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Bhagat Ram Sharma Vs. the Himachal Pradesh University and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberL.P.A. No. 2 of 1978
Judge
Reported inAIR1987HP21
ActsHimachal Pradesh University Act, 1970 - Section 40(1)
AppellantBhagat Ram Sharma
RespondentThe Himachal Pradesh University and ors.
Appellant Advocate P. Malhotra, Adv.
Respondent Advocate Bhawani Singh, Adv.
DispositionAppeal allowed
Excerpt:
- .....in view of the above accepted position and to be fair to the candidates, if after re-valuation the marks of a candidate increase or decrease then it cannot be said that the increase or decreased in the marks was due to the fault of a candidate. the real fault in fact was of the examiner who had awarded less or more marks to the concerned candidate at the earlier stages. the result after re-valuation will be binding on the candidate and in these circumstances, this final result should be considered to have been declared on the date when the result of all the candidates was declared. if this position is not accepted then it can lead to absurd results. there can be cases where an examiner may award more marks and thus allow a person (who otherwise is not entitled to get the scholarship as.....
Judgment:

V.P. Gupta, J.

1. The appellant had joined law classes in the H. P. University. He obtained 191/300,181/300 and 199/300 marks in the first three semesters. In the fourth semester he was declared successful with 233/400 marks. As he was not satisfied with the marks awarded to him in the Administrative Law and the Mercantile Law papers, therefore, he applied for re-valuation on 31-7-1974 in terms of the rule framed by the H.P. University on 31-7-1974 for the Administrative Law and Mercantile Law papers. He deposited the requisite fees for the same (Annexures B and C). After revaluation he was awarded 64 marks in the Administrative Law paper instead of 42 marks and 52 marks in the Mercantile Law paper instead of 56 marks. As a result of this revaluation he obtained 251 marks out of 400 marks in the 4th semester. The final marks-sheet (Annexure D) was issued to him on 14-11-1974 and the re-valuation seems to have been done in the months of Aug./Sept. 1974. The appellant was thus awarded 822 marks out of 1300 marks in the four semesters and he also completed his examination in the first attempt.

2. The H.P. University had framed rules etc. for the award of scholarship, studentship and exhibitions as also for medals and prizes. A copy of the relevant ordinances/rules which were prevalent at that time is Annexure 'E' and is numbered as 16.14. According to this, the Executive Council of the University had decided to award a scholarship of Rs. 100/-per month to a student securing the highest order of merit and a gold medal was to be awarded to the student securing highest merit. After re-valuation the appellant was the highest in the order of merit and was, therefore, entitled to the scholarship as well as the gold medal. The appellant laid his claim for the award of scholarship and the gold medal, but his claim was denied by the respondents. He approached the Vice-Chancellor of the University, but was informed that his representations were under consideration. The appellant later on came to know that the respondents had illegally allowed/recommended the grant of scholarship to respondent No. 4 who had obtained lesser marks than the appellant.

3. The appellant alleged that the rules/ordinances for the giving of the scholarship as also the gold medal were amended by the Executive Council of the University in the meetings held on 31-10-1974 and 1-11-1974 but the respondents had no right to amend the ordinances/rules to the detriment of the appellant and could not give any retrospective effect to the same. It was alleged that the actions of the respondents were mala fide and violative of the principles of natural justice as also Article 14 of the Constitution. The amendments made by the Executive Council of the H.P. University were challenged as being illegal and without any authority.

4. The petition was contested by the respondents, who alleged that the appellant was not entitled to the scholarship as well as the gold medal. It was alleged that the Executive Council had the authority to amend the ordinances/rules and this amendment was legal and could apply retrospectively.

5. After considering the respective contentions of the parties, a learned single Judge of this court dismissed the writ petition holding that the appellant could not succeed due to the amendment of the ordinance/rules. It was held that the Executive Council could make the amendment and there was no question of its being retrospective because the result of the appellant was declared on 14-11-1974.

6. The appellant has now challenged the judgment of the learned single Judge by filing this appeal.

7. We have heard the learned counsel for the parties.

8. Mrs. Malhotra, the learned counsel for the appellant contends that the result of the 4th semester of LL. B. examination was declared in July 1974 and the appellant applied for re-valuation after depositing the requisite fees. The re-valuation was done in Aug./Sept. 1974 but the appellant was informed in Nov. 1974. In such circumstances, the appellant should not suffer due to the mistakes of the examiners and for all intents and purposes the marks of the appellant after re-valuation should be counted as if he had obtained these marks at the time of the initial declaration of the result. She also contends that the amendment in the ordinances was unauthorised and illegal. The University had no authority to give any retrospective effect to the amendments of the ordinances, which could not prejudice the case of the appellant or deprive him of his legitimate benefits and rights.

9. The learned counsel for the respondents contends that the Executive Council had the power to amend the rules/ordinances and the amended ordinance was given a retrospective effect to avoid any hardship to the candidates. It is a just provision inserted for the benefit of the various students. It is also contended that the action of the Executive Council and the respondents is not mala fide.

10. We have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.

11. Prior to 31-10-1974 the relevant provisions regarding scholarship etc. were contained in Ordinances 16.14 to 16.19 framed by the H.P. University which read as follows :--

'16.14 :-- The Executive Council shall from time to time determine the course for which scholarships, studentships or exhibitions shall be awarded along with their number and value, but they shall be awarded subject to the following further terms and conditions : --

(a)XXXXXXXX

(b) The award shall be made to the candidate or candidates who pass every part of examination/examinations in the first attempt at which they were due to appear, and are placed in the highest order of merit, up to the number of scholarships available. If two or more candidates are bracketed in the same order of merit, entitling them for the award of scholarship both or all of them shall be awarded the scholarship. No scholarship shall, however, be awarded to a candidate, who claims less than 55 per cent marks in the aggregate or an equivalent grade point average in the case of trimester system.

