(1) This is an application in revision against an interlocutory order by which the learned Civil Judge, Junior Division, directed that the petitioner-defendant should produce and give inspection to the plaintiff of certain documents.
(2) The plaintiff appeared at the Secondary School Certificate Examination held by the petitioner-Board in the month of March 1963. She was trying for the Jagannath Shankar Sheth Sanskrit Scholarship. On 3rd June 1963 the results of the said examination were declared. At the examination the first student got 94, second 93, third 92 and eight students got 90 marks each and she was one of those eight. On 10th July 1963 the plaintiff made an application purporting to be one under regulation 41(2) for amendment of the result on the ground that she was expecting about 96 or 97 marks and that there must be some error. After some correspondence she filed the present suit for (1) a declaration that the assessment of her answer paper in Sanskrit and award of 90 marks out of 100 to her was malicious, illegal, void and bad in law, and therefore the declaration and Award of Scholarships and prizes for Sanskrit was also illegal, malicious and bad in law, (2) that it be declared that she is entitled to the first Jagannath Shankar Sheth Sanskrit Scholarship and other Scholarships and prizes to which the plaintiff may be found entitled, (3) that in the alternative a direction be issued to the petitioner to get the answer book of the plaintiff and if necessary the answer-books of other candidates who were declared to have secured higher marks be assessed by an impartial and independent examiner according to rules and regulations, instruction and correct answer paper in that behalf and then to declare the plaintiff to be entitled to such Scholarships and/or prizes to which she may be found entitled according to the said assessment, (4) that an injunction be issued restraining the petitioner from distributing and paying the scholarships and prizes for Sanskrit in that examination.
(3) Along with the plaint she filed an application at Exh. 6 by which she requested the Court to direct the petitioner to produce and give inspection to the plaintiff of the following documents:
1. Sanskrit answer-book of the plaintiff and all other answer books of all other candidates declared to have secured 90 marks and above in Sanskrit in the S.S.C. Examination of March 1963.
2. Mark list of Examiners, Moderators, Deputy Chief Moderators and Chief Moderators, in respect of Sanskrit concerning plaintiff and these candidates at the said examination.
3. The Sanskrit question paper of this examination.
4. The model answer paper for the said question paper.
5. Reports of the examiners, moderators, deputy Chief Moderators and the Chief Moderators regarding examination of these candidates in Sanskrit.
6. Instructions to Examiners, Moderators and Chief Moderators regarding the work of examination and moderation issued by defendant in respect of the said examination and the said subject.
7. And all other documents concerning all these candidates in respect of their said examination of Sanskrit.
The Court made an ex parte order directing the defendant to produce the first six documents in Court. The petitioner out of respect for the Court produced these documents in a sealed cover under protest. It contended inter alia that they were privileged, that the matter was not justiciable and the results were incapable of being challenged in any Court. The learned Judge refused to consider the contentions of the Board as to the maintainability of the suit and held that it was necessary that the documents should be called upon to be produced and inspection should be given to the plaintiff. The defendant seeks to challenge this order.
(4) Mr. Abhyankar raises a preliminary objection that the revisional application is not competent relies on the judgment of the Supreme Court in S.S. Khanna v. F.J. Dillon : 4SCR409 . In my view, this judgment does not support him. The decision in this case affirms the view by this Court and several other High Courts that the High Court has power under Section 115 of the Civil Procedure Code to revise interlocutory orders if the conditions for its exercise are satisfied though it is not bound to do so.
(5) It is no doubt true that an order as to discovery and inspection is a matter of discretion of the trial Court. In a large number of cases the Court would be justified and even bound to order inspection of documents. But in some case, the order may not be justified at all particularly when the plaintiff has no right to sue or where it may cause prejudice to the other party in other matters. In the present case the trial Court has not even considered the most important question raised by the petitioner which it ought to have considered as provided by O. 11 R. 20 of the Civil Procedure Code.
(6) The two important matters which arise for decision are :
(1) What are the rights of a student who appears at the S.S.C. Examination? and (2) if there exists any right, whether a suit lies
(7) The right of a student to appear at an examination such as the one in question is the creation of statute and is subject to such conditions as are imposed by it. It is not a natural or common law right with incidents of such rights. It may be that the statute has not laid down the rules and regulations for the conduct of the examination and has left the making of the rules and regulations to the Board. But such rules and regulations when made by the Board within its powers, have the same effect as if they were made by the statute and are binding on all those who chose to appear at the examination. The question is has the plaintiff any right under the Bombay Secondary School Certificate Examination Act, 1948, the relevant Rules and Regulations thereunder?
