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Gujarat University Vs. Sharad Pravinchandra Upadhyaya - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR469
AppellantGujarat University
RespondentSharad Pravinchandra Upadhyaya
Excerpt:
.....against the action which the university proposed to take, it was absolutely necessary, in the interests of natural justice, for the university to disclose the name of the reassessing expert to the petitioners and to supply to them a copy of his entire report......heard that petition found that the university had not obtained reassessment of the petitioner's answer books from experts who did not belong to the university and that, therefore, the dicision recorded by the university against the petitioner was not justified. this court also found that principles of natural justice were violated by the university. the controversy in this case centres round two papers which were answered by the petitioner. they were chemistry paper ii and biology paper i. since this court, in special civil application no. 1097 of 1978 wanted re-assessment of those answer books by experts from outside, the university sent petitioner's chemistry paper ii to professor p.m. desai of south gujarat university, surat and biology paper i to dr. atul mehta of m.s. university,.....
Judgment:

S.H. Sheth, J.

1. These three appeals are directed against the common judgment recorded by the learned Single Judge on April 24, 1980 in three petitions which were filed by some students who appeared at the First B. Sc. Examination held by Gujarat University in April, 1978.

2. The learned Single Judge has stated in his judgment facts of each case in details. It is, therefore, not necessary for us to reproduce them in this judgment. The broad allegation which the University made against original petitioners was that they had directly or indirectly influenced the moderators and unduly obtained more marks than they deserved in certain papers in which they appeared. Notice was issued by the University to each of the original petitioners to show cause why their results should not be cancelled and why they should not be debarred from appearing at the examination for a certain period of time. The Enquiry Committee which the University appointed held the enquiry and came to the conclusion that the results of the original petitioners should be cancelled and that they should be debarred from appearing at the examination for the period which is specified in the impugned orders.

3. Original petitioners were aggrieved by the notifications which the University issued and under which their results were cancelled and they were debarred from appearing for some time in future at the F.Y.B.Sc. examination. The learned Single Judge who heard the petitions found that the principles of natural justice were not complied with by the University. He, therefore, quashed the impugned notifications. The University has appealed against that decision and that is how these three appeals have arisen. The principal question which has been raised by Mr. Shelat who appears on behalf of the appellant University relates to demarcating the line of circumference for principles of natural justice in the academic world in case of a dispute between the students and the University.

4. We now turn to Letters Patent Appeal No. 112 of 1980 which is directed against the order recorded by the learned Single Judge in Special Civil Application No. 1514 of 1979. The original petitioner appeared at the F.Y.B. Sc. examination. It was found by the University that he had obtained unduly high marks by directly or indirectly influencing the moderators; and, therefore, cancelled his result. He challenged that notification in Special Civil Application No. 1097 of 1978. A Division Bench of this Court which heard that petition found that the University had not obtained reassessment of the petitioner's answer books from experts who did not belong to the University and that, therefore, the dicision recorded by the University against the petitioner was not justified. This Court also found that principles of natural justice were violated by the University. The controversy in this case centres round two papers which were answered by the petitioner. They were Chemistry Paper II and Biology Paper I. Since this Court, in Special Civil Application No. 1097 of 1978 wanted re-assessment of those answer books by experts from outside, the University sent petitioner's Chemistry Paper II to Professor P.M. Desai of South Gujarat University, Surat and Biology Paper I to Dr. Atul Mehta of M.S. University, Baroda. The University after having obtained re-assessment of these two answer-papers of the petitioner, served upon the petitioner a notice to show cause and also supplied to him copies of the opinions of Professor P.M. Desai and Dr. Atul Mehta. The opinions given by Professor P.M. Desai and Dr. Atul Mehta showed that the original assessment made by the examiners of the petitioner's Chemistry Paper II and Biology Paper I was correct and that increase of marks made by the moderators was not justified. The learned Single Judge thought that the opinions of expert examiners, Professor P.M. Desai and Dr. Atul Mehta, were not sufficient to warrant the cancellation of the petitioner's result and his rustication in future from appearing at the University Examination. There are no other circumstances on record which militate against the petitioner. Mr. Shelat has tried to point out to us three circumstances in this behalf. First circumstance consists of the affidavit filed by Dr. M.N. Desai, a member of the Executive Council of the University. In the said affidavit he has stated that Professor Kadri and Professor Ankhiwala, the two moderators, had deliberately selected the petitioner's answer books in Chemistry Paper II and Biology Paper I for unduly increasing his marks. This is Dr. Desai's inference. It is not a fact of which, he has any personal knowledge. What was the basic material from which he drew this inference? There was none. It appears that he drew this inference from the opinions given by Professor P.M. Desai and Dr. Atul Mehta. The second circumstance which Mr. Shelat has tried to point out is that the two moderators who increased the marks belong to Palanpur. It cannot be said that the moderators who belong to Palanpur are inclined to commit malpractices. The third circumstance which Mr. Shelat has tried to point out and which he has tried to link with the second circumstance is that the petitioner's uncle is a Professor in Education College at Palanpur. The suggestion which has been made on behalf of the University is that the petitioner's uncle who is a Professor at Palanpur was instrumental in unduly influencing Professor Kadri and Ankhiwala who were the moderators in the two papers of the petitioner. There is no material whatsoever to establish any link between the petitioner's uncle on one hand and two moderators on the other hand. Merely because they belong to the same town, it cannot be ipso-facto said that they had conspired to unduly help the petitioner in getting more marks.

