V.A. Mohta, J.
1. As common questions of law relating to (i) validity of R. 4 of Ordinance No. 159 'prescribing rules for revaluation of answer books of examinees at University Examinations' framed under S. 40 of the Nagpur University Act, 1974 (the NU Act) (ii) interpretation of the Ordinance, are involved in these two petitions they are heard together and are being disposed of by a common judgment.
2. Writ Petitioner Lalit Taori (Writ Petition No. 536 of 1985) appeared for the Final M.B.B.S. Examination of Winter 1984 held by the Nagpur University and was declared successful. In the subject Medicine (Paper I), he was awarded 49 out of 100 marks. He was not satisfied with the valuation of this paper as the marks were not as per his reasonable expectation. He, therefore, on 17th Dec. 1984, applied for revaluation of this paper as provided for in the Ordinance No. 159. University informed the petitioner some time in Mar. 1985 that as a result of revaluation, there was averse change in the marks from original 49 to 42. As a consequence the petitioner's result was revised and he was declared unsuccessful. The petitioner sought information from the Registrar of the University on certain matters relating to the procedure that is followed in the matter of revaluation. According to him, only vague reply was given and hence this petition. Writ Petitioner Kumari Vandana Bhishikar (Writ Petition No. 568 of 1985) appeared for the Final M.B.B.S. Examination of Winter 1984. She was awarded 55 about 100 marks in Paper I and 57 out of 100 marks in Paper II in the subject Obstetrics and Gynecology and 59 out of 100 marks in paper I of the subject Paediatrics. She was not satisfied with the valuation of these papers as she did not get marks as per her reasonable expectation and, therefore, on 8th Jan. 1985, applied for revaluation. She received a communication in the second week of Mar. 1985 that as a result of revaluation, there was an adverse change in the marks awarded to the petitioner in both papers of Obstetrics and Gynaecology. She was awarded 45 marks each. In the subject of Paediatrics, marks were not changed. Aggrieved by the result of the revaluation, she addressed a representation to the Vice-Chancellor on 14th Mar., 1985 requesting him to restore the original marks. As this was not done, the present writ petition has been filed.
3. Only two points were canvassed before us. The first is the the R. 4 of the Ordinance to the extent it authorizes the Vice-Chancellor to make appointment of examiners for revaluation is contrary to S. 64 of the NU Act and therefore invalid. We begin with extracting relevant Rr. 3, 4 and 5 for ready reference :
'3 (i) An examinee may apply for revaluation for one or more papers. (ii) The examinee applying for revaluation of one or more papers.
(ii) The examinee applying for revaluation of his answer-book(s) shall have to give an undertaking to the effect that-
(a) The result of revaluation shall be binding on him/her and that he /she shall accept the result of revaluation instead of the original valuation.
(b) The University shall have the right to re-examine all his/her papers even though he/she seeks revaluation only for one paper or some of them. In such case, the decision of the University shall be binding on him/her.
(iii) Nothing in this Ordinance shall apply to scripts of Practical Examinations/Term Work/Internal Assessment/Session Marks/Dissertation/Thesis/Viva- Voce and Examinations where marking is not porvided.
4. (i) Appointment of examiners for revaluation shall be made by the Vice-Chancellor from the list of examiners recommended by S. 64 Committee and approved by the Executive Council. The answer books shall be revalued by 2 examiners other than the original examiner who valued them initially. In case the revaluation warrants the appointment of an examiner from outside the University area or in case where no name is available or found suitable in the given list, the Vice-Chancellor is authorised to make such appointment on behalf of the Boards of Studies, S. 64 Committee and the Executive Council as need be.
(ii) The remuneration of the Examiners shall be as decided by the Executive Council.
(iii) The memorandum of instructions for the guidance of the examiners, if prepared by the paper-setter, will be sent to each of the two examiners to enable him to value the answer books concerned concerned in accordance with the instructions.
5. (i) If the average of marks awarded in the paper by the two examiners appointed for revaluation varies from the marks given by the Original Examiner by 5% or more of the maximum marks prescribed for the paper, this average of marks shall be awarded to the candidate for the revision of his result and the marks given by the Original Examiner shall be deemed null and void.
(ii) If as a result of revaluation -
(a) the examinee attracts the provisions of Condonation of Deficiency and of Exemptions and Compartments, these shall be applied to him; and
(b) the examinee if eligible for Division, Merit, Medals, Prizes etc. the same shall be granted to him.'
Section 64 contemplates the following procedure to be followed in preparing the list of University examiners :
Every year for each Faculty, a Committee is constituted for the purpose of preparing lists of persons for appointment as University Examiners. The lists are prepared form amongst persons included in the panels prepared by the Board of Studies and are submitted for approval to the Executive Council. No changes in the lists can be made by the Executive Council except by passing a resolution stating the specific ground on which the change is either suggested or made. If any examiner is unable to accept the examiner ship and a fresh appointment cannot be made in time by the Executive Council, the Vice-Chancellor can appoint another examiner and report such appointment to the Executive Council.
