Vice-Chancellor, Vee... v. Smt. Shashikala And ..., Allahabad High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Special Appeal No. 1945 of 2008

Attorney(S)

I.S.Tomar
Anil Tiwari

Judges

R.K Agrawal
S.P Mehrotra, JJ.

Acts

ARTICLE 226 CONSTITUTION OF INDIA
U.P State Universities Act, 1973

See more information ...

Smart Summary

Factual and Procedural Background

The petitioner-respondent No. 1 (a regular B.Ed student of Veer Bahadur Singh Purvanchal University, Jaunpur) appeared in the B.Ed Examination, 2007. In Paper No. 7, "Educational Administration and Management", she was awarded 29 out of 100 marks and consequently failed the examination.

The petitioner-respondent No. 1 filed Civil Misc. Writ Petition No. 56223 of 2008 seeking a writ directing the respondents to re-check/re-examine her answer book for Paper No. 7. Pursuant to an order of the learned Single Judge dated 3.11.2008, the respondents produced the answer book for perusal.

By judgment and order dated 20.11.2008 the learned Single Judge directed that the respondent-University should have the answer copy re-evaluated by an expert examiner and submit a report within three weeks. The Single Judge placed reliance on the Apex Court decision in Manish Ujwal v. Maharishi Dayanand Saraswati University (JT 2005 8 SC 382).

The respondents-appellants challenged that judgment and order by filing the present special appeal. A Division Bench heard counsel for the parties, decided to dispose the special appeal finally at that stage, and ultimately allowed the appeal, setting aside the Single Judge's interim directions and directing the writ petition to be decided on merits by the learned Single Judge.

Legal Issues Presented

Whether, in the absence of a statutory provision under the U.P. State Universities Act, 1973 or the university's statutes/ordinances, a Court may direct re-evaluation of an answer book.
Whether re-evaluation (or evaluation in cases of total non-application of mind) can be directed by the Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
Whether an order directing re-evaluation of an answer book can be issued at the interim stage (by way of interim directions), or such a direction must be given only when finally deciding the writ petition.
Whether the learned Single Judge erred in issuing interim directions that effectively granted the substantive relief sought in the writ petition.

Arguments of the Parties

Respondents-Appellants' Arguments (as presented by Shri Anil Tiwari)

There is no provision for re-evaluation of answer books in the U.P. State Universities Act, 1973, nor in the First statutes or ordinances of Veer Bahadur Singh Purvanchal University.
If re-evaluation relief is to be granted, it can only be under Article 226 of the Constitution in the event the Court finds a material or glaring defect in evaluation.
Such relief, if at all available, should be granted at the final stage of the writ petition and not by interim order.
The interim directions of the learned Single Judge amounted to virtually allowing the writ petition and thus were not legally permissible.
Reliance was placed on a Division Bench decision dated 8.12.2008 in Special Appeal No. 1747 of 2008 (Veer Bahadur Singh Purvanchal University v. Km. Amita Maurya).

Petitioner-Respondent No. 1's Arguments (as presented by Shri I.S. Tomar)

The learned Single Judge perused the answer book and was satisfied that there were glaring and material errors in the evaluation indicating an absence of proper application of mind.
In such circumstances the learned Single Judge correctly directed re-evaluation by an expert examiner and required a report to be placed before the Court so that the Court could give a final direction in light of that report.
Reliance was placed on the Apex Court decision in Manish Ujwal (supra).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Manish Ujwal v. Maharishi Dayanand Saraswati University, JT 2005 8 SC 382	That the Court, in exercise of its extraordinary jurisdiction under Article 226, may direct re-evaluation where glaring and material errors in evaluation are found such that substantial justice requires intervention.	The Single Judge had placed reliance on this Apex Court decision in ordering re-evaluation; the Division Bench noted Manish Ujwal as authority that re-evaluation may be directed in exceptional circumstances of glaring errors.
Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth etc., 1984 4 SCC 27	Illustrates the general principle that in absence of statutory provision courts will not ordinarily direct re-evaluation of answer books.	Cited by the Division Bench as part of the line of authority supporting the proposition that re-evaluation is not normally ordered without statutory backing.
Kshitij Singh v. Joint Secretary Central Board of Secondary Education, Allahabad, 2001 44 ALR 629	Support for the proposition that courts do not normally order re-evaluation where no statutory provision exists.	Included in the list of authorities demonstrating the general rule against judicially directed re-evaluation absent exceptional circumstances.
Anuj Gupta (Minor) v. Central Board of Secondary Education, Delhi through its Secretary, 2002 49 ALR 551	Another authority reflecting the general reluctance of courts to order re-evaluation in the absence of statutory provisions.	Relied upon by the Division Bench as part of the precedent base establishing the ordinary rule.
Public Services Tribunal Bar Association v. State of U.P., 2003 96 FLR 1048 SC	Principle that interim relief should not be granted if it would amount to final relief; courts should avoid interim orders that effectively decide the controversy.	Relied upon to support the conclusion that granting re-evaluation at an interim stage may amount to granting final relief and is therefore impermissible.
Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai, AIR 2004 Allahabad 107 (paras 10 & 17)	Authority reinforcing that interim orders amounting to final relief are not appropriate.	Cited to support the rule that the Court should not grant interim relief which amounts to final relief.
Veer Bahadur Singh Purvanchal University v. Km. Amita Maurya, Special Appeal No. 1747 of 2008 (decided 8.12.2008)	Held that re-valuation cannot be ordered under university statutes where none is provided, except in exercise of Article 226 and only when the Court is satisfied it is necessary in the interest of substantial justice; such an order can only be passed when finally deciding the writ petition because an interim order would virtually grant final relief.	The Division Bench in the present appeal expressly followed the propositions laid down in this Division Bench decision and treated it as directly on point; it formed the immediate precedent leading to setting aside the Single Judge's interim order.

