union of  India v.\t M.L. Kapur,<\/a>  [1974] 1\tS.C.R.\t797;\nreferred to.\n     2:1.  The\t question  whether  a  particular  piece  of\ndelegated legislation  whether a rule or regulation or other\ntype of\t statutory instrument-is  in excess  of the power of\nsubordinate legislation\t conferred on the delegate has to be\ndetermined with\t reference only\t to the\t specific provisions\ncontained in  the relevant  statute conferring\tthe power to\nmake the  rule, regulation  etc. and  also  the\t object\t and\npurpose of  the Act  as can  be gathered  from\tthe  various\nprovisions of the enactment. [43 A-B]\n     2:2. The  Court cannot  substitute its  own opinion for\nthat of the legislature or its delegate as to what principle\nor policy  would best  serve the  object and purposes of the\nAct and\t it cannot  sit in  judgment  over  the\t wisdom\t and\neffectiveness or  otherwise of\tthe policy  laid down by the\nregulation making  body and declare a regulation to be ultra\nvires merely  on the  ground that,  in the view of the Court\nthe impugned  provisions will  not help\t to serve the object\nand purpose  of the  Act. So long as the body entrusted with\nthe task of framing the rules or regulations acts within the\nscope of  the authority\t conferred on  it, in the sense that\nthe rules  or regulations  made by  it have a rational nexus\nwith the object and purpose of the statute, the Court should\nnot concern  itself with  the wisdom  or efficatiousness  of\nsuch rules  or regulations.  It is  exclusively\t within\t the\nprovince of the legislature and its delegate to determine as\na matter  of policy,  how the  provisions of the statute can\nbest be implemented and what measures,\n32\nsubstantive  as\t  well\tas   procedural\t would\thave  to  be\nincorporated in the rules or regulations for the efficacious\nachievement of\tthe objects  and purposes  of the Act. It is\nnot for\t the Court to examine the merits or demerits of such\na policy  because its  scrutiny has  to be  limited  to\t the\nquestion as  to whether the impugned regulations fall within\nthe scope  of the  regulation making  power conferred on the\ndelegate by the statute. [43 C-F]\n     3:1. The  view taken  by the High Court that clause (3)\nof the\tregulation 104\tis ultra  vires on the ground of its\nbeing in  excess of the regulation making power conferred on\nthe Board is not correct. [45-B]\n     3.2. Any drawbacks in the policy incorporated in a rule\nor regulation  will not\t render it ultra vires and the Court\ncannot strike  it down\ton the ground, that, in its opinion,\nit is  not a wise or prudent, but is even a foolish one, and\nthat it\t will not really serve to effectuate the purposes of\nthe Act.  The legislature  and its  delegates are  the\tsole\nrepositories of\t the power  to decide  what policy should be\npursued in  relation to matters covered by the Act and there\nis no  scope  for  interference\t by  the  Court\t unless\t the\nparticular provision  impugned before  it  can\tbe  said  to\nsuffer from  any legal\tinfirmity, in the sense of its being\nwholly beyond  the scope  of the  regulation making power or\nits being  inconsistent with  any of  the provisions  of the\nparent enactment  or in\t violation of any of the limitations\nimposed by the Constitution. None of these vitiating factors\nare shown to exist in the present case.\t [46E-F]\n     3:3. The  provisions of  sections 19  and 36 of the Act\nmake it\t clear that  a duty  is cast  on the  State Board to\nformulate its  policy as  to how  the examinations are to be\nconducted, how\tthe valuation  of the  performances  of\t the\ncandidates is to be made and by what procedure there results\nare to\tbe finalised,  compiled and released it is perfectly\nwithin the competence of the Board, rather, it was its plain\nduty, to  apply its  mind and  decide as  a matter of policy\nrelating to  the conduct  of the  examination as  to whether\ndisclosure and\tinspection of  the answer  books  should  be\nallowed to  the\t candidates,  whether  and  to\twhat  extent\nverification of\t the result  should be\tpermitted after\t the\nresults have  been announced  and whether any right to claim\nrevaluation of\tthe answer  book  should  be  recognised  or\nprovided for.  All these  are undoubtedly matters which have\nan intimate  nexus with\t the objects  and  purposes  of\t the\nenactment and  are,  therefore,\t within\t the  ambit  of\t the\ngeneral power to make regulations conferred by sub-section 1\nof section 36, and also within the scope of clauses (c), (f)\nand (g)\t of sub-section 2 of the said section. [44F-H, 45 A-\nB]\n     4:1. Clause  (3) or Regulation 104 is not in the nature\nof a bye-law and it is not an unreasonable provision. [46 H]\n33\n     4:2. While\t the  power  to\t make  regulations  for\t the\npurpose of  carrying into  effect the provisions of the Act,\nis conferred  on the Board by section 36, section 38 confers\na distinct  power of making bye-laws. The legislature, while\nenacting sections  36 and  38 must  be assumed\tto have been\nfully aware  of the niceties of the legal position governing\nthe distinction between rules\/regulations properly so called\nand bye-laws.  When the\t statute contains a clear indication\nthat the  distinct regulation  making power  conferred under\nsection 36  was not  intended as  a power  merely  to  frame\nbyelaws, it  is not open to the Court to ignore the same and\ntreat the regulations made under section 36 as mere bye-laws\nin order to bring them within the scope of justifiability by\napplying the test of reasonableness. [47 E-G]\n     4.3. Regulations made by the Board under section 36 are\nin the\tnature of  statutory rules  and they  have the\tfull\nrigour and  force of  sub-ordinate  legislation\t made  by  a\ndelegate duly  empowered in  that behalf by the legislature.\n[49 D-E]\n     Sophy  Kelly   v.\tThe   State,  69  Bombay,  L.R.\t 186\noverruled.\n     5:1. The  provisions contained in a statutory enactment\nor in  rules\/regulations framed\t thereunder have  to  be  so\nconstrued as  to be  in harmony\t with each  other and  where\nunder a\t specific section  or rule  a particular subject has\nreceived special  treatment,  such  special  provision\twill\nexclude the  applicability of  any general  provision  which\nmight otherwise cover the said topic. [52 B-C]\n     5.2. Regulation  102(2), if  properly construed  in the\nsetting in  which it occurs only confers a suo motu power on\nthe Divisional\tBoard to amend the result of the examination\nin respect of any candidate or candidates on its being found\nthat such  result has  been affected  by error, malpractice,\nfraud, improper\t conduct, etc.\tThe error referred to in the\nsaid provision\thas the\t context to  be understood  as being\nlimited to  an error  rising in\t consequence of malpractice,\nfraud,\timproper   conduct  or\t other\tsimilar\t  matter  of\nwhatsoever nature.  Clauses (1)\t and (3)  of regulation\t 104\nmust be\t read together\tand not\t in isolation. Clause (3) of\nregulation 104\tcontains is fact a mandate to the Divisional\nBoards\tto   treat  the\t  answer  books\t  and  documents  as\nconfidential and  lays\tdown  that  no\tcandidate  shall  be\nentitled to  claim disclosure  or  inspection  of  the\tsaid\nconfidential books  and documents. Therefore, the High Court\nought not  to have invoked the doctrine of implied power and\nobligation, in\tthe instant case, for the purpose of holding\nthat because the right of verification has been conferred in\nclause (1)  of regulation  104, there is an implied power in\nthe examinees  to demand  disclosure and  inspection  and  a\ncorresponding implied obligation on the part of the Board to\ncause such a demand. [52 C-D, H; 53 A; C-D]\n34\n     5:3. Unless it can be said that a bye-law is manifestly\nunjust, capricious, inequitable or partial in i s operation,\neven a\tbye-law cannot\tbe struck  down by  a Court  on\t the\nground of  unreasonableness merely  because the Court thinks\nthat it\t goes further  than is necessary or that it does not\nincorporate certain  provisions which, in the opinion of the\nCourt, would  have been\t fair and wholesome. The responsible\nrepresentative body  entrusted with  the power\tto make bye-\nlaws must  ordinarily be presumed to know what is necessary,\nreasonable, just  and fair.  The Court\tshould be  extremely\nreluctant to  substitute its  opinions and  views as what is\nwise, prudent  and proper in relation to academic matters in\npreference  to\t those\tformulated   by\t  professional\t men\npossessing technical expertise and rich experience of actual\nday-to-day  working  of\t educational  institutions  and\t the\ndepartments  controlling  them.\t The  Court  cannot  make  a\npedantic and  purely idealistic\t approach to the problems of\nthis nature,  isolated from  the actual\t realities and grass\nroot problems  involved in  the working\t of the\t system\t and\nunmindful of  the consequences\twhich would  emanate,  if  a\npurely idealistic view as opposed to a pragmatic one were to\nbe propounded  The Court  should also,\tas far\tas possible,\navoid  any   decision  or   interpretation  of\ta  statutory\nprovision, rule\t or bye-law  which  would  bring  about\t the\nresult of  rendering the  system unworkable in practice. [53\nF-H; 55 A]\n     Trustees of  the Port  of Madras  v. Aminchand Pyarelal\nand ors.<\/a> [1976] 1 SCR 721 referred to.\n     Kruse v.  Johnson [1898]  2 Q.B. and Slattery v. Naylor\n[1888] 3 A.C. 446 quoted with approval.\n     6:1. What\tconstitutes fair play depends upon the facts\nand  circumstances   relating  to   each  particular   given\nsituation. If it is found that every possible precaution has\nbeen taken  and all  necessary safeguards provided to ensure\nthat the  answer books\tinclusive of supplements are kept in\nsafe custody  so as  to eliminate  the danger of their being\ntampered with  and  that  the  evaluation  is  done  by\t the\nexaminers by  applying uniform\tstandards  with\t checks\t and\ncross checks  at different  stages  and\t that  measures\t for\ndetection of  malpractice, etc.\t have also  been effectively\nadopted, in  such cases,  it will not be correct on the part\nof the\tCourts to  strike down\tthe  provisions\t prohibiting\nrevaluation on the ground that it violates the rules of fair\nplay. Further,\tthe candidates\thave taken  the\t examination\nwith full  awareness of\t the  provisions  contained  in\t the\nregulations and in the declarations made by them in the form\nof application\tfor admission  to the  examination they have\nsolemnly stated\t that they  fully  agree  to  abide  by\t the\nregulations issued by the Board. [59 A-C; 60 F-G]\n     6:2. That\tthe University\tof  Bombay  and\t some  other\nUniversities have\n35\nmade provisions permitting candidates to demand revaluation,\nhas little  relevance for  the purpose of deciding about the\nlegal validity\tof the\timpugned regulations  framed by\t the\nBoard.\tIn  the\t public\t interest,  the\t results  of  public\nexaminations published should have some finality attached to\nthem. If  inspection, verification,  in the  presence of the\ncandidates and\trevaluation are to be allowed as of right it\nmay  lead   to\tgross\tdelays\tand  indefinite\t uncertainly\nparticularly in\t regard to  the relative  ranking etc of the\ncandidates, besides leading to utter confusion on account of\nthe enormity of the labour and time involved in the process.\n[60 H; 61 A-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 1653
\nto 1691 of 1980
\n     Appeals by\t Special leave\tfrom the  Judgment and order
\ndated the  28th &  29 July, 1980 of the Bombay High Court in
\nWrit Petition Nos. 1906, 1772, 1799, 1838, 1885, 1923, 1925,
\n1926,1928, 1996-1998,  2005, 2060-65, 2076, 2099-2102, 2110,
\n2127, 1909,  1864, 1965, 1889, 1890, 1924, 1927, 2003, 2044,
\n2098, 2176, 2176, 2177 and 2179 of 1980
\n     R, P.  Bhati, Soli J. Sorabjee, Ravi Kulkarni, Ravinder
\nNarain, A.  N. Hasker,\tD. N. Misra and Mrs. A. K. Verma for
\nthe Appellants.\n<\/p>\n
     S. S. Khanduja and Satya Prakash for the Respondents.
\n     Dr. N. M. Ghatate for Respondent in CA. 1658\/80.
