ORDER
1. The petitioner is a student and appeared for the Pre-University Course of the Department of Pre-University Education. Her subjects were English, Hindi, Psychology, Economics, Sociology and Logic. She appeared for the final examination held between 1-4-2000 and 17-4-2000. She obtained 78% marks i.e., 469 out of 600. Annexure-B is the mark list. She believes that she is eligible to secure at least 90% but that the marks awarded is low. She therefore desired revaluation of her answer papers. According to the petitioner the right of a student to have the answer script revalued is recognised by the Statute, but by framing subordinate legislation this right is taken away. She substantiates her contention by referring to the Karnataka Education Act, 1983 (hereinafter referred to as 'the Act') and the Rules framed thereunder (referred to as 'the Rules' hereinafter). In this behalf the following provisions of the Act may be noticed.
2. Section 22(2) of the Act is the material Section. The relevant part of the section reads as under:
'22(1) xxx xxx xxx xxx xxx.
(2) The Government may make rules for all matters connected with the implementation of the examination system and the conduct of the examination and the pattern of examination system to which different classes of educational institutions should conform'.
3. In essence the section empowers the Government to frame subordinate legislation and the scope of the power to frame rules is 'for all matters connected with the implementation of the examination system'. The rule making power is provided in Section 145 of the Act. In particular, Section 145(xxxii) confers power on the Government to frame rules as regards the valuation or revaluation of answer scripts. Sub-section (xxxii) reads thus:
'145(xxxii): The qualification necessary and other conditions to be fulfilled for appearing at the examinations conducted by the authorities under this Act and the method of valuation or revaluation of answer scripts'.
(emphasis supplied)
4. In other words one of the 'matter connected with the implementation of examination system' envisaged in Section 22(2) of the Act is revaluation of the answer script as well. In exercise of the power conferred under the above section, rules have been framed by the rule making authority. Rules 29 and 30 of the rules are the relevant rules. The said Rules read as under:
'29. Revaluation of answer papers.--(1) The State Government shall by a notification specify the subjects in which answer scripts may be revalued. The Department shall arrange, soon after the declaration of the results, for the revaluation of the answer scripts of the students who are not satisfied with valuation already done. Any candidate who is not satisfied with the valuation of the answer scripts in any of the subjects may apply for revaluation of such a power.
(2) The Department shall by a notification, announce the date, time and place for submitting the applications for revaluation of answer scripts and also the date of declaration of the results of revaluation. The applications submitted by the candidates for the revaluation shall be referred to a Special Committee of three examiners appointed by the Department for the purpose of revaluation. The place, time, duration of revaluation, names of the examiners and the details of answer papers referred shall be confidential.
(3) The Department may specify the fee to be paid along with the application for revaluation.
(4)(a) If there is an upward revision of marks by six percent of the total marks of the concerned paper or more after the revaluation, in any of the subjects, then the fee paid for revaluation shall be refunded to the student.
(b) If the marks awarded already remains the same or gets reduced or increased by five per cent of the total marks of the concerned paper then the amount of fee paid for revaluation shall stand forfeited.
(c) If there is an upward or downward revision of marks by six per cent to the total marks of the concerned paper or more in revaluation in respect of any answer paper, then the marks awarded in the first valuation in respect of that answer paper shall stand annulled and the fresh marks awarded in the revaluation shall only be the marks for the said answer paper and a fresh marks card shall be issued incorporating the marks awarded in the revaluation.
(5) The revaluation results shall be final and there shall be no appeal or review against revaluation.
Rule 30 of the said Rules reads as follows:
30. Issue of photocopies of valued answer scripts to candidates.--(1) The Government shall by a notification specify the subjects in which the Department shall furnish the photocopies of the answer scripts to the candidates.
(2) The Department shall specify the place and the fee payable for the supply of photocopies of the answer scripts. The candidates who apply for the photocopies of the answer scripts in the specified form within the last date notified and the Department, shall furnish the photocopies of the answer scripts on an appointed date'.