5. Can it, under the aforesaid circumstances, be said that merely because in the opinion of the experts who reassessed the petitioner's two answer books, increase of marks made by the two moderators was not justified the petitioner had directly or indirectly influenced the moderators in assigning more marks to the answers in the aforesaid two papers? We do not think that any one can jump to this conclusion. There is nothing on record to show that the assignment of unduly higher marks by the moderators was necessarily a result of the direct or indirect influence practiced by the petitioner upon them. It may as well be the result of the incompetence of the moderators. It may as well be the result of negligence on the part of the moderators in assigning marks. It may as well be an error of judgment on their part. Therefore, merely because the experts who reassessed the petitioner's answer books in question came to the conclusion that the moderation of those answer books by the two moderators was not justified, it cannot be said that the petitioner had directly or indirectly tried to influence the two moderators. The inference (or the conjecture) which the affidavit filed by Dr. M.N. Desai records does not help in fortifying the case of the University because it records only a couple of stray and unconnected facts. No inference form unconnected and strange facts can be drawn against a person--even a student--which stigmatizes him. Therefore, we are of the opinion that though we do not subscribe to all the reasons which have weighed with the learned 'ingle Judge in making the impugned order, the impugned order deserves to be confirmed. Therefore, Letters Patent Appeal No. 112 of 1980 fails and is dismissed.

6. We now turn to Letters Patent Appeal No. 114 of 1980 in which there are similar facts. It arises out of Special Civil Suit No. 2465 of 1979. The petitioner in that case also appeared at the same examination during the same examination season. The University felt suspicious about what the moderators had done in his answer books relating to Chemistry Paper II and Mathematics Paper I. The moderators had increased marks in both these papers by 4 or more than 4 over what the examiners had assigned to the petitioner. Bearing in mind the directions which this Court had given to the University in regard to the petitioner in Letters Patent Appeal No. 112 of 1980, the University thought fit to get his answer books re assessed. Upon reassessment by the experts, it was found that the evaluation made by the examiners was correct and that the assignment of enhanced marks by the moderators in those two papers was not justified. The University, therefore, issued to the petitioner a notice to show cause why his results should not be cancelled and why he should not be debarred. from appearing at the University examination for some time in future. The Enquiry Committee which held the enquiry came to the conclusion after hearing the petitioner that he had directly or indirectly influenced the moderators. Copies of the opinions of the experts who re-assessed the answer books were supplied to the petitioner. The University had no other material before it to come to the conclusion, except the opinions of the two experts who re-assessed petitioner's answer books, that he had directly or indirectly influenced the moderators. We do not think that merely because on re-assessment by the experts it was found that the evaluation of his answer books made by the examiners was correct and that the moderation done by the moderators was not justified, one can jump to the conclusion that the petitioner had directly or indirectly influenced the moderators. In order to come to the conclusion that the petitioner had directly or indirectly influenced the moderators and thereby procured more marks in the two papers which he answered, something more than the opinion of re-assessing experts should be on record. That something more must relate to the misbehaviour of the petitioner. More facts which are necessary to establish the petitioner's misbehaviour must be basic in character and not purely inferential or conjectural. From some special facts which may be on record in addition to the opinion of the re-assessing experts, an inference can be drawn one way or the other. But in absence of any such facts on record, the opinion of the reassessing experts cannot lead to the only conclusion that it is the petitioner who had misbehaved and directly or indirectly influenced the moderators in assigning him more marks. This case is similar to, one in Letters Patent Appeal No. 112 of 1980.