\n     P. H. Parekh and Miss Nisha Shrivastava for Respondents
\nin CA. Nos. 1659 and 1684 of 1980.\n<\/p>\n
     V. N.  Ganpule and Mrs. V. D. Khanna, for Respondent in
\nCA. 1685 of 1980.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     BALAKRISHNA ERADI,\t J. It\tis  common  experience\tthat
\nwhenever the  results of  Public examinations  conducted  by
\nSchool Boards  and Universities\t or by other bodies like the
\nPublic\tService\t  Commission  a\t  e  announced,\t amidst\t the
\nrejoicings of  successful candidates  who have\tsecured\t the
\ngrade of  marks anticipated  by\t them,\tit  also  inevitably
\nbrings\twith   it  a   long  trail  of\tdisappointments\t and
\nfrustrations as the direct outcome of the non-fructuation of
\nhopes  and  expectations  harboured  in\t the  minds  of\t the
\nexaminees based\t on the\t candidates own\t assessment of their
\nperformance and\t merit. Labouring under a feeling that there
\nhas not been a proper evaluation of their perfor-\n<\/p>\n
36<\/span><\/p>\n
mance in  the examination, they would naturally like to have
\na revaluation  of the  answer  books  and  even\t a  personal
\ninspection and\tverification of the answer books for finding
\nout whether  there has\tbeen  a\t proper\t evaluation  of\t the
\nanswers to all questions, whether the totalling of marks has
\nbeen correctly done and whether there has been any tampering
\nwith the  seat numbers\twritten on  the answer books and the
\nsupplementary sheets.  The question  canvassed before  us in
\nthese appeals is whether, under law  a candidate has a right
\nto demand  such an  inspection, verification and revaluation
\nof answer books and whether the statutory regulations framed
\nby the\tMaharashtra State  Board  of  Secondary\t and  Higher
\nSecondary education  governing the  subject insofar  as they
\ncategorically state that there shall be no such right can be
\nsaid to be ultra vires, unreasonable and void.\n<\/p>\n
     A\tnumber\tof  such  disappointed\tcandidates  who\t had
\nappeared for  the Higher Secondary Certificate and Secondary
\nSchool Certificate  public  examinations  conducted  by\t the
\nDivisional Boards  functioning\tunder  the  supervision\t and
\ncontrol of  the Maharashtra  State Board  of  Secondary\t and
\nHigher Secondary  Education-hereinafter called\t‘the Board’-
\nfiled a\t batch of  39 Writ  Petitions in  the High  Court of
\nBombay challenging the validity of Regulation 104 (3) of the
\nMaharashtra Secondary  and Higher Secondary Education Boards
\nRegulations 1977 and seeking the issuance of writs directing
\nthe Board  appellant  herein-to\t allow\tto  the\t petitioners
\ndisclosure and\tinspection of  their  answer  books  in\t the
\nPublic examination,  the results  whereof had  already\tbeen
\npublished and to conduct a revaluation of such of the answer
\npapers as  the petitioners  may demand after the inspection.
\nThe High  Court divided\t the Writ Petitions into two groups,
\nthe first  group consisting  of cases  where  the  right  of
\ninspection alone was claimed and the second group comprising
\nof cases  where the petitioners had claimed also the further
\nright to  demand a  revaluation of the answer papers. Though
\nall the\t Writ Petitions\t were heard  together by  a Division
\nBench consisting of V. S. Deshpande and V. A. Mohta, JJ, the
\ntwo groups  were disposed of by separate judgments delivered
\non behalf  of the  Bench on the same day-28th July 1980. The
\nfirst group  of Writ Petitions was disposed of by a judgment
\ndelivered by Deshpande, J speaking on behalf of the Division
\nBench. There  in it  was held  that clause (3) of Regulation
\n104 which  lays down  that no candidate shall be entitled to
\ndisclosure or  inspection  of  the  answer  books  or  other
\ndocuments as these are to be treated as most confidential is
\nultra vires on the
\n37<\/span>
\nground of its being in excess of the regulation-making power
\nof the\tBoard In the opinion of the Division Bench, the said
\nprovision cannot  be said  to serve  any purpose of the Act,
\nbut is,\t on the\t contrary, “defeasive”\tof the\tsame. It was
\nfurther held  that the impugned clause (3) of Regulation 104
\nto  the\t  extent  to   which  it  prohibits  disclosure\t and
\ninspection of the answer books and other connected documents
\non the\tground of confidentiality is unreasonable and liable
\nto be struck down on that ground also. Accordingly, the High
\nCourt declared\tclause (3)  of Regulation  14 to be void and
\nallowed the  first group  of Writ Petitions by directing the
\nBoard to  allow inspection  of the answer books asked for by
\nthe petitioners\t and  to  take\tconsequential  action  under
\nclauses (4) to (6) of Regulation 104 when found necessary.\n<\/p>\n
     The main judgment in the second group of Writ Petitions
\nwas delivered  by  Mohta,  J,  holding\tthat  the  provision
\ncontained  in\tclause\t(1)   of  Regulation   104  that  no
\nrevaluation of\tthe answer books or supplement shall be done
\nis ultra  vires the  regulation making\tpower  conferred  by
\nSection 36 and is also illegal and void on the ground of its
\nbeing manifestly  unreasonable. In  the view  of the learned
\nJudge, inspection  and disclosure  will serve  no purpose in
\ncase  the  further  right  of  revaluation  was\t denied\t and
\ninasmuch as  the right to disclosure and inspection had been
\nrecognised by  the judgment just then delivered in the first
\ngroup of  Writ Petitions,  the conclusion had necessarily to
\nfollow that  the Board\twas obliged to permit revaluation as
\nwell. On  this reasoning,  Regulation 104  (i) insofar as it
\nprohibits revaluation  was declared void and a direction was
\nissued to  the Board that in the case of those examinees who
\nhad applied  for revaluation,  such facility  should also be
\nallowed. By  a separate\t judgment, Deshpande,  J.  expressed
\nserious doubts\tand reservations  as to\t whether  a  further
\nright  of   revaluation\t could\t be  spelt   out  from\t the
\nregulations, but family agreed with the conclusion expressed
\nby his\tcolleague stating thus: “rather than allow my doubts
\nto prevail  and dissent,  I prefer  to agree with him in the
\nabove circumstances”.  Aggrieved by these judgments rendered
\nin the\ttwo groups  of cases,  the Board has preferred these
\nappeals before this Court after obtaining special leave.\n<\/p>\n
     The Maharashtra  Secondary and  Higher Secondary Boards
\nAct, 1965  (for short, “the Act”) has been passed to provide
\nfor the establishment of a State Board and Divisional Boards
\nto regulate  certain matters  pertaining  to  secondary\t and
\nhigher secondary  education in\tthe  State.  Section  3\t (1)
\nprovides that the State Govern-\n<\/p>\n
38<\/span><\/p>\n
ment  shall,   by  notification\t in  the  official  gazette,
\nestablish  a   Board  for   the\t whole\tState  by  the\tname
\n‘Maharashtra State  Board of  Secondary and Higher Secondary
\nEducation’. By\tsub-section (2)\t of the\t same Section, it is
\nfurther provided  that the State Government shall, likewise,
\nestablish a Board for each of the three divisions under such
\nname as\t may be specified in the notification. The appellant
\nBoard is  the State  Board constituted under sub-section (1)
\nof Section 3.\n<\/p>\n
     The powers\t and duties  of the  State Board  have\tbeen
\nenumerated in  clauses (a)  to (r) of Section 18 of the Act.
\nClause (a)  states that it shall be the duty of the Board to
\nadvise the State Government on matters of policy relating to
\nSecondary or  Higher Secondary\teducation in  general.\tThus
\nunder the  scheme of  the Act,\tthe Board is to discharge an
\nimportant  role\t in  formulating  policies  on\tall  matters
\nrelating to Secondary and Higher Secondary education. Clause\n<\/p>\n
(f) empowers  the Board\t to prescribe the general conditions
\ngoverning admission of regular and private candidates to the
\nfinal examination  and to  specify the\tconditions regarding
\nthe attendance\tand character  on the fulfillment of which a
\ncandidate shall have a right to be admitted to and to appear
\nat any such examination.\n<\/p>\n
     Section 19\t deals with  the  powers  and  duties  of  a
\nDivisional Board.  Under clause\t (f) it\t is the\t duty of the
\nDivisional Board  to conduct in the area of its jurisdiction
\nthe final  examination on  behalf of the State Board. Clause\n<\/p>\n
(g) empowers  the Divisional Board to appoint paper setters,
\ntranslators, examiners,\t moderators, supervisors  and  other
\nnecessary personnel  for conducting the final examination in
\nthe area  of its jurisdiction, for evaluation of candidates’
\nperformance and\t for compiling and release of the results in
\naccordance with\t such instructions  as the  State Board\t may
\nfrom time  to time  issue. Under clause (h) it is within the
\npower of  the Divisional  Board to  admit candidates for the
\nfinal examination  according to\t the regulations made by the
\nState Board  in this behalf. Clause (m) vests the Divisional
\nBoard with  power to  generally evaluate  the performance of
\nstudents in all examinations in secondary schools and junior
\ncolleges including  the final examination and make necessary
\nrecommendations to the State Board in that behalf.\n<\/p>\n
     Section 36\t (1) of\t the Act empowers the State Board to
\nmake ‘regulations’  for the  purpose of carrying into effect
\nthe provisions\tof the\tAct. Sub-section  (2)  states  that,
\nwithout prejudice to generality of the foregoing power, such
\nregulations may provide for any of the
\n39<\/span>
\nmatters enumerated  in clauses\t(a) to\t(n) thereof. Clauses\n<\/p>\n
(c), (d),  (f) and  (g) which  alone are  relevant  for\t our
\npresent purpose are reproduced below:-\n<\/p>\n
\t  “(c) the  general conditions\tgoverning, admission
\n     of\t regular   and\tprivate\t candidates  for  the  final
\n     examinations, and\tany particular\tconditions regarding
\n     attendance and character, on the fulfillment of which a
\n     candidate shall  have a  right to be admitted to and to
\n     appear at any such examination;”\n<\/p><\/blockquote>\n
\t  “(d) the marks required for passing in any subject
\n     and  the\tfinal  examination   as\t a  whole,  and\t for
\n     exemption, credit and distinction in any subject;”
\n\t  “(f) the  arrangements for  the conduct  of  final
\n     examinations by  the Divisional  Boards and publication
\n     of results;”\n<\/p><\/blockquote>\n
\t  “(g) the  appointment of  examiners, their  powers
\n     and duties\t in relation  to the  final examinations and
\n     their remuneration;”<\/p><\/blockquote>\n
     Sub-section (3) lays down that no regulation made under
\nthis section  shall have  effect until\tthe  same  has\tbeen
\nsanctioned by the State Government.\n<\/p>\n
     Section 38\t has conferred on the State Board a distinct
\npower to  make ‘bye-laws’  consistent with  the Act  and the
\nregulations made  thereunder. Such  bye-laws are  to provide
\nfor the\t procedure to  be followed  at the  meetings of\t the
\nBoard and  the Divisional Boards and the Committee appointed
\nby any of them and the numbers of members required to form a
\nquorum\tat  such  meetings  and\t any  other  matters  solely
\nconcerning the\tBoards and their Committees not provided for
\nby the Act and the regulations made thereunder.\n<\/p>\n
     Three Divisional Boards have been set up in Maharashtra
\nby the\tState Government  in exercise of the power conferred
\nby Section  3 and  these Boards\t are in\t charge of the Poona
\nDivision,  Aurangabad\tDivision  and\tVidharbha   Division
\nrespectively. These  three  Divisional\tBoards\tconduct\t two
\npublic\t examinations,\t  namely,   the\t  Higher   Secondary
\nCertificate   examination-“H.S.C.    examination”-which\t  is
\nconducted at  the end  of  the\thigher\tsecondary  education
\ncourse and
\n40<\/span>
\nthe   Secondary\t  School   Certificate\t examination-“S.S.C.
