Swapna Krishna Kumar Vs. Ntr University of Health Sciences and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 2. the petitioner states that her academic career has been excellent throughout and but for the improper evaluation of the answer script in the said subject, she would have been declared passed with distinction. it is also stated that her performance in the other examinations has also been exceptional. he contends that there is no provision for revaluation of the answer scripts of the said course and that the fact that the performance of the petitioner in other subjects has been excellent, does not constitute a ground for undertaking revaluation of the answer script in the said subject. a bare perusal of the answer script discloses that the performance of the petitioner was not that sub-standard as to have been awarded the fail marks.orderl. narasimha reddy, j.1. the petitioner is a student of bachelor of physio therapy course. it is spread over four years, divided into eight semesters. she completed the study of four years and she appeared in the eighth semester examination in june 2005. eighth semester consists of five subjects. she was declared to have passed in all the subjects except the subject of rehabilitation medicine. she fell short of one mark in that subject and thereby she was not declared to have passed in the course.2. the petitioner states that her academic career has been excellent throughout and but for the improper evaluation of the answer script in the said subject, she would have been declared passed with distinction. it is stated that she secured 81.7% in the intermediate, topped the college in the first year of this course and secured gold medal in second semester of first year. it is also stated that her performance in the other examinations has also been exceptional. the petitioner seeks a direction to the respondents to get the answer script in the subject, rehabilitation medicine, revaluated by another examiner.3. when the writ petition came up for admission on 27-10-2005, the learned standing counsel took notice and he was directed to produce the answer script of the petitioner. the answer script has since been produced. the learned standing counsel made submissions on the basis of instructions. he contends that there is no provision for revaluation of the answer scripts of the said course and that the fact that the performance of the petitioner in other subjects has been excellent, does not constitute a ground for undertaking revaluation of the answer script in the said subject.4. it is true that there is no provision for revaluation of answer scripts in the course of physio therapy at undergraduate level. in the ordinary course of things, this court would not have undertaken any further examination of the matter. however, there exist certain extraordinary circumstances in the instant case. the performance of the petitioner has been brilliant and extraordinary throughout the course. but for the shortage of one mark in the subject referred to above, the petitioner would have been declared passed, and in all probability with distinction. it is no doubt true that it is always in the discretion of the examiner to award the marks on the basis of his satisfaction. at the same time, the career of the students, who are found to be otherwise bright, cannot be left to such uncertainty. a bare perusal of the answer script discloses that the performance of the petitioner was not that sub-standard as to have been awarded the fail marks. the petitioner is not aware as to who evaluated her answer script nor did she attribute any motives to anyone in the university. she is interested only in her career.5. this court is of the view that the lingering doubt in the mind of the petitioner as to the evaluation can be removed by requiring the university to get the answer script evaluated by an examiner from a different university. such a course would ensure fairness to the entire functioning of the university. if in fact, any inadvertent error has crept into the evaluation, the same can be taken care of, and thereby the bright career of the petitioner can be saved from being doomed.6. for the foregoing reasons, the writ petition is allowed and the respondents are directed to get the answer script of the petitioner in the subject of rehabilitation medicine, in eighth semester revaluated by an examiner from outside the state. for this purpose, the petitioner shall deposit a sum of rs. 1,000/- tentatively with the registrar of the university and the process of revaluation shall be completed within a period of three weeks from the date of receipt of a copy of this order.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner is a student of Bachelor of Physio Therapy course. It is spread over four years, divided into eight semesters. She completed the study of four years and she appeared in the eighth semester examination in June 2005. Eighth semester consists of five subjects. She was declared to have passed in all the subjects except the subject of Rehabilitation Medicine. She fell short of one mark in that subject and thereby she was not declared to have passed in the course.

2. The petitioner states that her academic career has been excellent throughout and but for the improper evaluation of the answer script in the said subject, she would have been declared passed with distinction. It is stated that she secured 81.7% in the Intermediate, topped the college in the first year of this course and secured gold medal in second semester of first year. It is also stated that her performance in the other examinations has also been exceptional. The petitioner seeks a direction to the respondents to get the answer script in the subject, Rehabilitation Medicine, revaluated by another examiner.

3. When the writ petition came up for admission on 27-10-2005, the learned standing counsel took notice and he was directed to produce the answer script of the petitioner. The answer script has since been produced. The learned standing counsel made submissions on the basis of instructions. He contends that there is no provision for revaluation of the answer scripts of the said course and that the fact that the performance of the petitioner in other subjects has been excellent, does not constitute a ground for undertaking revaluation of the answer script in the said subject.

4. It is true that there is no provision for revaluation of answer scripts in the course of Physio Therapy at undergraduate level. In the ordinary course of things, this Court would not have undertaken any further examination of the matter. However, there exist certain extraordinary circumstances in the instant case. The performance of the petitioner has been brilliant and extraordinary throughout the course. But for the shortage of one mark in the subject referred to above, the petitioner would have been declared passed, and in all probability with distinction. It is no doubt true that it is always in the discretion of the examiner to award the marks on the basis of his satisfaction. At the same time, the career of the students, who are found to be otherwise bright, cannot be left to such uncertainty. A bare perusal of the answer script discloses that the performance of the petitioner was not that sub-standard as to have been awarded the fail marks. The petitioner is not aware as to who evaluated her answer script nor did she attribute any motives to anyone in the University. She is interested only in her career.

5. This Court is of the view that the lingering doubt in the mind of the petitioner as to the evaluation can be removed by requiring the University to get the answer script evaluated by an examiner from a different University. Such a course would ensure fairness to the entire functioning of the University. If in fact, any inadvertent error has crept into the evaluation, the same can be taken care of, and thereby the bright career of the petitioner can be saved from being doomed.

6. For the foregoing reasons, the writ petition is allowed and the respondents are directed to get the answer script of the petitioner in the subject of Rehabilitation Medicine, in eighth semester revaluated by an examiner from outside the State. For this purpose, the petitioner shall deposit a sum of Rs. 1,000/- tentatively with the Registrar of the University and the process of revaluation shall be completed within a period of three weeks from the date of receipt of a copy of this order.