(8) The Act constitutes the Board a body corporate. Though the Act does not say that it shall have power to hold examination since one of the purposes for its constitution is the holding of the examination and since it has got the power to make regulations for the purpose the power may be assumed to exist. Its powers are defined by Section 15 which includes the power to make regulations for matters referred to in Section 26 and to award certificates to students passing the examination and to award stipends, scholarships, medals, prizes etc. by clauses (a), (f) and (c). Section 26 empowers it generally to make regulations for the purposes of the Act and particularly regarding the conduct of the examination.
(9) Under the Act no right is given to an Examinee to call upon the Board to do a particular thing in his favour. The Board has made regulations only two of which need be considered. Regulation 43 gives the candidate a right to apply to the Secretary of the Board for verification whether the candidate's answers in any particular subject have been examined or whether there has been any mistake in the totalling of marks in that subject and provides the manner in which and the condition subject to which the application has to be made. This regulation clearly and specifically provides against re-examination of the papers and the reason is obvious. It is the subjective judgment of the examiners that is determinative of the matter and opinions of others cannot be relevant. Under this regulation she has only a right of verification and it is admitted before me that that has been done.
(10) The next regulations is 41 but then on a plain reading of this regulation it would show that no right is created in favour of the candidate. Sub-rule (2) on which particular reliance is placed is in the following term:
'In any case where it is found that the result of Examination has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, the Board on the recommendations of the Standing Committee shall have power to amend such result in such manner as shall be in accord with the true position and to make such declaration as it may consider necessary in that behalf, provided that except as provided in Regulation 41(3) below, no result shall be amended after the expiration of six months from the date of publication of the result'.
It is clear that the Board has to be guided by the recommendation of the Standing Committee and the power that is given to the Board to amend the result is an enabling power to be exercised for preventing injustice where it is found or held that there is an error, malpractice, fraud, improper conduct etc. The Board owes no duty to the examinee to do anything.
(11) In paragraph 7 of the plaint the plaintiff alleges that she was specially preparing for this scholarship, she had a special coach an expert in training students for this particular Scholarship and that she and her coach expected that she should secure about 96 or 97 marks. This is the only material on which the plaintiff must in the end rely in support of her allegation that all that was done by the Examiners, Moderators, by the Chief Moderator and by the Board was malicious, fraudulent, illegal and contrary to rules and regulations and established principles of assessing answer papers and therefore void. The plaintiff has not even alleged a semblance of error, a semblance of fraud, malpractice or improper conduct. Mr. Abhyankar contended that if confidential instructions to examiners and moderators were produced he might be able to say which instructions were disobeyed. I do not think plaintiff is entitled to see the confidential instructions meant for guidance of the examiners and the moderators. The plaintiff has only such rights as are given to her by the Act and the regulations made under the Act.
(12) Mr. Abhyankar cited some cases but they do not support him. In University of Calcutta v. Dipa Pai, 56 Cal WN 730 (SB), the order made by the Vice-Chancellor of that University cancelling the examination of the respondent was quashed. The order was made in contravention of the regulations made under the Indian Universities Act which required that before such an order is made the student concerned ought to be heard. It was observed that if the student is accepted by the University each agrees to be bound by the rules and regulations of the University. If this is so, since the regulation in the present case expressly provided against re-examination of papers the plaintiff can have no right such as claimed. Similarly, in Tapendra Nath Roy v. University of Calcutta : AIR1954Cal141 , an order against the petitioner was quashed as being contrary to regulations framed under the University Act.
(13) I have been taken through the representations made by the plaintiff and I find that in them that there is no suggestion of error, malpractice or fraud. The grounds suggested are the same as those suggested in the plaint. On such material the Board would not have been justified in commencing an enquiry much less amend the results which might start another spate of similar applications by other candidates.
(14) In her plaint the plaintiff does not allege any specific duty which the Board owes to her and none such in my view exists either under the Act or the Regulations framed under the Act. There can therefore be no question of her being able to maintain the suit. Apart from this, her allegations in the plaint are so vague that the suit cannot go to trial. If the suit proceeds to a hearing the Court will have due regard to the observations of the privy Council in the Bharat Dharma Syndicate v. Harish Chandra .
(15) I therefore set aside the order under review. The documents produced by the petitioner to be returned to it. The plaintiff to pay the costs of this revisional application.
(16) Mr. Mistree says that the documents, which were produced by the petitioner, will not be destroyed.
(17) Petition allowed.