Sahiti & Ors. Vs.
Chancellor, NTR. Univ. of Health Sc.& Ors. [2008] INSC 1817 (22 October
2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 6202 OF 2008 (Arising
out of SLP(C) No.13424 of 2007) Sahiti and others ... Appellants Versus The
Chancellor, Dr. N.T.R. University Of Health Sciences and others ... Respondents
With Civil Appeal Nos.6203,6204, 6206-6211 and 6212 OF 2008 (Arising out of
SLP(C) Nos.13525/2007, 14281/2007, 18798-18803/2007 and 21051/2007)
J.M. Panchal, J.
1.
Leave
granted in all the special leave petitions.
2.
The
instant appeals are directed against judgment dated July 20, 2007 rendered by
the Division Bench of High Court of Judicature of Andhra Pradesh at Hyderabad
in Writ Appeal No. 402 of 2007 and other cognate appeals by which the common
judgment dated May 1, 2007, rendered by the learned single Judge of the High
Court upholding action of the Vice-Chancellor of Dr. N.T.R. University of
Health Sciences, Vijaywada (for short "the University") of
re-verification/re-valuation/re- examination of answer scripts of 436 students,
who had failed in first year MBBS examination during academic year 2006-07, is
set aside and the decision of the Executive Council to cancel the result of re-verification
of answer scripts and asking 294 students, who were declared passed on
re-verification of answer scripts to re- appear in examination of first year
MBBS, is upheld.
3.
The
appellants, who are students, joined first year MBBS course for the academic
year 2006-07 in different 3 private medical colleges which are affiliated to
the University, Vijaywada. They appeared in the first year M.B.B.S. examination
held from September 5, 2006 to October 10, 2006. The results of the examination
were declared on December 2, 2006. The record shows that in all 4076 students
had appeared in examination out of whom 992 students were declared failed in
different papers. In the results published by the university, it was
specifically mentioned that such of those students who wanted to attend
personal identification for re-totalling of their theory answer scripts should
submit their applications on or before December 13, 2006. This personal
identification was meant to enable the students to apply for re-totalling of
their answer scripts. Out of the 992 students who had failed, 436 students
applied for re-totalling of their respective answer scripts. When the process
of re-totalling was going on, some representations were addressed to His
Excellency, the Governor, who is Chancellor of the university, and the Hon'ble
Minister for Medical and Health as well the Vice- 4 Chancellor of the
university on behalf of the students in the name of MBBS First Year Students'
Parents' Association with complaints of improper and under valuation of answer
scripts. In the complaints, it was stated that answer scripts of three papers
i.e. Anatomy, Physiology and Bio-Chemistry were not properly valued and the
valuation was harsh whereas some questions in Physiology were out of syllabus
and because of all these factors, the percentage of students who had cleared
the examination was low. It is the case of the students that, the
Vice-Chancellor, after listening to their grievances, assured that he would
verify the answer books and if necessary, get them re-examined. Having regard
to the nature of complaints received, the Vice-Chancellor constituted a
committee of three expert professors on January 3, 2007 for
re-verification/re-valuation/re- examination of answer scripts. The Committee
undertook re-verification of the answer scripts and recorded marks on printed
slips of papers which were stapled at the top of answer scripts. On the basis
of re- 5 verification made by the Committee appointed by the Vice-Chancellor,
the University declared revised results on February 2, 2007 and 294 students
out of 436 students, who had applied for re-totalling, were declared
"Pass". The action taken by the Vice-Chancellor of re- totalling and
re-verification of the answer sheets of First Year M.B.B.S. examination held in
September/October, 2006 was placed before Executive Council for its
ratification. The matter was considered by Executive Council and the Council
had approved the action taken by the Vice-Chancellor. The revised results were
sent to the Principals of medical colleges. Subsequent to the declaration of
the results, after re-valuation His Excellency, the Governor of the State, as
well as the Minister for Medical, Health and Family Welfare and Vice-Chancellor
of the University received communications and complaints stating that
irregularities were committed in the process of re- verification. Because of
the controversy generated in the media, His Excellency the Governor forwarded the
6 complaints received by him to the Executive Council of the University for appropriate
action. A meeting of the Executive Council of the University was convened to
consider the action of re-totaling and re-verification of answer scripts
relating to First Year M.B.B.S. examination held in September/October, 2006.