7. The reasons which have been stated in the judgment rendered by the learned Single Judge do not disclose any material infirmity in the impugned order. Indeed, the learned Single Judge has proceeded on slightly different grounds. For slightly different reasons we reach the same conclusion, and therefore, confirm the order made by him and dismiss the appeal.

8. We now turn to Letters Patent Appeal No. 113 of 1980 which has raised a controversy of much greater dimension. During the same examination season, two petitioners appeared at the same examination held by the Gujarat University. Their answer-books in Biology Paper I were examined. They were moderated by Professor Kadri, Palanpur. As a result of the moderation he increased the marks in both the papers. This increase made by Professor Kadri as a result of his moderation aroused suspicion of the University. Therefore, the University sent those answer books for re-assessment to Professor C.K. Shah who is the Head of the department of Botany in Gujarat University. Professor C.K. Shah agreed with the assessment made by the examiner and dissented from the mode ration made by Professor Kadri. According to him, there was no justification for increasing the marks assigned by the examiner originally to those answer books. The learned Single Judge has taken the view that the petitioners did not have an adequate opportunity to represent their case before the Enquiry Committee which held the enquiry in this case, cancelled the results and debarred the petitioners from appearing at the examination of the University for some time in future. Before the learned Single Judge a number of decisions were cited. We have carefully scanned his judgment. It appears to us that quite a large number of decisions cited before him were not opposite and did not deal with the question of bounds of principles of natural justice in the academic world. We do not propose to refer to those decisions in this judgment. Upon a careful perusal of the grounds which weighed with the learned Single Judge in cancelling the notification issued by the University against the petitioners we find that three circumstances weighed with him. The first circumstances arose out of the statement of one S.R. Shah which the University had recorded. That statement disclosed that Professor Kadri, the moderator, had imparted private tuitions to the petitioners in this case. The second circumstance which weighed with the learned Single Judge was that even though the petitioners wanted to cross-examine the re-assessing expert Professor C.K. Shah, they were not given that opportunity by the University. The third circumstance which weighed with the learned Single Judge was that even though the petitioners demanded zerox copies of their answer books, they were not supplied by the University to them and that, therefore, the University had prevented the petitioners from obtaining opinion of their own expert in the matter of evaluation of their answer books in question. So far as the first circumstance is concerned, it appears to us that a copy of the statement of S.R. Shah ought to have been supplied to the petitioners. It was a statement which was recorded in this disciplinary proceedings. It was, therefore, not academic in character. Indeed, in the notices which University served upon the petitioners reference to the statement of S.R. Shah was made. Mr. Shelat, who appears on behalf of the University has pointed out to us that the contention regarding failure on the part of the University to supply to the petitioners copies of the statement of S.R. Shah was not raised by the petitioners' in their writ petition and that, therefore, the University did not have an opportunity to meet it. In the reply which the petitioners gave to the notices which the University issued to them to show cause, they did not demand copies of the said statement. They also did not ask the Enquiry Committee to produce S.R. Shah for their cross-examination. Therefore, though we are of the opinion that the copies of the statement of S.R. Shah ought to have been supplied to the petitioners, failure to supply copies of that statement did not cause any prejudice to the petitioners, because the petitioners themselves did not plead any prejudice in their petition on that account. If the petitioners had raised in their petition a contention against the failure on the part of the University to supply copies of the statement of S.R. Shah and further failure on the part of the University to produce him for their cross-examination, certainly it would have received our very serious consideration. We say so for goods. The statement of S.R. Shah tried to establish a link between the petitioners on one hand and the moderator on the other hand. Therefore, it stigmatized their character. The principles of natural justice require that adequate and sufficient opportunity should be given to one to defend himself against something which haves a stigma on his career. However, in the instant case, since the petitioners did not make that grievance in the petition, we do not uphold it. The second and the third grounds relating to the re-assessment made by Professor C.K. Shah have not been disputed by the University. The University did not disclose to the petitioners the nine of the expert who had re-assessed their answer books in Biology Paper 1 nor did it supply to the petitioners his opinion in its entirety. In our opinion, in order to enable the petitioners to defend themselves effectively against the action Which the University proposed to take, it was absolutely necessary, in the interests of natural justice, for the University to disclose the name of the reassessing expert to the petitioners and to supply to them a copy of his entire report. In as much as the University did not do it, the University was in error and caused prejudice to the petitioners. This contention was specifically raised on behalf of the petitioners both before the University and in this Court. However the most material aspect of this case is, whether the petitioners were entitled to cross-examine the re-assessing expert Mr. C.K. Shah and to have Xerox copies of their answer books in order to enable them to obtain re-assessment of those answer books from their own expert. The learned Single Judge has upheld the petitioners' claim in that behalf. With great respect to him, we are unable to agree with him.