\nexamination”-conducted at  the end  of the  secondary school
\neducation course.\n<\/p>\n
     In exercise  of the  powers conferred  by Section 36 of
\nthe  Act,   the\t State\tBoard  has  framed  the\t Maharashtra
\nSecondary and  Higher Secondary Education Boards Regulations
\n1977.  These   regulations  were  sanctioned  by  the  State
\nGovernment under  sub-section (3)  of Section  36  and\twere
\npublished on  the 11th\tJuly, 1977. They are to be deemed to
\nhave come  into force  on 15th\tJune 1977. These regulations
\nwere applied to the Secondary School Certificate examination
\nand  Higher   Secondary\t Certificate   examination  held  in
\nOctober, 1977  and thereafter.\tThe regulations consist of 3
\nparts. Part  I contains\t the provisions\t common to Secondary
\nSchool Certificate (S.S.C.) and Higher Secondary Certificate
\n(H.S.C.)  examinations;\t  Part\t II   contains\t regulations
\npertaining to  S.S.C. examination  only and  Part III  those
\npertaining exclusively\tto the\tHigher Secondary Certificate
\nexaminations Regulation\t 104 with  which  we  are  concerned
\noccurs in  Part III  and clauses  (1) to  (3) thereof  which
\nalone are  relevant for the purposes of this case require to
\nbe reproduced here:\n<\/p>\n
  “104.\t  VERIFICATION OF MARKS OBTAINED BY A CANDIDATE IN A
\n\t  SUBJECT.\n<\/p>\n
\t  (1)  Any candidate  who has appeared at the Higher
\n\t       Secondary Certificate  examination may  apply
\n\t       to the  Divisional Secretary for verification
\n\t       of  marks  in  any  particular  subject.\t The
\n\t       verification will  be restricted\t to checking
\n\t       whether all  the answers\t have been  examined
\n\t       and that\t there has  been no  mistake in\t the
\n\t       totalling of  marks for each question in that
\n\t       subject and  transferring marks\tcorrectly on
\n\t       the first  cover page  of the answer-book and
\n\t       whether\tthe   supplements  attached  to\t the
\n\t       answer book mentioned by the candidate are in
\n\t       tact. No\t revaluation of\t the answer-book  or
\n\t       supplements shall be done.\n<\/p>\n
\t  (2)  Such an\tapplication  must  be  made  by\t the
\n\t       candidate through  the  head  of\t the  junior
\n\t       college\t which\t presented   him   for\t the
\n\t       examination,  within   two   weeks   of\t the
\n\t       declaration of the examination results
\n41<\/span>
\n\t       and must\t be accompanied by a fee of Rs. 10\/-\n<\/p>\n
\t       for each subject.\n<\/p>\n
\t  (3)\tNo candidate  shall claim, or be entitled to
\n\t       revaluation of  his answers  or disclosure or
\n\t       inspection  of\tthe  answer-books  or  other
\n\t       documents  as   these  are   treated  by\t the
\n\t       Divisional Board as most confidential.”\n<\/p>\n
     Before the\t High Court,  the Writ Petitioners had based
\ntheir challenge\t against the validity of clauses (1) and (3)
\nof Regulation 104 on three main grounds. The first ground of
\nattack was  that the  impugned clauses were violative of the
\nprinciples of  natural justice.\t Secondly, it was urged that
\nboth clauses  (1) and  (3) were\t ultra vires and void on the
\nground of  their being\tin excess  of the  regulation making
\npowers conferred  on the Board by Section 36 of the Act. The
\nthird ground  of challenge  was that the impugned provisions
\ncontained in  clauses (l)  and (3)  were highly unreasonable
\nand since  the regulations  framed by  the Board  are in the
\nnature of bye-laws, they are liable to be struck down on the
\nground of unreasonableness.\n<\/p>\n
     Though the\t main plank  of the  arguments\tadvanced  on
\nbehalf of  the petitioners  before the High Court appears to
\nhave been  the plea  of violation  of principle\t of  natural
\njustice, the  said contention  did not\tfind favour with the
\nlearned\t Judges\t of  the  Division  Bench.  The\t High  Court
\nrejected  the\tcontention  advanced   on  behalf   of\t the
\npetitioners that non-disclosure or disallowance of the right
\nor inspection  of the  answer-books as well as denial of the
\nright  to  ask\tfor  a\trevaluation  to\t examinees  who\t are
\ndissatisfied with the results visits them with adverse civil
\nconsequences.  The   further  argument\tthat  every  adverse
\n“verification” involves\t a  condemnation  of  the  examinees
\nbehind their back and hence constitutes a clear violation of
\nprinciples of  natural justice\twas also not accepted by the
\nHigh Court.  In our  opinion, the  High Court  was perfectly
\nright in  taking this view and in holding that (the “process
\nof evaluation of answer papers or of subsequent verification
\nof marks”  under clause\t (3)  of  Regulation  104  does\t not
\nattract the  principles of natural justice since no decision
\nmaking process which brings about adverse civil consequences
\nto the\texaminees in  involved. The  principles\t of  natural
\njustice cannot\tbe extended  beyond reasonable\tand rational
\nlimits and  cannot be  carried to  such absurd lengths as to
\nmake it\t necessary that\t candidates who\t have taken a public
\nexamination should  be allowed to participate in the process
\nof evaluation of their performances or
\n42<\/span>
\nto verify  the correctness  of the  evaluation made  by\t the
\nexaminers by  themselves conducting  an\t inspection  of\t the
\nanswer-books and determining whether there has been a proper
\nand fair  valuation of\tthe  answers  by  the  examiners  As
\nsuccinctly put\tby Mathew, J in his judgment in the Union of
\nIndia v.  M.L. Kapur,<\/a>\t“it  is not  expedient to extend the
\nhorizon of  natural justice  involved in  the  Audi  alteram
\npartem rule  to the  twilight  zone  of\t mere  expectations,
\nhowever great they might be”. The challenge levelled against
\nthe validity  of clause\t (3) of\t Regulation 104 based on the
\nplea of violation of natural justice was, therefore, rightly
\nrejected by the High Court.\n<\/p>\n
     The High  Court in\t its judgment  in the first group of
\ncases then  went on  to consider  the next  two\t grounds  of
\nchallenge put  forward\tby  the\t petitioners.  namely,\tthat
\nclause (3)  is ultra  vires on\tthe ground  of its  being in
\nexcess of the regulation making powers of the Board and that
\nin any\tevent it  is void  on the ground of unreasonableness
\nBoard these  grounds of\t challenge were\t upheld by  the High
\nCourt and,  in consequence thereof, clause (3) of Regulation
\n104 has\t been struck  down by the learned Judges as illegal,
\nultra vires and void. After giving our careful consideration
\nto the\targuments advanced  by the learned counsel appearing
\non both sides, we have unhesitatingly come to the conclusion
\nthat the view so taken by the High Court is wholly erroneous
\nand unsustainable.\n<\/p>\n
     We shall first take up for consideration the contention
\nthat clause  (3)  of  Regulation  104  is  ultra  vires\t the
\nregulation-making powers  of the  Board. The  point urged by
\nthe  petitioners   before  the\t High  Court  was  that\t the
\nprohibition against  the inspection  or\t disclosure  of\t the
\nanswer papers  and other  documents and the declaration made
\nin the\timpugned  clause  that\tthey  are  “treated  by\t the
\nDivisional Board as confidential documents” do not serve any
\nof the\tpurposes of  the Act  and hence these provisions are
\nultra vires.  The High\tCourt was  of the view that the said
\ncontention of the petitioners had to be examined against the
\nback-drop of  the fact\tdisclosed by  some  of\tthe  records
\nproduced before\t it that  in the  past there  had been a few
\ninstances where some students possessing inferior merits had
\nsucceeded  in\tpassing\t off  the  answer  papers  of  other
\nbrilliant students  as their  own  by  tampering  with\tseat
\nnumbers\t or   otherwise\t  and\tthe   verification   process
\ncontemplated under  Regulation 104  had failed to detect the
\nmischief. In our opinion, this
\n43<\/span>
\napproach made  by the  High Court  was not correct or proper
\nbecause the question whether a particular piece of delegated
\nlegislation-whether a  rule or\tregulation or  other type of
\nstatutory  instrument-is   in  excess\tof  the\t  power\t  of
\nsubordinate legislation\t conferred on the delegate has to be
\ndetermined with\t reference only\t to the\t specific provisions
\ncontained in  the relevant  statute conferring\tthe power to
\nmake the  rule, regulation,  etc. and  also the\t object\t and
\npurpose of  the Act  as can  be gathered  from\tthe  various
\nprovisions of  the enactment.  It would\t be wholly wrong for
\nthe court  to substitute  its own  opinion for\tthat of\t the
\nlegislature or\tits delegate  as to what principle or policy
\nwould best  serve the objects and purposes of the Act and to
\nsit  in\t judgment  over\t the  wisdom  and  effectiveness  or
\notherwise of  the policy  laid down by the regulation-making
\nbody and  declare a  regulation to  be ultra vires merely on
\nthe ground  that, in  the view\tof the\tCourt, the  impugned
\nprovisions will\t not help to serve the object and purpose of
\nthe Act.  So long  as the  body entrusted  with the  task of
\nframing the  rules or  regulations acts\t within the scope of
\nthe authority  conferred on  it, in the sense that the rules
\nor regulations\tmade by\t it have  a rational acts within the
\nobject and  purpose of\tthe Statute,  the court\t should\t not
\nconcern itself\twith the  wisdom or  efficaciousness of such
\nrules or  regulations. It is exclusively within the province
\nof the\tlegislature and\t its delegate  to  determine,  as  a
\nmatter of policy, how the provisions of the Statute can best
\nbe implemented\tand what  measures, substantive\t as well  as
\nprocedural would  have to  be incorporated  in the  rules or
\nregulations for\t the efficacious  achievement of the objects
\nand purposes  of the Act. It is not for the Court to examine
\nthe merits or demerits of such a policy because its scrutiny
\nhas to be limited to the question as to whether the impugned
\nregulations fall  within the  scope of the regulation-making
\npower conferred on the delegated by the Statute. Though this
\nlegal position\tis well\t established by\t a  long  series  of