The Executive Council resolved to ask the Government of Andhra Pradesh to
constitute a high level committee to go into the circumstances under which
re-verification of answer sheets was undertaken and find out whether any
irregularities had taken place. The Executive Council further resolved to
withhold declaration of the revised results of First Year M.B.B.S. course till
the enquiry report was submitted and give intimation of the same to the
Principals of medical colleges concerned.
Accordingly, by
letter dated February 2, 2007 the Principals of medical colleges were informed
not to give effect to the results obtained on re-verification of answer scripts
of First Year M.B.B.S. examination. In pursuance to the resolution of Executive
Council, the University 7 twice requested the Andhra Pradesh Government to
constitute a high level committee but the Government did not oblige the
University. Meanwhile, petitions were filed in High Court by the beneficiaries
of the re- valuation of answer scripts seeking a direction to permit them to
attend the second year M.B.B.S. course. The request made by the Registrar to
the Government to constitute a high level committee to examine the whole issue
was not acceded to but the Government referred the matter to the Law Department
and Medical Department of the State. The Medical Department did not agree with
the action of the Vice-Chancellor.
Ultimately the Chief
Secretary sought the opinion of the learned Advocate General of the State in
the matter who, by his letter dated 29-03-07, opined that the decision of
Vice-Chancellor permitting re-valuation of answer scripts was not in accordance
with the provisions of law/procedure. According to the learned Advocate
General, merely because certain representations/complaints were received from
the 8 students/parents of the students, the Vice-Chancellor ought not to have
ordered re-correction of answer scripts, more particularly, when there is no
provision to do so in the Act. The learned Advocate General expressed the
opinion that the University, being an autonomous body, there was no necessity
for referring the matter to Government for the purpose of enquiring into the
whole issue and, therefore, the very reference/request made by the University
asking the Government to probe into the matter was not in accordance with the
proviso to Section 12(3) of the N.T.R. University of Health Sciences Act 1986
(`the Act' for short).
In view of the
opinion of the learned Advocate General, the meeting of the Executive Council
was convened on April 2, 2007. The Vice-Chancellor informed other members of
Executive Council that re- valuation of answer scripts was ordered because of
the pressure from the students who had failed and their parents. Having regard
to the facts of the case, the 9 Executive Council agreed with the opinion of
learned Advocate General and unanimously cancelled the whole process of
re-valuation. The Executive Council was of the opinion that opportunity should
be given to the failed students to re-appear in the examination and, therefore,
it directed the students who had failed in September/October 2006 examination
to reappear in the examination which was scheduled to take place on April 25,
2007.
4.
The
students and their parents were of the opinion that the Executive Council was
not justified in cancelling the whole process of re-valuation, which was
undertaken pursuant to the order of the Vice-Chancellor nor the Executive
Council was justified in asking the students to re-appear in first year MBBS
examination, which was scheduled to be held on April 25, 2007. Therefore, they
invoked extraordinary jurisdiction of the High Court under Article 226 of the
Constitution by filing Writ Petition No. 8658 of 2007 and other batch of
petitions.
5.
The
learned single Judge of the High Court was of the opinion that the
Vice-Chancellor had power under Section 12(2) of the Act, to appoint committee
for re- verification of the answer scripts of the students and in the absence
of any express power conferred on the Executive Council or the Academic
Council, the Executive Council was not justified in cancelling the whole
process undertaken for re-verification at the behest of the Vice-Chancellor. In
view of above mentioned findings, the learned single Judge allowed the writ
petitions filed by the students vide judgment dated May 1, 2007.
6.
Feeling
aggrieved, the Registrar of the University filed Writ Appeal No. 402 of 2007
and other cognate appeals. The Division Bench of the High Court took the view
that the Vice-Chancellor of the University had no 11 jurisdiction under Section
12(2) of the Act to order re- verification of the answer scripts of the
students and, therefore, the Executive Council was justified in cancelling the
whole process of re-valuation as well as directing the students to re-appear in
first year MBBS examination, which was scheduled to take place on April 25,
2007. In view of these conclusions, the Division Bench of the High Court
allowed the writ appeals filed by the Registrar of the University giving rise
to the instant appeals.