4. At one stage, for re-valuations even the examiners outside the panel approved by the Executive Council as laid down under S. 64 were appointed by the Vice-Chancellor on the basis of special resolutions of the Academic Council and the Executive Council. Such appointments were challenged in this Court in the case of Ku. Rohini Dattatraya Tare v. Nagpur University, Nagpur, : AIR1984Bom115 and this Court held that even revaluation was a part of examination and S. 64 applies with equal vigour even to revaluation and that the results based on revaluation of papers by examines not from amongst those appointed under S. 64 were invalid. As a result those results were quashed and set aside. Negativing the contention that the departure in the procedure was made in the interest of the examinees to get the papers revealed within a short-time, it was held :
'Moreover, we fail to see how a delay is caused on account of getting papers examined by examiners appointed under S. 64. The panel of examiners can be prepared in good time and it is only a question of forwarding the answer books to the concerned examiners in the said panel.'
Now it is not disputed before us that the reevaluations in question were made by the examiners from the list of examiners duly prepared under S. 64. Submission is that S. 64 does not empower the Vice-Chancellor even to select a particular examiner from the list of examiners for revaluation of particular answer books, that even such decision has to be taken by the Executive Council and that as R. 4 ex power s the Vice-Chancellor to make such selection the said Rule is contrary to S. 64. We find it extremely difficult to accept this submission as valid. There is nothing in S. 64. We find it extremely difficult to accept this submission as valid. There is nothing in S. 64 contemplates is the preparation of panel of approved examiners. It has nothing to do with forwarding a particular answer book to a particular examiner. Such a decision can certainly be taken by the Vice-Chancellor in terms of S. 11(5). Rohini's case from supporting the petitioner's case lays down that question of forwarding answer books to any of the examiners from the list can always be done afterwards. We thus see nothing illegal in R. 4 authorizing the Vice-Chancellor to make appointment of examiners for revaluation from the list prepared under S. 64.
5. There is yet another angle to the issue. It appears that after the decision in Rohini, Ordinance No. 159 was amended by the Executive Council on 1-12-1983 by Ordinance No. 65 of 1983 and the amended Ordinance has duly received the approval and assent of the Chancellor on 30th May 1984. S. 24(xli) permits delegation by the Executive Council of any of its powers (except the power to make Ordinance) to the Vice-Chancellor and/or other functionaries, subject to the approval of the Chancellor. Thus assuming for a moment that Executive Council and none else is authorized under S. 64 to select the examiners vis-a-vis particular answer book/books, there is a valid delegation of the power to the Vice-Chancellor.
6. This takes us to the second point viz. as a result of revaluation the marks cannot be varied to the detriment of the student seeking revaluation under the Ordinance, We find that second point is equally devoid of any merit. Revaluation is a part of examination and is a fresh appraisal of the performance of a student by other examiner. In case the marks increase as a result of revaluation the increase is binding on the University which is obliged to vary result on that basis. How then the decrease in the marks can be held not binding on the student? The result of revaluation - whatever it is - has to be accepted as correct and final by all concerned and for all purposes. Indeed after revaluation the result of original valuation is erased. to hold otherwise would be against the basic concept of revaluation, it is submitted that the Ordinance is a beneficial piece of legislation intended for the benefit of student community and must be interpreted in its favour as far as possible. Apart from the consideration that such interpretation would be basically wrong neither the letter nor the spirit of this Ordinance leaves any scope for such interpretation. R. 3 makes the intention very clear. It requires an undertaking by a student that he shall accept the result of revaluation instead of the original valuation, it also authorizes the University to re-examine even papers of which revaluation is not sought. No student can be allowed to get over the obligation of these mandatory undertakings but for which revaluation is not permissible. Person giving this undertaking is thus stopped from contending that undertaking is not binding on him. It is pertinent to notice that Ordinance, as it stood originally, read thus :
'5. (i) If the average of marks awarded in the paper by two examiners varies from the marks given by the original examiner by 10% or more of the maximum marks of the paper, this average of marks will be awarded to the candidate for the revision of his result.
(ii) If as result of the revaluation of the answer books, the marks as being the score of the examinee, rise over or decrease below by 10% of the original marks in a paper/papers and accordingly his original result is changed, then only the results of revaluation shall be accepted by the University and 50% of the fee for revaluation will be refunded to the examinee.
(iii) If as result of revaluation -
(a) the examinee attracts the provision of Condonation of Deficiency and of Exemption and Compartments, those shall be applied to him; and
(b) the examinee is eligible for Division Merit, Medals, Prizes, etc., the same shall be granted to him.'
Thus rise and decrease both were specifically mentioned in the Rule. Now in the place of the words 'rise over or decrease below' the word 'varies' is used. The term 'varies' is unqualified and therefore must mean variation of all types. No change in the basic concept of revaluation was thus intended by amendment. Only a shorter and simpler terminology has been used to convey the same intention. If intention was otherwise nothing prevented the use of the relevant qualified words. Leading differently would amount to remaking the Ordinance.
7. Rule 5(ii), which refers to condonation of Deficiency and Exemptions and Compartments and Eligibility for Division, Merit, Medals, Prizes etc. - all points favourable to student - is also heavily relied upon. We find it improper to read this Rule in isolation. It refers only to some aspects and not all. The clear intention of R. 5(ii) is to make the position clear that fresh result shall have all the consequential benefits including with relation to Division, Merit, Medals, Prizes etc. and the old result shall be erased for all purposes. May be that R. 33 of Ordinance No. 6 dealing with the preparation of a merit-list was also in view of the University in making this provision.
8. For all these reasons, we see no substance in these petitions which are dismissed and rules discharged.
9. Petitions dismissed.