\ndecisions of  this Court, we have considered it necessary to
\nreiterate it  in view  of the  manifestly erroneous approach
\nmade by\t the High Court to the consideration of the question
\nas to  whether the  impugned clause (3) of Regulation 104 is
\nultra vires.  In the  light of\tthe aforesaid principles, we
\nshall now proceed to consider the challenge levelled against
\nthe validity of the Regulation 104 (3).\n<\/p>\n
     As already\t noticed, the  power to\t make regulations is
\nconferred on the Board by Section 36 of the Act. Sub-section
\n(1) of\tthe said  Section lays\tdown that the Board may make
\nregulations for\t the purpose  of carrying  into\t effect\t the
\nprovisions of the Act. Sub-\n<\/p>\n
44<\/span><\/p>\n
section (2)  enumerates, in  clause (a)\t to (n)\t the various
\nmatters for  which  the\t provisions  may  be  made  by\tsuch
\nregulations, the said enumeration being without prejudice to
\nthe generality of the power conferred by sub-section (1). We
\nhave already  extracted clauses\t (c), (d), (f) and (g) which
\ndeal with  the conditions  governing admission of candidates
\nfor the\t final examinations, the arrangement for the conduct
\nof final  examinations by  the\tDivisional  Boards  and\t for
\npublication of\tresults, and  the appointment  of examiners,
\ntheir  powers\tand  duties   in  relation   to\t the   final
\nexaminations, etc.  These topics are comprehensive enough to
\ncover the  prescription of  the procedure for finalizing the
\nresults of  the examination  based on  the evaluation of the
\nanswers\t of   the  candidates  who  have  appeared  for\t the
\nexaminations, as  well as the laying down of the restrictive
\nprovisions relating  to verification  of marks,\t prohibition
\nagainst disclosure and inspection of answer books and denial
\nof any\tright or claim for evaluation. We fail to see how it
\ncan be\tsaid that  these are  not matters  pertaining to the
\nconduct of  the final examination and the publication of the
\nresults of  such examination. Further, Section 19 of the Act
\nwhich sets  out the  powers and duties of a Divisional Board
\nlays down  in clauses  (f) and (g) that the Board shall have
\nthe power  and is under a duty to conduct in the area of its
\njurisdiction the  final examination  on behalf\tof the State
\nBoard and  to appoint  paper-setters,  examiners,  etc,\t for
\nconducting  the\t  final\t examination  in  the  area  of\t its
\njurisdiction, for evaluation of candidates, performances and
\nfor compiling and release of results in accordance with such
\ninstructions as the State Board may from time to time issue.
\nIt is  thus clear  that the conduct of the final examination
\nand the\t evaluation of\tthe candidates’\t performance and the
\ncompiling and  release of  results are all to be carried out
\nby the\tdivisional Board in accordance with the instructions
\nto be  issued by  the State  Board from time to time. It is,
\ntherefore, manifest  that a  duty is cast on the State Board
\nto formulate its policy as to how the examinations are to be
\nconducted, how\tthe evaluation\tof the\tperformances of\t the
\ncandidates is  to be  made and by what procedure the results
\nare to\tbe finalised, compiled and released. In our opinion,
\nit was\tperfectly within the competence of the Board, rather
\nit was\tits plain  duty, to  apply its\tmind and decide as a
\nmatter of  policy relating to the conduct of the examination
\nas to  whether disclosure and inspection of the answer books
\nshould be  allowed to  the candidates,\twhether and  to what
\nextent verification  of the  result I  should  be  permitted
\nafter the  results have\t already been  announced and whether
\nany right to claim revaluation of the answer books
\n45<\/span>
\nshould\tbe   recognised\t or  provided  for.  All  these\t are
\nundoubtedly matters  which have\t an intimate  nexus with the
\nobjects and  purposes of  the enactment\t and are, therefore,
\nwithin the  ambit of  the general  power to make regulations
\nconferred under\t Sub-section (1) of Section 36. In addition.
\nthese matters  fall also within the scope of clause (c), (f)
\nand (g)\t of sub-section\t (2) of the said Section. We do not,
\ntherefore, find\t it possible  to accept\t as correct the view
\nexpressed by  the High\tCourt that  clause (3) of Regulation
\n104 is\tultra vires  on the ground of its being in excess of
\nthe regulation-making  power conferred\ton the Board Instead
\nof confining  itself to a consideration whether the impugned
\nregulations fall  within the four corners of the Statute and
\nparticularly of\t Section 36  thereof which confers the power
\nto  make  regulations,\tthe  High  Court  embarked  upon  an
\ninvestigation  as   to\twhether\t  the  prohibition   against
\ndisclosure  and\t  inspection  of   answer  books  and  other
\ndocuments imposed  by the  impugned clause (3) of Regulation
\n104 would, in practice, effectively serve the purpose of the
\nAct ensuring  fair play to the examinees) The High Court was
\nof the\topinion that  in deciding the question as to whether
\nthe impugned  clause was  ultra vires, the Court had to bear
\nin mind\t “the glaring  deficiencies” found  to exist  in the
\nworking\t of   the  system   inspite  of\t all  the  elaborate
\nprecautionary measures\ttaken  for  preventing\tsuch  lapses
\nwhich were  detailed in the affidavit in reply and “the far-
\nreaching implications of the said deficiencies on the future
\nof the\texaminees” and it went on to observe that “the nexus
\nor absence  thereof between  the purposes  of the Act or the
\npurpose of  the\t examination  and  the\tprohibition  against
\ninspection in  the impugned clause can be discovered only by
\nreference to  these factors  . When the High Court proceeded
\nto make following further observations:\n<\/p>\n
\t  “The\texaminee   is\tthe   person   affected\t  by
\n     miscalculation of\ttotals,\t omissions  to\texamine\t any
\n     answer, misplacement  of  the  supplementaries  of\t the
\n     answer books  and misplacement  or tampering  with\t the
\n     said record  in any  manner,  if  any.  Adverse  result
\n     creates suspicion in his mind about the possible errors
\n     in the  system and his claim to inspection against this
\n     background must be held to be reasonable and calculated
\n     to observe\t the purposes of the examination as also the
\n     over-all purposes\tof the\tAct.  This  enables  him  to
\n     verify if\this suspicions\tare  ill  or  well  founded.
\n     Existence of some over-riding factors alone can justify
\n     denial of his claim.”\n<\/p><\/blockquote>\n
46<\/span><\/p>\n
     The High  Court concluded\tthe discussion\tby stating :\n<\/p><\/blockquote>\n
“Such confidentiality  cannot be  found to  be\tserving\t any
\npurpose of  the Act  merely because it was acquiesced in the
\npast  or   accepted  without  challenge.  According  to\t Mr.
\nSetalvad, authority to treat these documents confidential is
\nimplicit in  the very  power to hold the examination itself,
\nit being  necessary to\tsecure effective  achievement of the
\nprocess. This  is too  broad a\tstatement to  admit  of\t any
\nscrutiny. No  such power can, however, be implied unless its
\nindispensibility of  treating the  question papers and names
\nof the\tquestion setters and examiners confidential, up to a
\ncertain stage  can easily  be appreciated.  Their  premature
\ndisclosure  or\t exposure  may\t defeat\t  the\tpurpose\t  of
\nexaminations and  make a  mockery of its very conception. It
\nis, however  difficult to  see any  purpose of continuing to
\nkeep them  confidential at any rate after the declaration of
\nthe results.”\n<\/p>\n
     In our opinion, the aforesaid approach made by the High
\nCourt is  wholly incorrect  and fallacious. The Court cannot
\nsit in judgment over the wisdom of the policy evolved by the
\nlegislature and\t the subordinate  regulation-making body. It
\nmay be a wise policy which will fully effectuate the purpose
\nof the\tenactment or  it may be lacking in effectiveness and
\nhence  calling\t for  revision\t and  improvement.  But\t any
\ndrawbacks in the policy incorporated in a rule or regulation
\nwill not  render it  ultra vires and the Court cannot strike
\nit down on the ground that, in its opinion, it is not a wise
\nor prudent  policy, but\t is even  a foolish one, and that it
\nwill not really serve to effectuate the purposes of the Act.
\nThe legislature\t and its  delegate are the sole repositories
\nof the\tpower to  decide what  policy should  be pursued  in
\nrelation to matters covered by the Act and there is no scope
\nfor  interference   by\tthe   Court  unless  the  particular
\nprovision impugned  before it can be said to suffer from any
\nlegal infirmity, in the sense of its being wholly beyond the
\nscope  of   the\t regulation-making   power  or\t its   being
\ninconsistent with  any\tof  the\t provisions  of\t the  parent
\nenactment or  in violation of any of the limitations imposed
\nby the\tConstitution. None  of these  vitiating factors\t are
\nshown to  exist in  the present\t case and hence there was no
\nscope at  all for the High Court to invalidate the provision
\ncontained in  clause (3) of Regulation 104 as ultra vires on
\nthe grounds  of its being in excess of the regulation-making
\npower conferred\t on the\t Board. Equally\t untenable,  in\t our
\nopinion, is  the next  and last ground by the High Court for
\nstriking down  clause (3) of Regulation 104 as unreasonable,
\nnamely, that  it is  in the nature of a bye-law and is ultra
\nvires on the ground of its being an
\n47<\/span>
\nunreasonable provision.\t It is\tclear from the scheme of the
\nAct and\t more particularly,  Section 18,  19 and 34 that the
\nlegislature has\t laid down  in broad  terms  its  policy  to
\nprovide\t for   the  establishment   of\ta  State  Board\t and
\nDivisional  Boards   to\t regulate   matters  pertaining\t  to
\nsecondary  and\t higher\t secondary   education\tand  it\t has
\nauthorised the\tState Government  in the  first instance and
\nsubsequently the Board to enunciate the details for carrying
\ninto effect  the purposes of the Act by framing regulations.