7.
This
Court has heard the learned counsel for the parties at length and in great
detail. This Court has also taken into consideration the documents forming part
of the appeals.
From the record of
the case it is evident that in all, 4076 students had appeared in first year
MBBS examination, which was held between September 5, 2006 and October 10,
2006. The results of the examination were declared on December 2, 2006 and 992
students 12 were declared failed in different papers. Out of 992 students, who
were declared failed, 436 students had applied for re-totalling of the marks
assigned by the examiners in three different papers. When this process of
re-totalling was going on, some representations were submitted to the
University and Vice-Chancellor on behalf of the students in the name of MBBS
First Year Students' Parent's Association with complaints of improper and under
valuation of answer scripts. The record shows that Vice-Chancellor directed
re-verification of the answer scripts. On January 3, 2007 the Vice- Chancellor
constituted a committee of three professors for re-verification of answer
scripts. The Committee undertook re-verification and recorded marks on the
printed slips of papers stapled at the top of the answer scripts. On the basis
of the re-verification undertaken by the Committee constituted by the
Vice-Chancellor, the University declared revised results on February 2, 2007 by
which 294 students out of 436 students, who had applied for re-totalling, were
declared "Pass".
13 Subsequently,
highest authorities of the University received communications and complaints
that irregularities were committed in the process of re-verification. In the
backdrop of the complaints, the matter was placed before the Executive Council
for considering the question whether the action taken for the re-verification
of the answer scripts by the Vice- Chancellor of the University was valid. The
Vice- Chancellor agreed before the Executive Council that he had ordered
re-verification under pressure and coercion from the students and their parents.
Having regard to the facts of the case, the Executive Council did not approve
the action of the Vice-Chancellor directing re- verification of the answer
scripts and cancelled the whole process of re-verification. The Executive
Council was further of the opinion that opportunity should be given to the
failed students to re-appear in examination and, therefore, it directed the
students, who had failed, to re- appear in the first year MBBS examination,
which was scheduled to be held on April 25, 2007.
8.
The
Division Bench of the High Court has set aside the judgment of the learned
single Judge on the ground that the Vice-Chancellor of the University had no
power to order re-verification of the answer scripts. Section 12 (2) of the Act
reads as under: - "The Vice-Chancellor shall be the Principal executive
and academic officer of the University and shall exercise general supervision
and control over the affairs of the University and give effect to the decisions
of all the authorities of the University."
Sub-section (3) of
Section 12 provides that the Vice- Chancellor may, if he is of opinion that
immediate action is necessary on any matter, exercise any power conferred on
any authority of the University by or under the Act and shall report to such
authority the action taken by him on such matter. The proviso to sub-Section
(3) stipulates that if the authority concerned is of opinion 15 that such
action ought not to have been taken, it may refer the matter to the Chancellor
whose decision thereon shall be final.
9.
A
conjoint and meaningful reading of the provisions of Section 12(2) of the Act
with Section 12(3) of the Act makes it evident that the Vice-Chancellor has
power to take appropriate action relating to the affairs of the University,
which includes conduct of examination also. The Vice-Chancellor is the
conscious keeper of the University. He is the principal executive and academic
officer of the University. He is entrusted with the responsibility of overall
administration of academic as well as non-academic affairs. For these purposes,
the Act confers both express and implied powers on the Vice-Chancellor. Section
30 of the Act confers power on the Executive Council to make statutes.
In exercise of that
power, the Executive Council has framed the Statutes of University. Clause 1 of
the 16 Statutes deals with the status of the Vice- Chancellor and his powers
and duties. Sub-Clause (3) of Clause 1 of the Statues provides that it shall be
the duty of the Vice-Chancellor to see that the provisions of this Act, the
Statues, Ordinances and Regulations are duly observed and he may exercise all
powers necessary for this purpose. Thus the express powers include among
others, the duty to ensure that the provisions of the Act, Statutes, Ordinances
and Regulations are observed by all concerned. The wordings of Sub-Clause (3)
of Clause 1 of the Statute shows that a residuary power which is required to be
exercised, in order to see that the provisions of the Act, the Statutes,
Ordinances and Regulations are duly observed, is vested in the Vice-Chancellor.