Court's Reasoning and Analysis

The Division Bench conducted a step-by-step analysis grounded in the authorities placed before it and in the procedural posture of the matter:

It recognized the general rule: in the absence of any statutory provision permitting re-evaluation of answer books under the U.P. State Universities Act, 1973 or the university's own statutes/ordinances, courts will not direct re-evaluation. The Court cited authorities to that effect (Maharashtra State Board v. Paritosh Bhupesh Kurmarsheth; Kshitij Singh; Anuj Gupta).
The Court acknowledged an exception: where glaring errors in evaluation demonstrate that the examiner did not apply his mind at all (a total non-application of mind), the situation is tantamount to non-evaluation rather than mere mis-evaluation. In such rare and exceptional cases the Court may direct re-evaluation because the direction would be for evaluation and not re-valuation.
The Court further noted that even under Article 226 the power to direct re-evaluation exists to secure substantial justice where glaring and material errors are found (as recognized in Manish Ujwal), but emphasized that the exercise of that jurisdiction should occur when the writ petition is finally decided.
The Division Bench focused on the procedural propriety of the learned Single Judge's order: the key question was whether an order directing re-evaluation could be issued at an interim stage. The Court held that any such interim direction would, in effect, grant the substantive relief claimed in the writ petition and thus would amount to granting final relief by interim order. The Court treated this as impermissible, citing authorities (Public Services Tribunal Bar Association; Ashok Kumar Bajpai).
Applying these principles to the present facts, the Court concluded that the interim directions issued by the Single Judge had effectively granted the final relief sought and therefore were not appropriate. The Division Bench followed the earlier Division Bench decision in Veer Bahadur Singh Purvanchal University v. Km. Amita Maurya (8.12.2008) which reached the same conclusion.
Procedurally, the Division Bench allowed the special appeal, set aside the Single Judge's interim order dated 20.11.2008, and directed that the learned Single Judge proceed to decide the writ petition on merits in accordance with law. The Court specified timelines for filing counter-affidavit and rejoinder and listed the matter for an appropriate Bench after three weeks. Although the Division Bench perused the answer book, it expressly refrained from expressing any opinion on the merits because the writ petition would be decided on merits by the Single Judge.

Holding and Implications

Holding: The Division Bench ALLOWED the special appeal and set aside the learned Single Judge's judgment and order dated 20.11.2008 which had directed interim re-evaluation of the petitioner-respondent No. 1's answer book.

Implications and immediate consequences:

The learned Single Judge's interim directions for re-evaluation (which required the University to have the answer book re-evaluated and to submit a report within three weeks) were vacated because they effectively amounted to granting final relief at the interim stage.
The writ petition (Civil Misc. Writ Petition No. 56223 of 2008) will be decided on merits by the learned Single Judge in accordance with law; the Division Bench directed that the writ petition be listed before the appropriate Bench after three weeks, with specified timelines for filing the respondents' counter-affidavit (within two weeks) and the petitioner's rejoinder (within one week thereafter).
The Court reiterated the legal position adopted in the cited authorities: re-evaluation may be directed in exceptional cases involving total non-application of mind or glaring/material errors, or under Article 226 in the interest of substantial justice, but such directions should ordinarily be given when the writ petition is finally decided and not by interim order.
The Division Bench perused the petitioner-respondent No. 1's answer book but explicitly declined to express any opinion on the merits since the matter is to be decided on merits by the learned Single Judge.