(c) to (e) X X X X X X X X

16.15 XXXXXXXX

16.16 The award of medals and prizes shall be subject to the following conditions : --

(a) XXX XXX XX

(b) The award shall be made to the candidate oblianing the highest aggregate marks in the examination or subject concerned. But only those candidates shall be entitled to the award who take and pass the examination as a whole at the first attempt when they were due to appear in that examination or the part thereof.

16.17 For the award of medal or prize for an examination, a candidate must have passed the examination in the first division or with an equivalent grade average. In the case of award of medal or prize for a particular subject the candidate must have obtained First Division marks or an equivalent grade point average in the subject concerned.

16.18 to 16.19 x x X X X '

12. Now at the time of the declaration of the result (July 1974) the appellant had obtained less marks than respondent No. 4 (Khusha! Singh) and if re-valuation had not been done then the respondent No. 4 was definitely entitled to the scholarship as well as the gold medal.

13. Due to re-valuation of the two papers the appellant secured more marks than respondent No. 4 and according to the Ordinances reproduced above, he was entitled to the grant of scholarship as well as the gold medal.

14. The sole point for determination is as to whether the re-valuation of the two papers communicated to the appellant by a detailed marks-sheet on 14-11-1974 entitle him to the grant of scholarship and the gold medal when in the meantime the Executive Council of the University made amendments in the Ordinances. The H.P. University through its Executive Council proposed some changes in the Ordinances and the amended ordinances were passed by the Executive Council in their meeting held on 31-10-1974 and 1-11-1974. The relevant portions of the revised Ordinances read as follows : --

'6.70. (a) to (d) X X X X X X X X

(e) Whatever be the change in awards after re-valuation the same shall be conveyed to the candidate,

A candidate who applies for re-valuation shall not be entitled to claim any retrospective benefit such as admission/promotion to any course/class, eligibility to sit for the Medical College entrance Test, or the grant of scholarship/award/freeship/medal etc. etc., on the basis of declaration of the result of revaluation. Further that the results of re-valution declaration shall not be considered as a time-bound process.

Provided further that in case the revaluation result is received after the commencement of the subsequent examination which the applicant has taken, out of the two results i.e. one on the basis of re-valuation and the other on the basis of his performance in the subsequent examination, the result that is advantageous to the applicant will be conveyed to him.

(f) & (g) X X X X X X X X '

15. Thus according to the amended/revised Ordinances the appellant cannot be granted the scholarship as well as the gold medal, but the question is as to whether the Executive Council is competent to give a retrospective effect to these amendments incorporated in the Ordinances.

16. A candidate sits in an examination on scheduled dates along with other candidates (if any) and he competes with these candidates. All the candidates take the examination on the same date/dates. The results are also declared for a particular class of candidates on a specified date/dates and the merit of a candidate is declared on the basis of these results. In case a candidate is not satisfied with the valuation of his paper/papers and feels that the same had not been fairly valuated then he has a right to get his papers re-valuated on payment of some fees under the Ordinances framed by the H.P. University. This concession is allowed to a candidate to remove his doubts with respect to a fair valuation. On re-valuation the marks can remain the same or they may be increased or decreased. The result of a candidate on the basis of the re-valuated papers will be deemed to be his final result. In view of the above accepted position and to be fair to the candidates, if after re-valuation the marks of a candidate increase or decrease then it cannot be said that the increase or decreased in the marks was due to the fault of a candidate. The real fault in fact was of the examiner who had awarded less or more marks to the concerned candidate at the earlier stages. The result after re-valuation will be binding on the candidate and in these circumstances, this final result should be considered to have been declared on the date when the result of all the candidates was declared. If this position is not accepted then it can lead to absurd results. There can be cases where an examiner may award more marks and thus allow a person (who otherwise is not entitled to get the scholarship as well as the gold medal, or he may award less marks to a deserving candidate and thus deprive such a deserving candidate of the scholarship or the gold medal. There can also be genuine mistakes committed by the examiners in evaluating the papers and due to these genuine mistakes of the examiners a cadidate may be getting less or more marks. To deprive a candidate of his legitimate right due to the mistakes/mistakes of the examiners who are duly appointed by the university and in whose appointment the candidates have no say will to doing great injustice to the concerned candidate. In these circumstances the just, fair and reasonable criteria is that the result of an examination whether before the re-valuation or after the re-valuation should be taken to' have been declared only once. This date can either be considered to be the date of the taking of the examinations or in the alternative the date of declaration of the results of the candidates. In either of these cases all the candidates will be put at par with their rival competitors. We may also observe that the Executive Council of the University has no legislative powers and, therefore, it cannot take away the benefits which has accused to a candidate due to his having been placed in the merit with other candidates in an examination held on a specific date for all the candidates. Hence the result declared upon the re-valuation of certain papers of a candidate will date back to the date upon which the result of all the candidates including the appellant (whose papers had been re-valuated) and others who had taken the examination with him, was declared. The Executive Council of the University had no authority to amend the Ordinances retrospectively. It could only make alter or amend the Ordinances prospectively.

17. In view of the aforesaid discussion, we are of the view that the appellant who had secured more marks than respondent No. 4 after re-valuation was entitled to the grant of scholarship and the gold medal. We are informed that the same has not so far been given to respondent No. 4 by the H.P. University and, therefore, the University can easily award the scholarship as well as the gold medal to the appellant.

18. In view of the above discussion, the order of the learned single Judge is set aside and the present appeal is accepted. A direction is issued to the respondents to award the scholarship as well as the gold medal to the appellant in preference to respondent No. 4.


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