\nIt is a common legislative practice that the legislature may
\nchoose to  lay down only the general policy and leave to its
\ndelegate to  make  detailed  provisions\t for  carrying\tinto
\neffect the  said policy\t and effectuate\t the purposes of the
\nStatute by framing rules\/regulations which are in the nature
\nof subordinate legislation. Sec. 3(39) of the Bombay General
\nClauses Act,  1904, which  defines the\t‘rule’ states:\tRule
\nshall mean  a rule  made in  exercise of the power under any
\nenactment and shall include any regulation made under a rule
\nor under  any enactment.”  It is  important to notice that a
\ndistinct power\tof making bye-laws has been conferred by the
\nAct on the State Board under Section 38. The legislature has
\nthus  maintained   in  the   Statute  in  question  a  clear
\ndistinction between  ‘bye-laws’ and  ‘regulations’. The bye-
\nlaws to\t be framed  under Section  38 are  to relate only to
\nprocedural matters  concerning the  holding of\tmeetings  of
\nState Board, Divisional Boards and the Committee, the quorum
\nrequired, etc More important matters affecting the rights of
\nparties and  laying down  the manner in which the provisions
\nof the\tAct are to be carried into effect have been reserved
\nto be provided for by regulations made under Section 36. The
\nlegislature, while  enacting Sections  36 and  38,  must  be
\nassumed to  have been  fully aware  of the  niceties of\t the
\nlegal\tposition    governing\tthe    distinction   between
\nrules\/regulations properly  so called and bye-laws. When the
\nstatute\t contains  a  clear  indication\t that  the  distinct
\nregulation-making power\t conferred under  Section 36 was not
\nintended as a power merely to frame bye-laws, it is not open
\nto the\tCourt to  ignore the  same and treat the regulations
\nmade under  Section 36\tas mere\t bye-laws in  order to bring
\nthem within the scope of justiciability by applying the test
\nof reasonableness.\n<\/p>\n
     It is  also relevant  to notice  in  this\tcontext\t the
\nnature and  composition of the body on which the regulation-
\nmaking power  has been conferred by the Act. The composition
\nof the\tState Board is set out in Section 5. It will be seen
\ntherefrom that\tthe Board  is to  have as ex-officio members
\nthe Director of Education of the
\n48<\/span>
\nState Government,  the Director\t of Higher  Education of the
\nState Government, the Chairmen of the Divisional Boards, the
\ndirector of  Technical Education  of the State, the Director
\nof Agriculture,\t the Director  of  the\tState  Institute  of
\nEducation.  Then   there  is  a\t class\tof  elected  members
\nconsisting of one representative from each University in the
\nState elected by the Academic Council of the University, two
\nmembers elected by the Maharashtra Legislative Assembly from
\namongst\t its   members\tand   one  member   elected  by\t the
\nMaharashtra Legislative\t Council from  amongst its  members.
\nNext comes  the category  of nominated\tmembers belonging to
\nfive different\tcategories described  in clauses  (i) to (v)
\nunder class  (C) in  the Section,  aggregating 21 in all. It
\nwill be seen from these clauses that these nominated members
\nare  to\t be  drawn  from  amongst  Principals,\tHeadmasters,
\nHeadmistresses, teachers  of Junior  Colleges and  Secondary
\nSchools, representatives  of managing  bodies  of  secondary
\nschools\t and   junior  colleges,   persons  having   special
\nknowledge or  practical experience in matters connected with
\nprimary, secondary  or higher secondary education. The State
\nBoard is  thus comprised  of members  who can  be reasonably
\nexpected to  possess intimate knowledge, practical know-how,
\nexpertise and  experience in  all matters  pertaining to the
\nfield of education-school and collegiate-and it is to such a
\nhighly\tresponsible   body  of\tprofessional  men  that\t the
\nlegislature has\t entrusted the\ttask of\t framing regulations
\nlaving down  the  details  of  policy  of  working  out\t the
\nprovisions of the Act are to be carried into effect. Section
\n37(i) lays  down that the first regulations shall be made by
\nthe State  Government and they shall continue to be in force
\nuntil the  new regulations  are\t made  by  the\tBoard  under
\nsection 36.  There is also the further safeguard provided in
\nsub-section (3)\t of Section 36 that no regulation made under
\nthat Section  shall have  the effect until the same has been
\nsanctioned by the State Government. Even more significant is
\nthe   provision contained  in sub-section  (2) of Section 37
\nconferring a  concurrent power\ton the\tState Government  to
\nmake any  new regulations  in respect  of any of the matters
\nreferred to  in Section\t 36 and\t thereby  modify  or  repeal
\neither wholly  or in  part the regulations made by the State
\nBoard. The said sub-section is in the following terms :\n<\/p>\n
\t  “37. (2)  If it  shall at  any time  appear to the
\n     State Government  that it\tis expedient to make any new
\n     regulations in  respect of\t any of the matters referred
\n     to in Section 36 or that any regulations referred to in
\n     sub-section (i)  or  made\tby  the\t State\tBoard  under
\n     section 36 need to be modi-\n<\/p><\/blockquote>\n
49<\/span><\/p>\n
     fied or  repealed, either\twholly or in part, the State
\n     Government may  after consultation with the State Board
\n     and by  notification in the official Gazette, make such
\n     regulations, or  modify or repeal any such regulations,
\n     either wholly  or in  part. The  regulations  so  made,
\n     modified or  repealed shall  take effect from such date
\n     as\t the  State  Government\t may  in  such\tnotification
\n     specify or\t if no such date is specified, from the date
\n     of publication of the said notification in the Official
\n     Gazette, except as respects anything done or omitted to
\n     be done before such date.”<\/p><\/blockquote>\n
     In our opinion, there cannot be a clearer indication of
\nthe  intention\t of  the   legislature\tregarding  the\ttrue
\ncharacter of  the regulations  which are  to be\t made either
\nunder Section  36 or  under the\t provisions of\teither\tsub-
\nsection (1)  or sub-section  (2) of  the Section 37, namely,
\nthat they  are in  the\tnature\tof  subordinate\t legislation
\nhaving the  force of  rule framed under a Statute amplifying
\nand supplementing  its provisions  by laying  down  how\t the
\nlegislative policy is to be carried into effect with respect
\nto different situations that may arise in the implementation
\nof the\tobject and  purposes  of  Statute.  Viewed  in\tthis
\nsetting, we  are unhesitatingly\t of  the  opinion  that\t the
\nregulations made  by the  Board under  Section 36 are in the
\nnature of  statutory rules and they have the full vigour and
\nforce of  subordinate legislation  made by  a delegate\tduly
\nempowered in  that behalf  by the legislature. In support of
\nits conclusion\tthat the Regulations framed under Section 36
\nare only in the nature of byelaws, the Division Bench of the
\nHigh Court  has strongly  relied on an earlier ruling of the
\nsame court  in Sophy  Kelly v.\tThe State,(1)  where another
\nDivision Bench\thas expressed  the view that the earlier set
\nof regulations\tframed under  Section 36 of the Act are only
\nin  the\t  nature  of  bye-laws.\t In  arriving  at  the\tsaid
\nconclusion, the\t Court is  not seen to have adverted to most
\nof the\tcrucial aspects\t pointed out  by us in the preceding
\nparagraphs. We\tare unable  to accept  the said\t decision as
\nlaying down correct law.\n<\/p>\n
     In\t the  light  of\t what  we  have\t stated\t above,\t the
\nconstitutionality of  the impugned  regulations\t has  to  be
\nadjudged only  by a  threefold test, namely, (1) whether the
\nprovisions of  such regulations\t fall within  the scope\t and
\nambit of the power conferred by the statute on the delegate;
\n(2) whether the rules\/regulations framed by the
\n50<\/span>
\ndelegate are  to any extent inconsistent with the provisions
\nof  the\t parents  enactment  and  lastly  (3)  whether\tthey
\ninfringe any of the fundamental rights or other restrictions
\nor limitations\timposed by the Constitution. We have already
\nheld that  the High  Court was\tin error in holding that the
\nprovisions of  clause (3) of Regulation 104 do not serve the
\npurpose of  carrying into  effect the  provisions of the Act
\nand are\t ultra vires  on the ground of their being in excess
\nof the\tregulation-making power conferred by Section 36. The
\nWrit Petitioners  had no case before the High Court that the
\nimpugned clauses  of  the  regulations\twere  liable  to  be
\ninvalidated on\tthe application\t of second  and third tests.
\nBesides the  contention that  the impugned  regulations were
\nultra vires  the power\tconferred under\t Section 36(1),\t the
\nonly other  point urged\t was that they were in the nature of
\nbye-laws and  were liable to be struck down on the ground of
\nunreasonableness.\n<\/p>\n
     In view  of the  conclusion expressed  by us  that\t the
\nregulations  cannot   be  regarded  as\tmere  bye-laws,\t the
\ncontention  raised  on\talleged\t unreasonableness  does\t not
\nreally call for consideration. However, since the High Court
\nhas discussed  the said\t aspect at  great length  in its two
\njudgments and  fairly elaborate arguments were also advanced
\nbefore us  by the learned advocates appearing on both sides,
\nwe think  it is\t only fair and proper that we should briefly
\nexpress our  views on  the merits of the question concerning
\nthe reasonableness  of impugned regulation. The reason which
\nweighed with the High Court for declaring that clause (3) of
\nRegulation 104,\t which states  that no\tcandidate should  be
\nentitled to  claim disclosure  and inspection  of the answer
\nbooks and  other connected documents and that they are to be
\ntreated\t as   confidential  suffers   from   the   vice\t  of
\nunreasonableness is  that denial  of the right of disclosure
\nand inspection\tis ‘defeasive’\tof the right of verification
\nconferred on  the examinees under sub-clause (1) of the same
\nclause as  well as  the right flowing from sub-clause (2) of
\nRegulation 102 whereby the Divisional Board is invested with
\nthe power  to amend  the  result  of  any  candidate  in  an
\nexamination where  it is  found that  the  result  has\tbeen
\naffected by  error, malpractice,  fraud, etc.  Dealing\twith
\nthis aspect, the High Court has observed as follows in paras
\n46 and 47 of its judgment:\n<\/p>\n
\t  “We, however,\t do not\t think that  mere absence of
\n     any positive  provision for  inspection can be decisive
\n     of\t examinees’  claim  thereto.  The  Board  itself  is
\n     conscious of  the falliability  of its  system, and the
\n     possibility of inadvertent
\n51<\/span>
\n     or\t deliberate   errors  and   malpractices.  It\thas,
\n     therefore, provided  correctives against such errors in
\n     Regulations 102  and 104.\tRight  of  verification\t and
\n     power of  correction of  the results,  conferred  under
\n     these regulations must be assumed to have been intended
\n     to be effective. Experience of a few years however, has
\n     revealed several deficiencies in the functioning of the
\n     system  and   demonstrated\t how   the  said  system  of
\n     verification  and\t powers\t of  correction\t can  become
\n     ineffective.   Entire    reliance\t on    the   Board’s
\n     administration even  for the  ministerial part of these
\n     functions may reduce these provisions to a dead letter.