The Vice-Chancellor has right to regulate the work and conduct of officers and
other employees of the University. He has also emergency powers to deal with
any untoward situation. The power conferred under 17 Section 12(2) and 12(3)
is indeed significant. If the Vice-Chancellor believes that a situation calls
for immediate action, he can take such action as he thinks necessary though in
the normal course he is not competent to take that action. However, he must
report to the concerned authority or body, who would, in the ordinary course,
have dealt with the matter. That is not all. His pivotal position as the
principal executive officer also carries with him certain implied powers. It is
the magisterial power which is plainly to be inferred. This power is essential
for him to maintain domestic discipline in the academic and non-academic
affairs. In a wide variety of situations in the relationship of tutor and pupil
he has to act firmly and promptly to put down indiscipline and malpractice. As
per the Statutes of university, the Vice-Chancellor is whole-time Officer of
the university and by virtue of his office, is a Member and Chairman of the
Executive Council and of the Academic Council. He has power to 18 convene
meetings of the Executive Council and the Academic Council.
The plea that there
is absence of specific provision enabling the Vice-Chancellor to order
re-evaluation of the answer scripts and, therefore, the Judgment impugned
should not be interfered with, cannot be accepted. Re- evaluation of answer
scripts in the absence of specific provision is perfectly legal and
permissible. In such cases, what the Court should consider is whether the
decision of the educational authority is arbitrary, unreasonable, mala fide and
whether the decision contravenes any statutory or binding rule or ordinance and
in doing so, the Court should show due regard to the opinion expressed by the
authority. In Board of Another (2004) 13 SCC 383, the respondent No.1, i.e.,
Pravas Ranjan Panda appeared in the High School Certificate Examination, 2003
as a regular candidate.
He passed the said
examination securing about 90% 19 marks. He filed a Writ Petition under
Article 226 of the Constitution alleging that he had answered all the questions
correctly without committing any mistake and, therefore, deserved full marks in
each paper, but due to carelessness and negligence of the Board in appointing
inexperienced and unqualified examiners in certain papers, low marks had been
awarded to him due to which he lost his chance of being within the first ten
examinees in the HSC Examination, 2003. A prayer was made for re-evaluation of
his answer book. The High Court disposed of the petition with a direction to
the Board to scrutinize and recheck the answer scripts of examinees securing
90% and above marks in aggregate in HSC Examination 2003 and if there was any
change or variation in the marks the petitioner should be informed accordingly.
The candidates secured less than 90% of marks in aggregate who had applied for
rechecking and readdition of marks in certain answer papers had to be
considered in accordance with the resolution of Board for rechecking of marks.
20 A review petition
was subsequently filed by the Board wherein it was submitted that the Board
shall face immense difficulties in scrutinizing and examining all answer sheets
after publication of the results. It was also stated that 217 examinees had
secured 90% and above marks in the examination and 27 examiners of the status
of Chief Examiner would be required for re- examination of the answer books and
some more examiners would be necessary to examine the subject of third
language. However, the review petition was dismissed. In appeals the Supreme
Court noticed that the High Court, though observed that the writ petitioner who
had taken the examination was hardly a competent person to assess his own merit
and on that basis claim re-evaluation of papers, but issued the aforesaid
direction in order to eliminate the possibility of injustice on account of
marginal variation in the marks. It was admitted before the Supreme Court that
the regulation of the Board of Secondary education, Orissa did not make any
provision of re-evaluation of answer books of the 21 students. The Supreme
Court was of the opinion that the question whether in absence of any provision
to that effect an examinee is entitled to ask for re-evaluation of his answer
books was examined by the Supreme Court Public Service Commission (2004) 6 SCC
714. It was noticed by the Supreme Court that in the said decision it was held
that in absence of rules providing for re- evaluation of answer books no
direction should be issued because a direction for re-evaluation of the answer
books would throw many problems and in the larger public interest such a
direction must be avoided. Therefore, the Supreme Court expressed the opinion
that the order of the High Court directing re-evaluation of the answer books of
all the examinees securing 90% or above marks was clearly unsustainable in law
and set aside the same.