Appeal Allowed.

Show full summary ...

Vice-Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur And Others v. Smt. Shashikala And Another

R.K Agrawal and S.P Mehrotra, JJ.:— The present special appeal has been filed against the judgment and order dated 20.11.2008 passed by the learned Single Judge whereby the learned Single Judge has, inter alia, given the following interim directions:

“Considering the facts and circumstances of this case as mentioned hereinabove, it is directed that the respondent-University shall itself have the answer copy of “Educational Administration and Management” paper of B.Ed Examination-2007 of the petitioner re-evaluated through an expert examiner, who may be the Head of the concerned department, within three weeks from today and submit a report, along with the marks awarded to the petitioner after revaluation.”

2. It appears that the petitioner-respondent No. 1 appeared as regular student in B.Ed Examination, 2007 conducted by Veer Bahadur Singh Purvancahl University, Jaunpur. In the answer book of the petitioner-respondent No. 1 in respect of the 7th paper, namely, ‘Educational Administration and Management’, she was awarded 29 marks out of 100 marks. The result of the petitioner-respondent No. 1 was that she failed in the said B.Ed Examination, 2007.

3. The petitioner-respondent No. 1 filed Civil Misc. Writ Petition No. 56223 of 2008 before this Court, inter alia, stating that she was awarded satisfactory marks in all the papers except the 7th Paper, namely, ‘Educational Administration and Management’ in the said B.Ed Examination, 2007. It was, inter alia, prayed in the said writ petition that a writ, order or direction in the nature of mandamus be issued directing the respondents in the said writ petition (respondents-appellants in the present special appeal) to re-check/re-examine the answer book of the petitioner-respondent No. 1 in respect of the 7th Paper, namely, ‘Educational Administration and Management’ in the said B.Ed Examination, 2007.

4. It appears that pursuant to an order dated 3.11.2008 passed by the learned Single Judge in the said writ petition, the respondents-appellants produced before the learned Single Judge the answer book of the petitioner-respondent No. 1 in respect of the aforesaid 7th Paper, namely, ‘Educational Administration and Management’ in B.Ed Examination, 2007.

5. After perusing the aforesaid answer book of the petitioner-respondent No. 1 and noticing the submissions made by the learned Counsel for the parties, the learned Single Judge by the judgment and order dated 20.11.2008, inter alia, gave interim directions as quoted above. The learned Single Judge placed reliance on a decision of the Apex Court in Manish Ujwal v. Maharishi Dayanand Saraswati University . JT 2005 8 SC 382..

6. Against the said judgment and order dated 20.11.2008, the respondents-appellants have filed the present special appeal.

7. We have heard Shri Anil Tiwari, learned Counsel for the respondents-appellants, Shri I.S Tomar, learned Counsel for the petitioner-respondent No. 1 and the learned Standing Counsel appearing for the respondent No. 2, and perused the record.

8. The learned Counsel for the parties are agreed that the special appeal may be finally decided at this stage itself.

9. It is submitted by Shri Anil Tiwari, learned Counsel for the respondents-appellants that there is no provision for re-evaluation of the answer book in the U.P State Universities Act, 1973 nor is there any such provision in the First statutes or the ordinances applicable to Veer Bahadur Singh Purvanchal University, Jaunpur. It is further submitted that in case any material or glaring defect is found by this Court in the evaluation of the answer book then in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, it may direct for revaluation. However, the submission proceeds, such relief may be granted at the final stage and not at an interim stage. It is submitted that the interim directions given by the learned Single Judge have resulted in virtually allowing the writ petition itself, which is not legally permissible. Shri Anil Tiwari has placed reliance on a judgment dated 8.12.2008 passed by a Division Bench of this Court in Special Appeal No. 1747 of 2008; Veer Bahadur Singh Purvanchal University v. Km. Amita Maurya.

10. In reply, Shri I.S Tomar, learned Counsel for the petitioner-respondent No. 1 submits that the answer book of the petitioner-respondent No. 1 was perused by the learned Single Judge and having been satisfied in regard to glaring and material errors in the evaluation of the answers in the said answer book, the learned Single Judge directed for re-evaluation of the answerbook and submission of report to the Court so that final direction could be given in the light of such report. Shri Tomar has placed reliance on the decision of the Apex Court in Manish Ujwal case (supra).