\n     These rights  and powers  can be  better effectuated by
\n     enabling the  examinee, to\t have himself  inspection of
\n     the papers.  Such a  right indeed\tis implicit  in\t the
\n     right of  verification. The power to correct the errors
\n     and amend result contemplated under Regulations 104 and
\n     102 also  imply an\t obligation to facilitate tracing of
\n     such errors  and  malpractices  and  provide  effective
\n     machinery for their detection. This includes an implied
\n     obligation to  give inspection  of the answer papers to
\n     the  interested   person  such  as\t the  examinee.\t The
\n     malpractices involved  in passing off papers written by
\n     one as  that of  others and manipulations and tampering
\n     and the  frauds involved therein, cannot be effectively
\n     detected  and   remedied  unless,\t among\tothers,\t the
\n     examinee himself  is  enabled  to\tinspect\t the  answer
\n     papers. This  is indispensible  even for  verifying the
\n     claim as  to the  presence or  absence of any examinee.
\n     The right\tof inspection  thus is\tthe integral part of
\n     right of  verification  and  obligation  to  trace\t and
\n     correct the  errors as  implied in\t Regulations 102 and\n<\/p><\/blockquote>\n
     104. Doctrine of implied power and obligation and right
\n     and  duties   make\t up  for  the  absence\tof  positive
\n     provisions.\n<\/p><\/blockquote>\n
\t  47. It  is true that such right of inspection does
\n     not seem  to have\tbeen recognised\t under any system of
\n     examination in  India and\tits recognition\t is bound to
\n     unsettle the  age old  practice  followed\tand  notions
\n     entertained. The  decision is  bound to have effects on
\n     examination in several other fields, apart from the one
\n     contemplated by the Board or Universities. Consequences
\n     on administration\talso are  bound to  be far-reaching,
\n     necessitating setting up some additional machinery, and
\n     may prove\tto be  time  consuming\tand  expensive.\t We,
\n     however, find  that such  right of\t inspection has\t now
\n     become indispensible for effectuating the
\n52<\/span>
\n     underlying\t purpose   of  examination.  None  of  these
\n     considerations  appear   to  us   to   be,\t  therefore,
\n     relevant.”<\/p><\/blockquote>\n
     We consider  that the  above approach  made by the High
\nCourt is  totally fallacious  and is vitiated by its failure
\nto follow  the well-established\t doctrine of  interpretation
\nthat the provisions contained in a statutory enactment or in
\nrules\/regulations framed there under have to be so construed
\nas to  be in  harmony with each other and that where under a
\nspecific section  or rule  a particular subject has received
\nspecial treatment,  such special  provision will exclude the
\napplicability of any general provision which might otherwise
\ncover the  said\t topic.\t Regulation  102  (2),\tif  properly
\nconstrued in  the setting in which it occurs, only confers a
\nsuo motu  power on  the Divisional Board to amend the result
\nof the examination in respect of any candidate or candidates
\non its\tbeing found  that such\tresult has  been affected by
\nerror,\tmalpractice,   fraud,  improper\t conduct,  etc.\t The
\n‘error’ referred  to in\t the  said  provision  has,  in\t the
\ncontext, to  be understood  as being  limited  to  an  error
\narising\t in  consequence  of  malpractice,  fraud,  improper
\nconduct or other similar matter of whatsoever nature. We are
\nunable to  understand this provision as conferring any right
\non  an\texaminee  to  demand  a\t disclosure,  inspection  or
\nverification of his answer books or other related documents.
\nAll scope  for doubt  or speculation  in  relation  to\tthis
\nmatter\thas,  however,\tbeen  eliminated  by  the  provision
\ncontained in  Regulation 104  which specifically  deals with
\nthe  subject   of  verification\t  of  marks  obtained  by  a
\ncandidate. Clause (1) of the said regulation states that any
\ncandidate who  has appeared  at the  H.S.C. examination\t may
\napply to  Divisional Secretary\tfor verification  of  marks,
\nparticularly in\t any subject,  but such verification will be
\nrestricted to  check  whether  all  the\t answers  have\tbeen
\nexamined and  whether any  mistake  has\t been  committed  in
\ntotalling of  marks in that subject or in transferring marks
\ncorrectly on  the Ist  cover page of the answer book as well
\nas whether  the supplements  attached to the answer books as
\nmentioned by  the candidates  are in tact. Clause (3) of the
\nsaid Regulation\t imposes  the  further\tlimitation  that  no
\ncandidate shall\t claim or  be entitled to revaluation of his
\nanswer book  or disclosure  or inspection of the answer book
\nor further  documents as  these are  to be  treated  by\t the
\nDivisional Boards  as most  confidential. It is obvious that
\nclauses (1)  and (3)  have to  be read\ttogether and  not in
\nisolation from each other as has apparently been done by the
\nHigh Court.  The right\tof verification\t conferred by clause
\n(1) is\tsubject to  the limitation  contained  in  the\tsame
\nclause that no revaluation of the
\n53<\/span>
\nanswer books  or supplements  shall be\tdone and the further
\nrestriction imposed by clause (3), prohibiting disclosure or
\ninspection of the answer books. The High Court seems to have
\nconstrued the  last portion  of clause\t(3) as implying that
\nthe confidentiality  of the answer book is to be declared by
\nsome order  of the  Divisional Board and it has proceeded to
\nhold that  since no  such order was brought to the notice of
\nthe Court  there was  no basis for treating the answer books
\nas confidential.  In our opinion, this interpretation of the
\nconcluding words  of clause  (3) is  incorrect. What is laid
\ndown therein  is that  the answer  books and other documents
\nare  to\t  be  treated  by  the\tDivisional  Boards  as\tmost
\nconfidential. In  other words  this clause of the regulation
\ncontains a  mandate to\tthe Divisional\tBoards to  treat the
\nanswer book and documents as confidential and lays down that
\nno candidate  shall  be\t entitled  to  claim  disclosure  or
\ninspection of  the said confidential books and documents. We
\nare also  of the opinion that the High Court was in error in
\ninvoking the  ‘doctrine of implied power and obligation’ for
\nthe  purpose   of  holding   that  because   the  right\t  of
\nverification has  been conferred by clause (1) of Regulation
\n104, there  is an  implied power  in the examinees to demand
\ndisclosure  and\t  inspection  and  a  corresponding  implied
\nobligation on  the part\t of the\t Board to  accede to  such a
\ndemand. There  is no  scope at\tall for\t invoking  any\tsuch
\nimplied power or imputing to the regulation-making authority
\nan intention  to confer such power by implication when there
\nis  an\t express  provision   contained\t in  the  very\tsame
\nregulation clause  (3) which  clearly manifests the contrary
\nintention and  states in  categorical terms that there shall
\nbe no claim or entitlement for discolor or inspection of the
\nanswer books.\n<\/p>\n
     The legal\tposition is now well-established that even a
\nbye-law cannot\tbe struck down by the Court on the ground of
\nunreasonableness merely\t because the  Court thinks  that  it
\ngoes further  than  “is\t necessary”  or\t that  it  does\t not
\nincorporate certain  provisions which, in the opinion of the
\ncourt, would  have been fair and wholesome. The Court cannot
\nsay that a bye-law is unreasonable merely because the judges
\ndo not\tapprove of  it. Unless it can be said that a bye law
\nis manifestly unjust, capricious, inequitable, or partial in
\nits operation,\tit cannot be invalidated by the Court on the
\nground of  unreasonableness. The  responsible representative
\nbody  entrusted\t  with\tthe  power  to\tmake  by  laws\tmust
\nordinarily  be\t presumed  to\tknow  what   is\t  necessary,
\nreasonable,  just  and\tfair.  In  this\t connection  we\t may
\nusefully extract  the following\t off-quoted observations  of
\nLord
\n54<\/span>
\nRussell of Killowen in Kruse v. John son,(1)
\n\t  “When the  Court is  called upon  to consider\t the
\n     byelaws of\t public representative\tbodies clothed\twith
\n     the ample authority which I have described, accompanied
\n     by the  checks and safeguards which I have mentioned, I
\n     think the\tconsideration of  such bye-laws\t ought to be
\n     approached from  a different  standpoint. They ought to
\n     be supported if possible. They ought to be, as has been
\n     said, ‘benevolently interpreted’ and credit ought to be
\n     given to  those who  have to  administer them that they
\n     will be reasonable administered.”\n<\/p>\n
\t  “The learned Chief Justice said further that there
\n     may be
\n     ‘cases in\twhich it  would be  the duty of the court to
\n     condemn by-laws made under such authority as these were
\n     made  (by\t a  county  council)  as  invalid  be  cause
\n     unreasonable. But\tunreasonable in\t what sense ? If for
\n     instance, they  were found to be partial and unequal in
\n     their operation  as between  different classes; if they
\n     were manifestly unjust; if they disclosed bad faith; if
\n     they   involved\tsuch   oppressive    or\t  gratuitous
\n     interference with\tthe rights  of those subject to them
\n     as\t could\t find  no  justification  in  the  minds  of
\n     reasonable men,  the court\t might well say, ‘Parliament
\n     never intended  to give  authority to  make such rules;
\n     they are  unreasonable and\t ultra vires.’\tBut it is in
\n     this and  this sense  only, as  I\tconceive,  that\t the
\n     question of  reasonableness  can  unreasonableness\t can
\n     properly be  regarded. A  bye-law is  not\tunreasonable
\n     merely because particular judges may think that it goes
\n     further than  is prudent  or necessary or convenient or
\n     because it\t is not\t accompanied by\t an exception  which
\n     some judges may think ought to be there’.”\n<\/p>\n
We may\talso refer with advantage to the well-known decision
\nof the\tPrivy Council in Slattery v. Naylor (2) where it has
\nbeen laid  down that  when considering\twhether a bye-law is
\nreasonable or  not, the Court would need a strong case to be
\nmade against  it and  would decline  to determine whether it
\nwould have been wiser
\n55<\/span>
\nor more prudent to make the bye-law less absolute or will it
\nhold the   bye-law to be unreasonable because considerations
\nwhich the court would itself have regarded in framing such a
\nbye-law have  been over\t looked or reflected by its framers.
\nThe principles\tlaid down  as aforesaid\t in Kruse v. Johnson
\nand Stattery  v. Naylor\t have been  cited with\tapproval and
\napplied by  this Court\tin Trustees of the Port of Madras v.