9. No student can be an examiner in his own case. He has no right to obtain evaluation of his answer books from an expert chosen or selected by him in order to contradict what an independent expert appointed, by the University his done. To permit a student or an examinee to obtain such an opinion in order to contradict the expert opinion obtained by the University is to appoint a student or an examinee, his examiner. In our opinion, it does not fall within the bounds of principles of natural justice. Secondly can it be said that the expert whose opinion upon re-assessment has gone against a student is liable to be subjected to cross-examination by the student? Or in other words, does a student have a right to cross-examine an academic expert? In our opinion, a student does not have any such right. There are two parties to the dispute--the student and the University. Between the student and the University, the expert who reassesses the disputed answer paper acts as a Judge. His role is that of a mediator who adjudicates upon the dispute between the student and the University which has found its examiner's or moderators' role dubious. Unless, therefore, such a student is able to make out a prima facie case of mala fides against the re-assessing expert or is able to prove that what the re-assessing expert has done is the result of some malpractice committed by him, it is not open to a student to claim the cross-examination of such a re-assessing expert. In this behalf, we have no doubt in our minds that the re-assessing expert stands in the position of a Judge, no doubt, in the academic world. If a Judge cannot be cross-examined as to why he wrote a particular judgment in favour of a particular party, such a re-assessing expert also cannot be cross-examined. With great respect, therefore, to the learned Single Judge, we are unable to uphold the finding recorded by him that the University ought to have permitted the petitioners to cross-examine Professor C.K. Shah, the re-assessing expert, and should have supplied to them Xerox copies of their answer books in order to obtain the opinion, in the matter of their assessment from their own expert. The opinion given by an expert upon re-assessment of an answer book falls wholly within the realm of academic matters. It may be made use of in disciplinary matters. But it does not belong to the field of disciplinary matters. It is a purely academic matter in regard to which no cross-examination by a student of an expert can be permitted.

10. Though we are unable to agree with all the findings recorded by the learned Single Judge, since; we are of the opinion that the name of Professor C.K. Shah re-assessing expert, was not disclosed to the petitioners and sines a copy of his entire report was not made available to them, the enquiry held by the University against the petitioners was vitiated. On this ground alone, therefore, we concur in the impugned order and confirm it. One reason, out of several reasons given by the learned Single Judge, is sufficient to uphold the order made by him. However, if the University still wants to pursue this case, it is open to University to do so. If the University decides to reopen this case, the University shall give the petitioners a reasonable opportunity of being heard and shall furnish to the petitioners a copy of the entire opinion given by Professor C.K. Shah and disclose his name to them.

11. In the result, subject to the liberty which is reserved to the University, the appeal fails and is dismissed.

In all the appeals there shall be no order as to costs.


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