11. We have considered the submissions made by the learned Counsel for the parties.

12. Normally, in the absence of any provision for re-valuation of the answer books in the relevant Rules etc., the Court will not give any direction for re-evaluation of the answer books. Reference in this regard may be made to the following decisions:

1. Maharashtra State Board of Secondary and Higher Secondary Educational v. Paritosh Bhupesh Kurmarsheth etc. . 1984 4 SCC 27

2. Kshitij Singh v. Joint Secretary Central Board of Secondary Educational, Allahabad . 2001 44 ALR 629.

3. Anuj Gupta (Minor) v. Central Board of Secondary Educational, Delhi through its Secretary . 2002 49 ALR 551.

13. However, there may be cases where glaring errors are found in the answerbook indicating that the examiner has not at all applied his mind while evaluating the answer book, i.e, there has been total non-application of mind while evaluating the answer book. Such cases will be very rare and exceptional. In such cases, the Court may direct for revaluation of the answer book of a candidate. This is because if the evaluation is done by the examiner without application of his mind and glaring errors are found in the answer book making it evident that the examiner has not at all applied his mind while evaluating the answer book, i.e, there has been total non-application of mind while evaluating the answer book, then such a case will be treated to be a case of non-evaluation of the answer book and direction for re-evaluation will be deemed to be direction for evaluation of the answer book, and not its re-valuation.

14. Even otherwise, in case this Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India finds glaring and material errors in the evaluation of answer book of a candidate, then this Court in order to do substantial justice may give direction for re-valuation of such answer book. Reference in this regard may be made to the decision of the Apex Court in Manish Ujwal case (supra).

15. However, the question arises as to whether such a direction for re-valuation of the answer book may be given at an interim stage or such a direction should be given when the writ petition is being finally decided. We are of the opinion that such a direction for re-evaluation of the answer book may be given while finally deciding the writ petition, and not at an interim stage, as any such direction at an interim stage would amount to virtually allowing the writ petition by an interim order. It is well settled that the Court should not grant interim relief which amounts to final relief. Reference in this regard may be made to the following decisions:

1. Public Services Tribunal Bar Association v. State of U.P . 2003 96 FLR 1048 SC.

2. Ashok Kumar Bajpai… v. Dr. (Smt.) Ranjana Bajpai…. . AIR 2004 Allahabad 107 paragraphs 10 and 17..

16. In the present case, as noted above, the petitioner-respondent No. 1 in her writ petition has, inter alia, prayed for issuance of a writ, order or direction in the nature of mandamus directing the respondents-appellants to re-check/re-examine the answer book of the petitioner-respondent No. 1 in respect of the aforesaid Paper No. 7, namely, ‘Educational Administration and Management’ in B.Ed Examination, 2007. This relief sought by the petitioner-respondent No. 1 as the final relief in the writ petition cannot be granted at an interim stage.

17. The interim directions given by the learned Single Judge in the judgment and order dated 20.11.2008 have virtually granted the final relief claimed by the petitioner-respondent No. 1 in the writ petition.

18. We are of the view that the learned Single Judge was not correct in passing the said judgment and order dated 20.11.2008 giving the above-quoted interim directions.

19. In Special Appeal No. 1747 of 2008; Veer Bahadur Singh Purvanchal University v. Km. Amita Maurya, decided on 8.12.2008, similar controversy was involved. A Division Bench of this Court held as under:

“In view of the fact that no re-valuation is provided under the State University Act or the First statutes of the university, the order for re-valuation cannot be passed except in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India and that to when the Court is satisfied that in the peculiar facts of the case such an exercise is necessary in the interest of substantial justice. The order to that effect can only be passed by the Writ Court while it finally decide the writ petition inasmuch as any direction to get the answer sheet re-evaluated and to submit a report at the interim stage virtually amounts granting the final relief to the writ petitioner. It is settled law that no interim relief can be granted by way of final relief which may or may not be granted by the Court as final relief.

In view of the aforesaid, we feel that learned Single Judge was not justified in requiring the university to get the answer sheet of the petitioner re-checked and to submit the result so obtained before the Court by the next date…………”

(Emphasis supplied)

20. We respectfully follow the propositions laid down in the above decision.

21. In view of the above, we allow the special appeal and set aside the judgment and order dated 20.11.2008 passed by the learned Single Judge. The learned Single Judge may proceed to decide the writ petition on merits in accordance with law. The writ petition will be listed before the appropriate Bench after three weeks. The respondents-appellants may file their counter-affidavit in the writ petition within two weeks. The petitioner-respondent No. 1 may file re-joinder affidavit within a week thereafter.

22. Before parting with the case, we may mention that the answer book of the petitioner-respondent No. 1 was produced before us for perusal, however, as the matter will be decided on merits by the learned Single Judge we are not expressing any opinion on merits of the case.

23. We order accordingly.