\nAminchand Pyarelal & Ors.,<\/a>(1)
\n     As already\t noticed, one of the principal factors which
\nappears to  have weighed  with the  High Court\tis  that  in
\ncertain stray  instances (specific  instances referred to in
\nthe Judgment  are only\tabout three  in number),  errors  or
\nirregularities had  gone unnoticed  in the  past even  after
\nverification  of   the\tconcerned   answer  books  had\tbeen
\nconducted according  to the  existing procedure\t and it\t was
\nonly after  further scrutiny  made either on orders of court
\nor in  the wake\t of contentions\t raised in  petitions  filed
\nbefore a  court that  such  errors  or\tirregularities\twere
\nultimately discovered.\tIn this\t connection we\tconsider  it
\nnecessary to recall the observations made by Krishna Iyer, J
\nin R.  S. Joshi v. Ajit Mills that “a law has to be adjudged
\nfor its\t constitutionality by  the generality  of  cases  it
\ncovers, not  by the freaks and exceptions it martyrs”. It is
\nseen from  the affidavits  that form  part of  the record of
\nthis case  that the  three Divisional  Boards conduct the H.
\nS.C. examinations  twice  every\t year,\ti.e.  in  March\t and
\nOctober every  year. The  number of  candidates who appeared
\nfor the\t H.S.C. examination  in March  1980 was\t 1, 15, 364.
\nLikewise, the S.S.C. Public examination is also conducted by
\nthe Divisional\tBoards twice during the year, and the number
\nof candidates appearing in the said examination is very much
\nlarger than  the number\t appearing in the H.S.C examination.
\nFrom the  figures furnished  by the  Board, it\tis seen that
\nthere is  a progressive\t increase from\tyear to\t year in the
\nnumber\tof   candidates\t appearing   in\t both  these  public
\nexaminations. In  March 1980,  a total\tnumber of 2, 99, 267
\nhad appeared  in the  S.S.C.  examination.  Considering\t the
\nenormity of  the task  of evaluation discharged by the Board
\nthrough the examiners appointed by it, it is really a matter
\nfor  satisfaction   that  proved  instances  of\t errors\t and
\nirregularities have  been so  few as  to be counted on one’s
\nfingers. Instead  of viewing  the matter  from this  correct
\nperspective, we\t regret to find the fact that the High Court
\nlaid undue and exaggerated stress on some stray instance and
\nmade it\t a basis for reaching the conclusion that reasonable
\nfair play to the candidates can be assured only if
\n56<\/span>
\nthe right  of disclosure  and personal inspection is allowed
\nto the\tcandidates as  part of\tthe process of verification.
\nThis approach  does not\t appeal to  us as legally correct or
\nsoud. We  do  not  find\t it  possible  to  uphold  the\tview
\nexpressed by  the High\tCourt that  clause (3) of Regulation
\n104 which  disentitles the examinees to claim disclosure and
\ninspection of  the answer books and declares those documents
\nto be confidential is “defeasive of the corrective powers of
\nthe Board  under Regulations  102 and  104 and\tthe right of
\nverification under Regulation 104 (1) as also destructive of
\nthe confidence\tof public in the efficacy of the system. The
\nreasons\t which\t prompted  the\t High  Court  to  reach\t the
\naforementioned conclusion  are to  be found in the following
\nobservations  occurring\t in  para  33  of  the\tJudgment  of
\nDeshpande, J:\n<\/p>\n
\t  “33. On  the other  hand, access of the student to
\n     the answer\t books would enable him to verify (1) if the
\n     papers are his own. and (2) supplementary answer papers
\n     are duly  tagged, and (3) all answers are evaluated and
\n     (4) totals are correct, and (5) marks of his practicals
\n     or internal  assessments are  included therein  and (6)
\n     and his  adverse results  are not\tdue to\tany error or
\n     manipulations. This  will at  once not  only  make\t the
\n     verification process under Regulation 104 (1) effective
\n     and real,\tbut facilitate Board’s exercising its powers
\n     to trace  errors and  malpractices and amend the result
\n     preventing frustration  of the students. The purpose of
\n     the  Act  can  be\tserved\tthus  better  by  permitting
\n     inspection than  by preventing  it. In other words, the
\n     confidentiality, rather  than serve  any purpose of the
\n     Act goes to defeat it firstly by making the functioning
\n     of the  system dependent  entirely on  the staff,\tand,
\n     secondly by  making process  under Regulations 102 (3),
\n     (4) and (104) (1) ineffective for want of assistance of
\n     the examine himself.”<\/p><\/blockquote>\n
     In making\tthe above  observations, the  High Court has
\nignored the  cardinal principle\t that it  is not  within the
\nlegitimate domain  of the  Court to  determine\twhether\t the
\npurpose of  a statute  can be  served better by adopting any
\npolicy different  from\twhat  has  been\t laid  down  by\t the
\nlegislature  or\t  its  delegate\t  and  to   strike  down  as
\nunreasonable  a\t  bye-law  (assuming   for  the\t purpose  of
\ndiscussion that the impugned regulation is a bye-law) merely
\non the\tground that  the policy\t enunciate therein  does not
\nmeet with the approval of
\n57<\/span>
\nthe   court   in   regard   to\t its   efficaciousness\t for
\nimplementation of the object and purposes of the Act.\n<\/p>\n
     In the  light of foregoing discussion, we hold that the
\nconclusion  recorded   by  the\tCourt  that  clause  (3)  of
\nRegulation 104\tis liable to be struck down on the ground of
\nunreasonableness is totally incorrect and unsustainable.\n<\/p>\n
     That takes\t us to\tthe question concerning the validity
\nof the\tprovision  contained  in  clauses  (1)\tand  (3)  of
\nRegulation 104,\t which provides\t that no  revaluation of the
\nanswer books  or supplements  shall  be\t done  and  that  no
\ncandidate shall\t claim or be entitled to claim a revaluation
\nof his\tanswer books. This aspect has been dealt with in the
\nseparate judgment  of the Division Bench delivered by Mohta,
\nJ. On  perusal of  the judgment,  it will  be seen  that the
\nentire reasoning therein is based on the conclusion recorded
\nin the judgment of Deshpande, J delivered in the first group
\nof cases,  that the  provision contained  in clauses (1) and
\n(3)  of\t  Regulation  104  prohibiting\tthe  disclosure\t and
\ninspection of  answer books  is liable\tto be struck down on
\nthe ground  of unreasonableness\t as well as on the ground of
\nits being  ultra vires\tthe scope  of the  rule making power
\nconferred by  Section 36  (1) of the Act. Making this as the
\nstarting point\tof his\treasoning, Mohta, J has proceeded to
\nobserve that  the “logical  end of permitting inspection and
\ndisclosure of  answer books and other documents is to permit
\nrevaluation” and  that “no  useful purpose will be served by
\nhaving inspection  and disclosure  in case  further right of
\nrevaluation is\tdenied”. Based\ton  such  an  approach,\t the
\nlearned Judge  has proceeded  to state\tthat there  was\t “no
\njustification  whatsoever  to  restrict\t the  obligation  of
\ncorrecting of  mistake\tonly  to  verification\tand  exclude
\nrevaluation  from   the\t operation   of\t  Regulation   102.”
\nAccordingly, it\t was  held  that  clauses  (1)\tand  (3)  of
\nRegulation 104\tinsofar as  they prohibit  revaluation,\t are
\nalso void on the ground of unreasonableness.\n<\/p>\n
     As already noticed, the other learned Judge (Deshpande,
\nJ) has\twritten a  separate short  judgment in this group of
\ncases expressing  his doubts and reservations concerning the
\ncorrectness of\tthe conclusion\treached by his colleague but
\nhe has\tfinally wound  up his  judgment\t stating  that\teven
\nthough\twe   was  diffident  of\t spelling  out\ta  right  of
\nrevaluation from  any of  the provisions  contained  in\t the
\nregulations he\twould prefer  to  agree\t with  the  judgment
\nprepared by  Mohta, J “rather than allow my views to prevail
\nand dissent”.  Having regard  to the  substantial nature and
\ngeneral importance of
\n58<\/span>
\nthe question  and the repercussions that would inevitably be
\nproduced  by   the  recognition\t  of  the  right  to  demand
\nrevaluation in\tpublic examinations  of every kind conducted
\nby Universities,  School Education  Boards and\teven  bodies
\nlike the Union and State Public Service Commission, it would
\nhave  been  much  more\tappropriate  if\t the  learned  Judge
\n(Deshpande. J)\thad independently  discussed the question in
\nall its aspects in accordance with his own light or referred
\nthe matter to a larger Bench or to a third Judge as the case
\nmay be\tif he  felt that the view propounded in the judgment
\nprepared by  his  colleague  was  of  doubtful\tcorrectness.