5. Rule 29(1) empowers the 1st respondent to specify by notification the subject in which the script will be revalued. The effect of Rule 29(1) would be that only such of those subjects notified thereunder would be revalued in the manner indicated by the 1st respondent. To put it plainly, by the notification the 1st respondent can indicate that the candidate will be entitled to have the revaluation only such of those subjects notified and all other subjects not notified will not be revalued. That is to say, the right of revaluation recognised by Section 145(xxxii) is taken away by the 1st respondent by means of a subordinate legislation. The rule making power conferred should be exercised for promoting or the implementation of the matters concerned with the examination namely the method of valuation and revaluation. Section 145 referred to above, confers power on the State Government to frame rule to carry out the intention of the legislature contemplated under Section 145(xxxii) of the Act. But certainly it does not contemplate making any rule for the denial of the said right. Rule 29 of the Pre-University Course State Level Public Examination Rules, 1997, impugned herein whittles down the scope of Section 145(xxxii). The Rule 29 referred to above confers a power on the Government to choose the subject in which answer scripts would be revalued. It plainly mean that other subject would not be revalued. This is contrary to the intention of Section 145(xxxii).
6. The revaluation is a right conferred by the Statute under Section 22(1) read with Section 145(xxxii) of the Act. It postulates every subject taken by the candidate could be subjected to revaluation. Likewise Section 145(xxxii) confers rule making power in the Government only to provide for method of revaluation of an answer scripts. It again does notpostulate any power to frame rules to take away the right of revaluation altogether. If any subjects are not to be revalued by means of a notification issued in exercise of its power under Rule 29 it means the right conferred under Section 22 read with Section 145(xxxii) for the revaluation of that subject is taken away. While the Statute states that a candidate is eligible to seek revaluation of all subjects, the rules framed goes beyond the purview of the Statute. The rule making power conferred under the Statute does not contemplate framing of such a rule. Obviously rule referred to above, traverses beyond the rule making power and also abridges the right conferred under the Statute.
7. Though Section 22(2) of the Act confers power on the Government to frame rules with respect to the 'pattern of Examination System' and Section 145(xxxii) relates to method of valuation or revaluation of answer scripts, it cannot be held that such wide power will enable the 1st respondent to frame a rule as in the nature of Rule 29(1) which takes away the right to seek revaluation. An interpretation which would deprives the benefit to a candidate intended to be conferred by the Statute cannot be placed on the Statute. Section 145(xxxii) is a beneficial provision and the interpretation to be placed should be such that it will advance the intention of the Statute maker.
8. The rules being framed should be for the purpose of achieving the object of the statute and not to take away or whittle down the said right. The right conferred under the Statute for revaluation of the subjects cannot be whittled down by means of a subordinate legislation. When the notification states only specified subjects will be revaluated, it means that the other subjects will not be revalued. That is contrary to Section 22(1) and Section 145(xxxii) of the Act. Obviously first part of Rule 29(1) referred to supra is beyond the rule making power.
9. Besides Section 145(xxxii) has delegated rule making power to the Government. This power is further delegated to a subordinate authority. The Government further delegate the power conferred to an Executive functionary to choose the subject and to notify when it exercises that power it virtually abridges the scope of Section 145(xxxii) itself. Plainly the delegate of the power under that Section cannot delegate its power further to a subordinate officer to choose the subject. This rule therefore suffers from the vice of the rule 'delegate potestas non potest delegari'. Besides, Rule 29(1) do not also indicate as to how the subject to be chosen for revaluation would be chosen for being revalued. No guidelines are forthcoming in this behalf. The executive is given a free hand to choose the subject to suit to its whims and fancy. That itself is arbitrary. Rule 29(1) insofar as it deprives the scope of Section 145(xxxii) and delegates unbridled power to notify the subject is clearly arbitrary and illegal and is beyond the rule making power.
10. Therefore, the petitioner is entitled to the relief sought for. The Rule 29(1) insofar as it confers power on the Government to choose by notification specifying the subjects of the Pre-University Examination which alone would be revalued is invalid and the same is struck down. The consequence thereof would be that a candidate who has taken PUCexamination is entitled to seek revaluation of any of his answer script in any subject irrespective of the notification. The following part of the Rule 29(1) which is separable shall stand deleted, namely:
'29(1) The State Government shall by a notification specify the subjects in which answer scripts may be revalued'.
Appropriate steps would be taken by the respondents in this behalf to give effect the scope of Section 22(2) of the Education Act read with Section 145(xxxii) thereof. The writ petition is disposed of as above.