The above decision
deals with the right of the student or candidate to claim
re-examination/re-evaluation of his answer sheet and the power of the High
Court to order revaluation of answer sheets. It does not deal with the 22
power of the Board to order re-evaluation of answer books if factual scenario
so demands. Award of marks by an examiner has to be fair and considering the
fact that re-evaluation is not permissible under the Statute at the instance of
candidate, the examiner has to be careful, cautious and has the duty to ensure
that the answers are properly evaluated. Therefore, where the authorities find
that award of marks by an examiner is not fair or that the examiner was not
careful in evaluating the answer scripts re-evaluation may be found necessary.
There may be several instances wherein re- evaluation of the answer scripts may
be required to be ordered and this Court need not make an exhaustive catalogue
of the same. However, if the authorities are of the opinion that re-evaluation
of the answer scripts is necessary then the Court would be slow to substitute
its own views for that of those who are expert in academic matters. Under the
circumstances the plea advanced on behalf of the respondents that
Vice-Chancellor of the N.T.R. University of Health, Sciences had no authority
to 23 order re-evaluation of the answer scripts, cannot be upheld. Therefore,
this Court does not agree with the finding recorded by the Division Bench of
the High Court that the Vice-Chancellor of the University had no power or
jurisdiction to order the re-verification of answer scripts. However, the facts
indicate that the Vice- Chancellor had exercised power to order re-verification
of answer scripts under pressure and coercion from the students and their
parents and not independently on merits. As noticed earlier, 436 students had
merely demanded re-totaling of marks. If the Vice-Chancellor was of the opinion
that revaluation of answer scripts was necessary, he should have directed
revaluation of answer scripts of all 992 students who had failed and
revaluation of answer scripts could not have been confined only to 436 students
who had never applied for re-valuation of their answer script, but had applied
only for re-totaling of their marks recorded on the answer scripts. From the
record, it is evident that the University authorities including the
Vice-Chancellor, did not at all 24 go into the merits of the allegations made
in the complaints/representations submitted by the parent's association for re-verification
to find out whether there was any grain of truth in them. The record produced
by the University does not give any indication of methodology adopted by the
Committee for re-valuation.
Moreover, the Members
of the Committee appointed by the Vice-Chancellor for re-valuation of answer
scripts had undertaken re-verification of 1082 answer scripts and completed
re-verification in two days which itself indicates that the said re-valuation was
not properly done and no credence could be given to the same. It is worth
noticing that the decision of the Executive Council to cancel the result of the
students on the basis of re- verification and giving an opportunity to the
failed students to re-appear in the first year MBBS examination was approved by
the Vice-Chancellor himself. Therefore, this Court is of the opinion that the
Division Bench of the High Court was justified in upholding the decision of
the 25 Executive Council to cancel the result obtained on re- verification of
answer scripts.
10. Mr. Gopal
Subramanium, learned Additional Solicitor General appearing for the
respondents, has stated at the Bar that the University is inclined to hold
supplementary examination of the students, who have yet to clear first year
MBBS examination.
Therefore, NTR
University of Health Sciences is hereby directed to hold supplementary
examination of all students who have yet not cleared the examination of First
Year M.B.B.S. held in September/October 2006. Pursuant to interim orders, 294
students were permitted to prosecute studies in Second Year M.B.B.S. If any
student/students fails/fail in supplementary examination of First Year M.B.B.S.
examination, the declaration of the results of such candidate/candidates who
appear for Second Year M.B.B.S be withheld or their further course of study 26
be decided based on the Rules and Regulations of University applicable to such
students. It is clarified that the abovementioned direction would apply only to
those students who had appeared and failed in the first year M.B.B.S.
examination held between September 5, 2006 and October 10, 2006.
Subject to the
direction given above, this Court finds that no ground is made out by the
appellants to interfere with the ultimate conclusion reached by the Division
Bench and, therefore, the appeals are disposed of accordingly. There shall be
no order as to costs.
...................................CJI
[K.G. Balakrishnan]
.....................................J.
[P. Sathasivam] .
....................................J.
[J.M. Panchal]
New
Delhi;
27
October 22, 2008.
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