\nHowever that  may be,  we have already held that the reasons
\nstated by  the Division\t Bench in  its Judgment in the first
\ngroup of cases for holding that clause (3) of Regulation 104
\ninsofar as  it prohibits disclosure and inspection of answer
\nbooks and  treating them  as confidential documents is ultra
\nvires  on   the\t ground\t of  its  being\t in  excess  of\t the
\nregulation-making power of the Board and is also void on the
\nground\t of   unreasonableness\t are   all   incorrect\t and
\nunsustainable.\tThe  validity  of  the\tprohibition  against
\ndisclosure and inspection having been thus upheld by us, the
\nentirety of  the reasoning  contained  in  the\tjudgment  of
\nMehta.\tJ   in\tsupport\t  of  his   conclusion\tinvalidating
\nprohibition against revaluation contained in clauses (1) and
\n(3) of\tRegulation loses  its foundation. The view expressed
\nby the\tlearned Judge  that Regulation 102 (2) which confers
\non the\tBoard a suo moto power of amending the results where
\nit is  found that  such a  result has  been affected  by any
\nerror, malpractice,  fraud, improper  conduct, etc., Will be
\nrendered nugatory  and ineffective  by\tthe  prohibition  on
\nrevaluation is\tfallacious and unsound. While discussing the
\nscope of  the said  regulation, we have pointed out that its
\npurpose and effect is only to confer a suo moto power on the
\nBoard to  correct errors  in cases where irregularities like
\nmalpractices, misconduct,  fraud, etc.\tare found out and it
\ndoes not  confer any  right on\tthe examinees  to demand any
\ncorrection of  the results. In the scheme of the regulations
\nafter the  publication of  the results, the only right which
\nthe examinees  have in relation to this matter is to ask for
\na verification of the results under clause (1) of Regulation
\n104 and\t the scope  of such  verification is  subject to the
\nlimitations imposed  in the said clause as well as in clause
\n(3) of the very same regulation.\n<\/p>\n
     We are  unable to\tagree with the further reason stated
\nby the\tHigh Court  that since “every student has a right to
\nreceive fair  play in  examination and get appropriate marks
\nmatching his  performance” it  will be a denial of the right
\nto such fair play if there is to be a
\n59<\/span>
\nprohibition on\tthe right to demand revaluation and unless a
\nright to   revaluation\tis recognised and permitted there is
\nan infringement of rules of fair play. What constitutes fair
\nplay depends  upon the\tfacts and  circumstances relating to
\neach particular\t given situation.  If it is found that every
\npossible  precaution   has  been  taken\t and  all  necessary
\nsafeguards  provided   to  ensure   that  the  answer  books
\ninclusive of  supplements are  kept in safe custody so as to
\neliminate the  danger of  their being tampered with and that
\nthe evaluation\tis done\t by the\t examiners applying  uniform
\nstandards with\tchecks and  cross-checks at different stages
\nand that  measures for\tdetection of  malpractice, etc. have
\nalso been  effectively adopted, in such cases it will not be
\ncorrect on  the part  of  the  Courts  to  strike  down\t the
\nprovision prohibiting  revaluation on  the  ground  that  it
\nviolates the  rules of fair play. It is unfortunate that the
\nHigh Court  has not  set out  in detail in either of its two
\njudgments the  elaborate procedure laid down and followed by
\nthe Board  and the Divisional Boards relating to the conduct
\nof the\texaminations, the evaluation of the answer books and
\nthe compilation\t and announcement  of the  results. From the
\naffidavit filed on behalf of the Board in the High Court, it
\nis seen\t that from  the initial stage of the issuance of the
\nhall tickets  to the  intending candidates  right  upto\t the
\nannouncement of\t the results,  a  well-organised  system  of
\nverification, checks  and counter-checks has been evolved by
\nthe Board  and every  step has\tbeen taken  to eliminate the
\npossibility of\thuman error on the part of the examiners and
\nmalpractices on\t the  part  of\texaminees  as  well  as\t the
\nexaminers in  an effective  fashion. The examination centres
\nof the\tBoard are  spread all over the length and breadth of
\neach  Division\t and  arrangements  are\t made  for  vigilant
\nsupervision under  the overall supervision of a Deputy Chief
\nConductor  in\tcharge\tof   every  sub-centre\tand  at\t the
\nconclusion of  the time\t set for  examination in  each paper
\nincluding the  main answer book all the answer books and the
\nsupplements have to be tied up by the candidate securely and
\nreturned to  the Supervisor. But before they are returned to
\nthe Supervisor,\t each candidate\t has to\t write out the title
\npage of main answer books in the cages provided for the said
\nparticulars, the  number of supplements attached to the main
\nanswer book.  The, Supervisor  is enjoined to verify whether
\nthe number  so written\ttallies with  the actual  number  of
\nsupplements, handed  over by the candidate together with his
\nmain answer  book. After  the return of all the answer books
\nto the\tDeputy Chief  Conductor, a  tally is  taken  of\t the
\nanswer looks including supplements used by the candidates by
\nthe Stationery Supervisor who is posted by the Board at
\n60<\/span>
\neach sub-centre.  This enables\tthe supervisory\t staff at  a
\nsub-centre to  verify and  ensure that\tall answer books and
\nsupplements issued to the candidates have been turned in and
\nreceived by the supervisory staff. At this stage of checking
\nand double-checking,  if any seat number has been duplicated
\non the\tanswer books  by mistake  or by\t way  of  deliberate
\nmalpractice  it\t  can  be  easily  detected  and  corrective
\nmeasures taken\tby the\tDeputy Chief  Conductor or the Chief
\nConductor. The\tanswer books  are then\tsent by\t the  Deputy
\nChief Conductor to the Chief Conductor in charge of the main
\ncentre. He  sorts out  the answer  books  according  to\t the
\ninstructions issued  by the  Board and\tsends  them  to\t the
\nexaminers whose\t names had  been furnished in advance except
\nin the\tcase of\t the science  subjects, namely, “mathematics
\nand statistics,\t physics, chemistry and biology”. The answer
\nbooks in  the science  subjects are  forwarded by  the Chief
\nConductor under\t proper\t guard\tto  camps  in  Pune  already
\nnotified to  the Chief\tConductors.  The  further  procedure
\nfollowed in  relation to  the valuation\t of the answer books
\nhas been  explained in\tparagraphs 22  to 26  of the counter
\naffidavit dated\t 10th July  1980 filed\tin the High Court by
\nthe  Joint   Secretary\tto  the\t Pune  Divisional  Board  of
\nSecondary Education.  We do  not consider  it  necessary  to
\nburden this  judgment  with  a\trecapitulation\tof  all\t the
\ndetails furnished  in those paragraphs, and it would suffice
\nto state  that\tthe  procedure\tevolved\t by  the  Board\t for
\nensuring fairness  and accuracy\t in evaluation of the answer
\nbooks has  made the  system as fool proof as can be possible
\nand it\tmeets with  our entire\tsatisfaction  and  approval.
\nViewed against\tthis background,  we do not find it possible
\nto agree with the views expressed by the High Court that the
\ndenial of  the right  to demand\t a revaluation constitutes a
\ndenial of fair play and is unreasonable. The Board is a very
\nresponsible body.  The candidates have taken the examination
\nwith full  awareness of\t the  provisions  contained  in\t the
\nRegulations and\t in the\t declaration made  in  the  form  of
\napplication for\t admission  to\tthe  examination  they\thave
\nsolemnly stated\t that they  fully  agree  to  abide  by\t the
\nregulations issued  by the Board. In the circumstances, when
\nwe find\t that all safeguards against errors and malpractices
\nhave been  provided for,  there cannot\tbe said\t to  be\t any
\ndenial of  fair play  to the  examinees\t by  reason  of\t the
\nprohibition against asking for revaluation.\n<\/p>\n
     The High  Court has  relied  upon\tthe  fact  that\t the
\nUniversity  of\tBombay\tand  some  other  Universities\thave
\nrecently made  provisions permitting  candidates  to  demand
\nrevaluation. In our opinion, this
\n61<\/span>
\nhas little  relevance for  the purpose of deciding about the
\nlegal validity\tof the\timpugned regulations  framed by\t the
\nBoard.\tWe   do\t not  know  under  what\t circumstances,\t the
\nUniversity of Bombay has decided to recognise a right in the
\nexaminees to  demand a\trevaluation. As\t far as the Board is
\nconcerned it  has set  out  in\tthe  counter  affidavit\t the
\nenormity of the task with which it is already faced, namely,
\nof  completing\t twice\tduring\teach  year  the\t process  of
\nevaluation and\trelease\t of  results  of  some\t3  lakhs  of
\ncandidates appearing  for the  S.S.C and H.S.C. examinations
\nto be  held in\tan interval  of only  a few  months from one
\nanother. If the candidates are at all to be given inspection
\nof their  answer books\tor the\trevaluation  of\t the  answer
\npapers is  to be done in the presence of the candidates, the
\nprocess is  bound to be extremely time consuming and if such
\na request  is made  by\teven  about  ten  per  cent  of\t the
\ncandidates who\twill be\t 30,000 in  number, it would involve
\nseveral thousands  of man  hours and  is bound\tto throw the
\nentire system  out of  gear. Further,  it is  in the  public
\ninterest that the results Public examinations when published
\nshould have  some finality  attached to them. If inspection,
\nverification  in   the\tpresence   of  the   candidates\t and
\nrevaluation are\t to be\tallowed as  of right, it may lead to
\ngross and  indefinite uncertainty, particularly in regard to
\nthe relative ranking, etc of the candidates, besides leading
\nto utter  confusion on account of the enormity of the labour
\nand time involved in the process.\n<\/p>\n
     As pointed out by a Constitution Bench of this Court in
\nFatehchand Himmatlal  and Ors. v. State of Maharashtra,<\/a> etc.
\n“the test  of reasonableness is not applied in vacuum but in
\nthe contest  of life’s\trealities”, 1977 (2) SCR 828. If the
\nprinciple laid\tdown by\t the High Court is to be regarded as
\ncorrect,  its\tapplicability  cannot\tbe   restricted\t  to
\nexaminations conducted\tby School  Educational Boards  alone
\nbut  would  extend  even  to  all  competitive\texaminations
\nconducted by the Union and State Public Service Commissions.
\nThe resultant  legal position  emerging from  the High Court
\nJudgment is  that every\t candidate who\thas appeared for any
\nsuch examination  and who  is dissatisfied  with his results
\nwould, as  an inherent\tpart of\t his right to ‘fair play’ be
\nentitled to  demand a  disclosure and personal inspection of
\nhis answer scripts and would have a further right to ask for
\nrevaluation of his answer papers. The inevitable consequence
\nwould be  that there  will be  no certainty at all regarding
\nthe results of the competitive examination for an indefinite
\nperiod of  time until  all such\t requests have been compiled
\nwith and  the results  of the  verification and\t revaluation
\nhave been brought into account,
\n62<\/span>
\n     Far from advancing public interest and fair play to the
\nother candidates  in general, any such interpretation of the
\nlegal position would be wholly defeasive of the same. As has
\nbeen repeatedly\t pointed out by this court, the Court should
\nbe extremely  reluctant to  substitute its  own views  as to
\nwhat is\t wise, prudent\tand proper  in relation\t to academic
\nmatters in  preference to  those formulated  by professional
\nmen possessing\ttechnical expertise  and rich  experience of
\nactual day-to-day  working of  educational institutions\t and
\nthe departments\t controlling them.  It will  be wholly wrong
\nfor the\t court to  make a  pedantic  and  purely  idealistic
\napproach to  the problems  of this nature, isolated from the
\nactual realities  and grass  root problems  involved in\t the
\nworking of  the system\tand unmindful  of  the\tconsequences
\nwhich would  emanate if\t a purely idealistic view as opposed
\nto a  pragmatic one  were to  be propounded.  It is  equally
\nimportant that\tthe Court  should also,\t as far as possible,
\navoid  any   decision  or   interpretation  of\ta  statutory
\nprovision, rule\t or bye-law  which  would  bring  about\t the
\nresult of rendering the system unworkable in practice. It is
\nunfortunate that this principle has not been adequately kept
\nin mind by the High Court while deciding the instant case.\n<\/p>\n
     In the  light of the foregoing discussion, we hold that
\nthe High Court was in error in striking down clauses (1) and
\n(3) of\tRegulation 104 as illegal, unreasonable and void. We
\nuphold the validity of these provisions.\n<\/p>\n
     In the result, both the Judgments of the High Court are
\nset aside  and the  two groups\tof Writ Petitions which were
\nallowed under  those judgments\twill  now  stand  dismissed.
\nThese appeals  are accordingly\tallowed. The  appellant will
\nget its costs from the respondents.\n<\/p>\n
S.R.\t\t\t\t\t    Appeals allowed.\n63<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Maharashtra State Board Of … vs Paritosh Bhupesh Kumar Sheth Etc on 17 July, 1984 Equivalent citations: 1984 AIR 1543, 1985 SCR (1) 29 Author: V B Eradi Bench: Eradi, V. Balakrishna (J) PETITIONER: MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARYEDU Vs. RESPONDENT: PARITOSH BHUPESH KUMAR SHETH ETC. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134058","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMaharashtra State Board Of ... vs Paritosh Bhupesh Kumar Sheth Etc on 17 July, 1984 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maharashtra-state-board-of-vs-paritosh-bhupesh-kumar-sheth-etc-on-17-july-1984\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maharashtra State Board Of ... vs Paritosh Bhupesh Kumar Sheth Etc on 17 July, 1984 - 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